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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

The TRAVELERS INSURANCE COMPANY, Appellant, v. Robert C. ECHOLS, Appellee. No. 8212. Court of Civil Appeals of Texas, Texarkana. March 12, 1974. Rehearing Denied April 9, 1974. Victor F. Hlavinka, Atchley, Russell, Waldrop & Hlavinka, Texarkana, for appellant. Doyle W. Curry, Jones, Jones & Baldwin, Marshall, for appellee. CORNELIUS, Justice. This is a workmen’s compensation suit in which appellee recovered benefits for partial incapacity. The question to be decided is whether the jury findings of good cause for appellee’s failure to timely file his claim for compensation may be sustained. The special issues and jury answers on the question of good cause were as follows : “SPECIAL ISSUE NO. 11. Do you find from a preponderance of the evidence that within six months from the date of such injury plaintiff believed through continuing negotiations with .Travelers Insurance Company that his claim for compensation was filed with the Industrial Accident Board ? Answer ‘Yes’ or ‘No’. ANSWER: Yes. “SPECIAL ISSUE NO. 12. Do you find from a preponderance of the evidence that such belief caused plaintiff to delay filing a claim for compensation with the Industrial Accident Board until such claim was filed? Answer ‘Yes’ or ‘No’. ANSWER: Yes. “SPECIAL ISSUE NO. 13. Do you find from a preponderance of the evidence that such belief was good cause for his delay in filing the claim for such period of time? “A person has ‘good cause’ for delay in filing a claim when he has prosecuted his claim with such diligence as an ordinarily prudent person would have used under the same or similar circumstances. Answer ‘Yes’ or ‘No’ ANSWER: Yes.” Appellee’s evidence on good cause, viewed in the light most favorable to the verdict, may be summarized as follows: Appellee spoke to Mr. Jones, an adjuster for Travelers, within a week of the accident and Mr. Jones assured appellee that “ . . . he would take care of everything, and wrote me a letter that he would take care of the claims, and they said everything would be taken care of, jo I didn’t feel like I had anything to really •worry about.” Appellee also testified that he told Jones he was going to see Dr. Grogan and that Jones told him, “Fine, that they would take care of everything, that I was covered on workmen’s compensation to take care of the dental work, and any other medical problems I had.” A letter was written from Jones to Dr. Grogan which stated that Travelers would provide Workmen’s Compensation for the injury received by appellee and that they would provide coverage for any damage to his permanent teeth. A medical report was enclosed which Dr. Grogan was requested to complete and return. Appellee had as many as ten discussions with Mr. Jones during the eight months period from the date of the injury to the filing of the claim for compensation ' and his last discussion with Jones was on the day that his claim was actually forwarded to Austin. Appellee and Mr. Yantis, of Travelers, also had several discussions concerning his claim, and appellee met with Dr. Guttry and another Travelers man on another occasion and they also talked about appellee’s claim. During this time medical treatment was being furnished appellee by Travelers. Both appellee and Mr. Jones testified that settlement negotiations were conducted between appellee and various Travelers agents throughout the period and that an offer of settlement was made by Travelers as late as June 23, 1971, which was the day the claim was actually mailed to the Industrial Accident Board. All of appellant’s points of error are directed to the issue of good cause. These contend that as a matter of law the evidence is insufficient to establish good cause and that the pleadings did not authorize the submission of the good cause issues. The bases for these points are that (1) the alleged representation of the insurer as to filing a claim for appellee was at most only a promise to do an act in the future, rather than the representation of an existing fact, and was therefore insufficient as a matter of law; and (2) the jury findings that appellee “believed” that his claim had been filed and that such belief was good cause are not supported by the evidence or the pleadings since appellee neither pleaded nor testified, in those words, that he “believed” that the claim had been filed. We have concluded that the pleadings and the evidence were sufficient to raise a fact issue on the question of good cause and to support the jury findings. The existence of good cause for failure to timely file a claim for compensation is ordinarily one of fact for the jury to determine. It can only be determined against the claimant as a matter of law when the evidence, construed most favorably for the claimant, admits of no other reasonable conclusion. Hawkins v. Safety Casualty Co., 146 Tex. 381, 207 S.W.2d 370 (1948). The test for good cause is that of ordinary prudence; that is, whether the claimant prosecuted his claim with that degree of diligence that an ordinarily prudent person would have exercised under the same or similar circumstances. The totality of the claimant’s conduct must be considered in determining whether he acted with such ordinary prudence. Moronko v. Consolidated Mutual Ins. Co., 435 S.W.2d 846 (Tex.Sup.1968); Hawkins v. Safety Casualty Co., supra. Appellant urges that since appel-lee’s testimony only showed that appellant’s agents represented that they “would” take care of the claim and did not represent that the claim “had already been filed”, there was merely a promise to do something in the future as distinguished from the misrepresentation of an existing fact, and that such a future promise is not sufficient. With regard to this contention, however, the following points must be considered: (1) the test for good cause in workmen’s compensation cases is not the same as the test for actionable fraud, where there must be a misrepresentation of an existing fact; (2) the claim of good cause here was not based solely upon the express representations of the insurer, but upon appellee’s belief that the claim had been filed, which belief was allegedly induced by “continuing negotiations” with the insurer which included offers of settlement, payment of medical expenses, and the representations; and (3) the totality of the circumstances, and not merely isolated incidents or statements, must be considered in determining whether good cause existed. We are unwilling, in a case of this nature, to strip from the issue of good cause its traditional test of “ordinary prudence” and impose upon it the strict test of “false representation of an existing fact” as is required in fraud cases. We find no support in the authorities for a contrary view. Texas Employers’ Ins. Ass’n v. Hudgins, 294 S.W.2d 446 (Tex.Civ.App. Waco 1956), which has been cited with approval many times, involved facts strikingly similar to those here. In addition to other circumstances the adjuster there told the claimant that, “We will send this into the Board.” Good cause was submitted, as it was in this case, by inquiring of the jury if the claimant “believed” that the adjuster had filed his claim. The jury findings of good cause were upheld. The court expressly rejected the argument that the claimant must establish the elements of legal fraud in order to sustain good cause. To the contrary, the court said that if the claimant “. . . . thought or believed in good faith from all the facts and circumstances in evidence” that his claim had been filed, that would be sufficient for good cause, regardless of whether any specific representation was made, or if made was false, or was relied upon by the claimant. A number of other cases have sustained findings of good cause where similar representations were made by using the words “will” or “would”, rather than the words “have” or “had”. Aetna Casualty & Surety Co. v. Bruns, 490 S.W.2d 879 (Tex.Civ.App. Austin 1973, no writ); Texas General Indemnity Co. v. Young-blood, 466 S.W.2d 329 (Tex.Civ.App. Fort Worth 1971, Ref’d N.R.E.); Travelers Insurance Co. v. Strech, 416 S.W.2d 591 (Tex.Civ.App. Eastland 1967, Ref’d, N.R. E.); American Employers Ins. Co. v. White, 331 S.W.2d 836 (Tex.Civ.App. Eastland 1960, Ref’d, N.R.E.); Trinity Universal Ins. Co. v. Christian, 289 S.W.2d 656 (Tex.Civ.App. Amarillo 1956-, Ref’d, N.R.E.); Texas Employers’ Insurance Ass’n, v. Hudgins, supra; Texas General Indemnity Co. v. McNeill, 261 S.W.2d 378 (Tex.Civ.App. Beaumont, 1953, no writ); Maryland Casualty Co. v. Merchant, 81 S. W.2d 794 (Tex.Civ.App. Dallas 1935, no writ). Appellant relies upon Consolidated Casualty Insurance Co. v. Perkins, 154 Tex. 424, 279 S.W.2d 299 (1955) for support of its contention that a future promise is insufficient, but Perkins is distinguished from this case. In Perkins the court held that the mere promise that the claimant would sometime in the future be told when he should file his claim was insufficient. There is an important difference between telling a claimant that he will be advised when he will have to file his claim and in telling him that someone else will take care of the filing for him. In the former example, as in Perkins, the claimant is alerted that the burden is upon him to file the claim; whereas in the latter example, the claimant may be lulled into a false sense of security because he has depended upon someone else for the filing of the claim. Appellant urges that the pleadings and the evidence did not authorize the submission of the issues of good cause based on appellee’s belief that his claim had been filed. In a trial amendment appellee alleged that repeated discussions between him and agents of the insurer took place involving the settlement of his claim, in which the insurer agreed that it would provide workmen’s compensation benefits for his injury, as well as medical treatment, and that settlement negotiations continued and remained open until the claim was actually filed. Appellee also pleaded that during these times he was told that he did not need to file anything in Austin, and that it was already taken care of and that he relied upon same. In his testimony ap-pellee did not use the words “had already been taken care of” in referring to the insurer’s representation about the filing, but he said he did not file his claim earlier because of the assurance that he was covered and that they would take care of everything, and “ . . . so I didn’t feel like I had anything to really worry about.” We believe the effect of all of the pleadings and such testimony, reasonably construed, was that appellee was induced to believe that his claim had been filed and that he was not required to do anything further, and that this belief continued until he discovered the contrary, at which time he promptly filed his claim. Circumstances may be sufficient to prove belief without the necessity of the actual word “belief” being used in the, testimony. Similar fact situations involving settlement negotiations, payment of medical expenses, and representations have been held sufficient to support jury findings of good cause in the cases of Trinity Universal Insurance Co. v. Christian, supra; Derr v. Argonaut Underwriters Ins. Co., 339 S.W.2d 718 (Tex. Civ.App. Austin 1960, Ref’d, N.R.E.); Texas Employers Ins. Ass’n v. McDonald, 236 S.W.2d 817 (Tex.Civ.App. Austin 1951, Ref’d) ; Fidelity & Casualty Co. of New York v. Ener, 97 S.W.2d 267 (Tex.Civ. App. Beaumont 1936, no writ) ; and Texas Employers’ Ins. Ass’n v. Jones, 70 S.W.2d 1014 (Tex.Civ.App. San Antonio 1934, dismissed). Submission of the issues of good cause in the manner used here was approved in Texas Employers Ins. Ass’n v. Hudgins, supra. The ultimate issue in a case such as this is the claimant’s belief that the claim had been filed. See Texas Pattern Jury Charges, Sec. 24.02. Appellant’s points of error are respectfully overruled and the judgment is affirmed.

sw2d_508/html/0426-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Linda FOX, Individually and as next friend of Cary Fox, Appellant, v. AMERICAN PROPANE, INC., et al., Appellees. No. 12113. Court of Civil Appeals of Texas, Austin. April 10, 1974. Dale E. Muller, Austin, for appellant. Thomas S. Goggan, Charles Morris, Garey & Morris, J. Terry Weeks, Austin, for appellees. PHILLIPS, Chief Justice. Appellant brought this suit for damages caused by an alleged conversion of a mobile home. Trial was to a jury which found the fair market value of the mobile home to be $5,695.00, found that the appel-lees acted in concert and with malice in “moving” the mobile home and assessed exemplary damages against appellees for $7,235.00. Disregarding the jury’s findings, the trial court rendered judgment notwithstanding the verdict that appellant take nothing. We affirm this judgment. Appellant is before this Court on nine points of error which present, essentially, two questions. The first is the question of whether there was a conversion of the trailer. The second is that of damages. I. Appellant and her husband bought a mobile home in November, 1971, and financed it through the Republic National Bank in Dallas. The mortgage note was for $6,839.75 which appellant and her husband agreed to repay in 120 months at a monthly payment of $114.80. Appellant and her husband paid $200.00 down, made one, or perhaps two, monthly payments then fell in arrears. Appellant and her husband moved the mobile home onto a lot in a mobile home park operated by appellee Lambert. Rent was payable on a month-to-month basis and was paid through January, 1972. Appellant’s husband died sometime in January and appellant moved out of the mobile home and took her small child with her. Appellee Lambert testified that he made daily trips to the home from January 10, 1972, until February 2, 1972 (the date the home was moved), to ascertain the whereabouts of appellant and the status of the mobile home. He testified that the mobile home appeared to be vacant during that period of time. He had been informed that appellant’s husband was dead and that appellant was looking for someone to take up payments on the mobile home. Appellee Daily, who owned the Propane Company, had an $80.00 unpaid bill for propane used by appellant and her husband. He testified that he made inquiries to the Republic National Bank in Dallas concerning the status of the mobile home. He was informed that the bank had a lien against the home, that the payments were in arrears, and that the bank intended to repossess the unit. He informed the bank of his intention to move the mobile home to another location on the same lot and received its permission for the move. The water and gas connections to the trailer were then severed, the electricity unplugged, the blocking removed, and the trailer was then towed some 70 yards to another part of the same trailer lot. There is no evidence that the appellees locked, fenced, chained or otherwise interfered with the mobile home. Thus, we become faced with the question of whether the act of moving the mobile home as described above constituted a conversion as a matter of law. In 42 Cornell Law Quarterly, page 168, Professor William L. Prosser in an article entitled, “The Nature of Conversion,” cites Fouldes v. Willoughby, 8 M. & W. 540, 151 Eng.Rep. 1153 (Exch.1841), where the plaintiff went on board the defendant’s ferryboat, taking with him two horses. The defendant wrongfully refused to carry the horses, and put them on shore. The plaintiff remained on the boat and was conveyed across the river, as a result of which he lost his horses. In an action of Trover, it was held that the mere act of removing the horses from the boat, although it was actionable as a trespass, did not amount to the tort of conversion. Three judges struggled at length with the distinction, all of them endeavoring to express the fundamental idea that a conversion must be some act which denies or defies the plaintiff’s right to ownership of his chattel. Baron Alderson seizing upon a word used in the argument of counsel said that it must be “an act inconsistent with the general right of dominion which the owner of the chattel has in it.” Professor Prosser then states that “dominion” has haunted the conversion cases ever since. He points out that it is a difficult word which has been at best a negative aid. If the defendant merely takes the plaintiff’s horse by the bridle and leads it a few steps, it is certainly to some extent an exercise of dominion, authority, sovereignty or control over the horse, and it is certainly to some extent an act inconsistent with the plaintiff’s “general right of dominion” which must include the right not to have his horse interfered with. Yet this illustration was given by Lord Abinger in Fouldes, above, as an example of a mere trespass, not amounting to a conversion. Subsequent decisions, according to Pros-ser, have held that if the unauthorized use results in substantial damage to the chattel or the use itself is an important interference with the rights of the plaintiff, there is a conversion. Conversion has been confined, in effect, to those major interferences which are so important, or serious, as to justify the forced judicial sale of the chattel to the defendant which is the distinguishing feature of the action. In Waisath v. Lack’s Stores, Inc., 474 S.W.2d 444 (Tex. 1971), the Supreme Court defines conversion as the wrongful exercise of dominion and control over another’s property in denial of or inconsistent with his rights. Another definition given in that case states “. . .to the exclusion of or inconsistent with [his] rights (Emphasis added) In applying this test, the court held that thirty pieces of furniture belonging to the plaintiffs and wrongfully transported by defendants to their downtown store where plaintiffs were denied access to the furniture was a conversion. The court also held that where defendant wrongfully used plaintiffs’ furniture in an apartment for which defendant was collecting rent was also a conversion. In Bush v. Lane, 193 Cal.App.2d 376, 293 P.2d 465 (1956), the court held that to establish conversion an intention or purpose to convert the goods must be shown in addition to the exercise of ownership over them; or, the owner must be prevented from taking possession of his property. The facts before us do not fall into the pattern of cases which hold that a conversion has taken place. While appellees did remove utility connections from the mobile home along with its underblocking, there is no evidence that appellees denied or in any way excluded appellant from access to the mobile home. Like “leading the horse by the halter” (albeit the tether rope was unloosed), appellees moved the chattel some 70 yards within the mobile home park, undamaged, where appellant had access to it at all times. Neither was any intent nor purpose to convert the goods shown. Appellees’ action, at most, was a trespass and nothing more. II. Should we be in error as to the question of conversion, appellant is still precluded from recovery in that she has failed to show any damage. A successful suit for conversion amounts to a forced sale, and a judgment must provide that upon payment of a money judgment the ownership of the property is to vest in the defendants. Shroeder Lumber Co. v. Min-erales y Metales, S.A.I., 331 F.2d 135 (5th Cir. 1964). The jury found the fair market value of the mobile home to be $5,695.-00. However, the record discloses that the bank held a mortgage against the unit in excess of this amount. Consequently, appellant has no equity of redemption. In Kennann v. Deats, 258 S.W.2d 145 (Tex. Civ.App.1953, writ ref. n. r. e.), under a similar fact situation, the court held that in conversion cases, compensation for injury is the result to be obtained, and while wrongdoer is not allowed to profit from his own wrongdoing, the same rule should apply to the party allegedly aggrieved. The court observed, “ . . .if appellee is paid his $2,000 judgment and the finance company takes the Pontiac automobile for its debt and lien, appellants have had nothing for their $2,000 but a rich experience in the field of litigation while appellee has turned a net profit of $1,500 on the original $500 which he alleges he paid in cash to the tenant of the appellants.” Also see: Terry v. Spearman, 259 S.W. 563 (Tex. Civ. App. 1924). Inasmuch as appellant has neither pleaded nor proved any other actual damage for which she can recover, we must set aside the jury’s award of exemplary damages. 17 Tex.Jur.2d Damages, § 177. Finally, we notice appellant’s point seeking a remand of the case in order that it can be retried on a different theory neither pleaded nor proved at trial. We must reject this point. There can be no reversal unless there is error. There being no error in the trial court’s judgment in this case, the judgment must be affirmed. . Nor is Holland v. Lesesne, 350 S.W.2d 859 (Tex.Civ.App.1961, writ ref. n. r. e.) relied upon by appellants in point. In Holland the defendant removed the plaintiff’s property and placed it in storage in the defendant’s name. The Court held that the plaintiff was not obligated to accept the defendant’s offer to return the proiierty and could elect to sue for conversion. . Zaslow v. Kroenert, 29 Cal.2d 541, 176 P.2d 1 (1946) ; Shea v. Inhabitants of Milford, 145 Mass. 525, 14 N.E. 769 (1888) ; O. J. Gude Co. v. Earley, 25 Mise. 502, 54 N.Y.S. 998 (1898).

sw2d_508/html/0429-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

STATE BAR of Texas et al., Appellants, v. Fred A. SEMAAN, Appellee. A. L. HERNDEN, Appellant, v. STATE BAR of Texas, Appellee. Nos. 15258, 15275. Court of Civil Appeals of Texas, San Antonio. March 13, 1974. Rehearing Denied April 17, 1974. Paul M. Green, San Antonio, Davis Grant, Austin, for appellant in 15258. James W. Stubbs, Jr., Haase & Deyeso, San Antonio, for appellant in 15275. Sam C. Bashara, San Antonio, for appel-lee in 15258. Damon Ball, San Antonio, for appellee in 15275. BARROW, Chief Justice. On January 25, 1973, the State Bar of Texas, acting through the Grievance Committee for District 20, issued formal reprimands to Fred A. Semaan, Esq., and A. L. Hernden, Esq., because of “letters to the editor” written by said attorneys which were published in the San Antonio Express. Suits were timely filed by each attorney to set aside his reprimand. See: Rules Governing the State Bar of Texas, as adopted by members of the State Bar of Texas and promulgated by the Supreme Court of Texas, as amended to December 20, 1971. Motions for summary judgment were filed in each case by the State Bar and the attorney. The motions for summary judgment in the Semaan suit were heard by Hon. B. B. Schraub, Judge of the 25th Judicial District Court, pursuant to administrative assignment. The motion of State Bar was denied; Mr. Semaan’s motion was granted; and judgment was entered setting aside the finding of professional misconduct and ordering that the formal reprimand of Mr. Semaan be set aside and held for naught. State Bar has perfected an appeal from such summary judgment. The motions for summary judgment in the Hernden suit were heard by Hon. Walter Loughridge, retired Judge of the 37th Judicial District Court, pursuant to administrative assignment. Mr. Hernden’s motion was denied; State Bar’s motion was granted; and judgment was entered whereby the formal reprimand of Mr. Hernden was affirmed. Mr. Hernden has perfected an appeal from this summary judgment. The three letters which formed the basis of the formal reprimands are all related, and the reprimands were issued after a joint hearing before the Grievance Committee. We have, therefore, consolidated said appeals for the purpose of this opinion. True and correct copies of these letters are in the summary judgment record and the authorship of each is admitted. The following facts are established. On October 27, 1972, the San Antonio Express published an editorial captioned “Judge’s View of Law Wrong” wherein the editor criticized District Judge John Benavides for ordering a reporter to ignore testimony taken and transcribed in the court record while the jury was out of the courtroom. In apparent response to this editorial, Mr. Semaan wrote a “letter to the editor” identified herein as Letter No. 1, which was published November 1, 1972, wherein he agreed with said editorial. He then went on to compare Judge Benavides unfavorably with three other named criminal court judges in Bexar County in regard to the former’s knowledge of the law and courage to rule fairly and impartially. He concluded: “Standing beside these men, John Ben-avides is a midget among giants.” These last three words were taken by the editor as the caption for said letter which was published above Mr. Semaan’s name. Letter No. 1 was seen in the newspaper by Mr. Hernden and in response thereto, he wrote a letter which was published on November 3, 1972, and is identified as Letter No. 2. After identifying himself, “[a]s an attorney who has tried cases as a defense attorney before all criminal district judges here . . .,” Mr. Hernden proceeded to highly praise Judge Benavides. Mr. Hernden further wrote that Mr. Se-maan’s criticism of Judge Benavides was based on the fact that Judge Benavides, when an assistant District Attorney, had fought Mr. Semaan “ . . . toe-to-toe and blow-by-blow . . .’’in the courtroom. This letter was captioned “Judge Benavides Praised” and published over the name “A. L. Herndon [sic].” Mr. Semaan replied with Letter No. 3 to the editor, which was published on November 9, 1972. He first belittled Mr. Hern-den as an attorney. He replied to Mr. Hernden’s explanation of Mr. Semaan’s disapproval of Judge Benavides by writing : “I have had a lot of cases where the district attorney fought me ‘toe-to-toe and blow-by-blow,’ but I can’t remember any such trial with John Benavides and I don’t think he can remember one either.” The letter was published with the caption “Disagrees with Writer” over the name of Mr. Semaan. The Grievance Committee found that Mr. Semaan’s Letter No. 1 constituted unnecessary personal criticism of Judge Ben-avides and that his Letter No. 3 was self-laudatory and contained unnecessary personal criticism of a fellow attorney. It was concluded that such acts constituted professional misconduct in violation of the Code of Professional Responsibility of the State Bar, to wit: DR 1-102 (A)(5) and DR 2-101 (A). The Committee ordered a formal reprimand to be published in the Texas Bar Journal. The Grievance Committee found that Mr. Hernden’s Letter No. 2 was self-laudatory and contained unnecessary personal criticism of Mr. Semaan. It was, therefore, found that such action constituted professional misconduct and violated the Code of Professional Responsibility of the State Bar, to wit: DR 2-101 (A) and DR 1-102(A)(5). It ordered a formal reprimand to be published in the Texas Bar Journal. By order dated December 20, 1971, the Supreme Court amended Articles XII and XIII of the State Bar Rules by promulgating a Code of Professional Responsibility consisting of nine Canons of Ethics, and the Disciplinary Rules thereunder, to replace the 43 Canons of Ethics then in effect, and by making other procedural changes. On January 22, 1972, the State Bar Board of Directors adopted a number of Ethical Considerations preceding the Disciplinary Rules. The Texas Code of Professional Responsibility is similar, with minor changes to accommodate local practices, to that adopted by the American Bar Association in 1969, and which has now been adopted in at least 46 other states. In a preliminary statement to the A.B.A. Code, it is pointed out that the Disciplinary Rules are mandatory, whereas the Ethical Considerations are aspirational in character. However, it is said that the latter constitute a body of governing principles upon which the lawyer can rely for guidance in many specific situations. Jones, Jr., The Texanization of the A.B.A. Code, 23 Baylor Law Rev. 689, 698 (1972). DR 1-102 sets out six areas which constitute misconduct by an attorney. Both Mr. Semaan and Mr. Hernden were found to have violated Subdivision (A) (5) thereof, to wit: “Engage in conduct that is prejudicial to the administration of justice.” Specifically, Mr. Semaan’s Letter No. 1 was found to constitute unnecessary personal criticism of Judge Benavides, and his Letter No. 3 contained unnecessary personal criticism of a fellow attorney. Mr. Hernden’s Letter No. 2 was also found to contain unnecessary personal criticism of a fellow attorney. The Grievance Committee concluded that these actions constituted conduct prejudicial to the administration of justice. It is urged by the Grievance Committee that the fifth subdivision correlated to the first part of repealed Canon No. 1, which required an attitude of respect to the courts. Undoubtedly, respect to the courts is essential to the administration of justice under our system of government by rule of law. However, it is seen that with the repeal of Canon No. 1, the only specific limitation on criticism of a judicial officer is set forth in DR 8-102(B) which provides: “A lawyer shall not knowingly make false accusations against a judge or other adjudicatory officer.” Furthermore, EC 8-6 expressly recognizes the right of a lawyer as a citizen to publicly criticize adjudicatory officials if motivated by desires to improve the system, and if done in a proper manner. Such right is particularly meaningful where, as in Texas, the adjudicatory officials are selected through the elective system. This Ethical Consideration also charges attorneys to defend such adjudicatory officials against unjust criticism. It is our opinion from an examination of Letter No. 1 that the trial court did not err in concluding as a matter of law that Mr. Semaan was not guilty of unprofessional conduct in violation of DR 1-102, Subdivision (A)(5) in his criticism of Judge Benavides. The criticism related entirely to the writer’s opinion of Judge Benavides’ qualifications for office. The issue of “truth and falsity” of the criticism was not involved, nor was the question of improper motive. It is urged by the disciplined attorneys and the Texas Civil Liberties Union, by amicus curiae, that the letters in question contain only constitutionally protected speech. It is recognized that persons who make derogatory statements about public officials, including judges, are protected by the First and Fourteenth Amendments of the United States Constitution from imposition of civil and criminal liability, unless the statement is made with knowledge that it is false or with reckless disregard of whether it is false or not. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964). Such protection against imposition of civil or criminal liability undoubtedly extends on the same terms to lawyers, at least for utterances made outside the course of judicial proceedings. However, it has not been authoritatively determined as to the extent of any attorney’s protection from imposition of discipline by the Bar. See: In re Sawyer, 360 U.S. 622, 79 S.Ct. 1376, 3 L. Ed.2d 1473 (1959). It has been held that the constitutional privilege against self-incrimination is available to a lawyer in a disbarment proceeding. Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967). It is apparent from the language of the unanimous opinion in Garrison v. Louisiana, supra, that any bridle upon a free flow of information to the people concerning the performance and qualifications of public officials will have little chance of gaining constitutional approval. On the other hand, we see nothing in these opinions which would bar disciplinary action insofar as same relates to the Code’s prohibition against solicitation. We have found no Canon or Disciplinary Rule in the Code of Professional Responsibility specifically relating to criticism of fellow attorneys. We recognize that such actions, where conducted in a public forum of any nature, would usually be in poor taste, as well as unprofessional, and in extreme situations could even be prejudicial to the administration of justice. However, it cannot be said that isolated incidents of the nature contained in either Letter No. 2 or 3 raise a fact issue of professional misconduct as prohibited by DR 1-102. A more difficult question is presented by the findings of the Grievance Committee that Letters Nos. 2 and 3 were professionally self-laudatory within the prohibition of DR 2-101 (A). One of the deepest traditions of the organized Bar is the prohibition against solicitation. Drinker, Legal Ethics, Sanctions of Professional Conduct, p. 29 (1953). Repealed Canon 24 of the Texas Canons of Ethics provided in part: “Indirect advertisements for professional employment such as furnishing or inspiring newspaper comments about causes in which the member is engaged or the importance of the member’s position, and all other like self-laudation should be avoided.” The importance of this provision is illustrated by an examination of the published opinions by the Texas Ethics Committee. A 1966 survey showed that of 306 Texas opinions, Canon 24 was cited in 147 opinions. The provision was narrowed somewhat with the adoption of the Code of Professional Responsibility in that DR 2-101 (A) provides: “A lawyer shall not prepare, cause to be prepared, use, or participate in the use of, any form of public communication that contains professionally self-laudatory statements calculated to attract lay clients We are here concerned with the narrow review permitted where motions for summary judgment have been granted. See: Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970). The question before us in the Semaan case is whether it was shown as a matter of law that Mr. Semaan’s letter, wherein he describes himself as one who has “ . . . had a lot of cases where the district attorney fought me ‘toe-to-toe and blow-by-blow’ . . .,” was not professionally self-laudatory calculated to attract lay clients. On the other hand, the question in Mr. Hernden’s appeal is whether his statement that he is “. . . an attorney who has tried cases as a defense attorney before all criminal district judges here . . .” was, as a matter of law, professionally self-laudatory calculated to attract lay clients. To determine such questions, it is necessary to first examine the nature of the suits filed to set aside the reprimand of the Committee. Section 28 of the State Bar Rules provides in part: “If the court shall find from the evidence in a case tried without a jury, or from the verdict of the jury, if there be one, that the defendant is guilty of no professional misconduct, .” Therefore, the trial of a suit filed to set aside a reprimand is a de novo trial and governed by the rules of evidence applicable to a civil suit. A court reporter s transcript of the hearing before the Grievance Committee was filed in Mr. Hernden’s suit and excerpts from said transcript were filed in Mr. Semaan’s suit. In State v. Sewell, 487 S.W.2d 716, 719 (Tex. 1972), the Supreme Court considered the status of proceedings before a Grievance Committee. It said: “The Grievance Committee is an administrative agency of the judicial department and is the arm of the Supreme Court in the discharge of its professional policing duties.” There is no provision in the State Bar Rules to authorize consideration of a transcript of the Committee’s proceedings as original evidence in the de novo trials. Since there was no stipulation in either case to permit same to be considered as evidence, such transcript or excerpts therefrom were not competent summary judgment proof. See Cruz v. City of San Antonio, 424 S.W.2d 45 (Tex.Civ.App. —San Antonio 1968, 440 S.W.2d 924 [Tex.Civ.App. — Waco 1969, no writ]). Thus, we are left with only the admitted authorship of the letters. While serious argument can undoubtedly be made as to whether such was the purpose, a fact issue is raised as to whether either letter is professionally self-laudatory. See Opinion No. 273 (November 1963), State Bar Ethics Committee, 18 Baylor Law Rev. 346 (1966). Assuming that either letter was found to be professionally self-laudatory, there still remains the question as to whether same was calculated to attract lay clients. After careful consideration of such letters, we cannot say that a fact issue is raised by either letter on this point. Mr. Hernden’s statement regarding his experience was necessary to show the basis for his defense of Judge Benavides, and particularly his comparison of Judge Ben-avides with the other criminal district judges. Mr. Semaan’s statement regarding his many hard-fought trials was necessary in his reply to Mr. Hernden’s explanation for Mr. Semaan’s criticism of Judge Ben-avides. We, therefore, affirm the judgment setting aside the formal reprimand of Mr. Se-maan. The summary judgment granted State Bar against Mr. Hernden is reversed and judgment here rendered granting Mr. Hernden’s motion for summary judgment. Accordingly, the finding of professional misconduct against Mr. Hernden and the formal reprimand issued thereon is set aside and held for naught. . DR 1-102(A) (5) : A lawyer shall not: Engage in conduct that is prejudicial to the administration of justice. DR 2-301(A) : A lawyer shall not prepare, cause to be prepared, use, or participate in the use of, any form of public communication that contains x>rofessionally self-laudatory statements calculated to attract lay clients.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

JUSTICE LIFE INSURANCE COMPANY, Appellant, v. Ray R. WALKER, Appellee. No. 17488. Court of Civil Appeals of Texas, Fort Worth. March 22, 1974. Rehearing Denied April 26, 1974. Stanley S. Crooks, Dallas, for appellant. Law Offices of Yarborough & Pope, Inc., and Frank H. Pope, Jr., Bedford, for appellee. OPINION MASSEY, Chief Justice. Plaintiff Ray R. Walker possessed a policy of hospital and surgical expense insurance issued to him by defendant Justice Life Insurance Company. By provisions on the face of the policy contract it was in force and effect at times material to the instant case. Plaintiff filed claim with defendant insurance company for benefits provided by its policy. The company denied liability and asserted right to avoid all contractual obligations. It tendered back to plaintiff all the premiums paid. The tender was refused. Subsequently the company filed suit in a County Court at Law in Dallas County to cancel the policy (or for judicial declaration that it was properly avoided). Service of citation upon the defendant in said suit (plaintiff Walker in the case before us on appeal) was accomplished on March 12, 1973. On March 23, 1973, plaintiff filed suit against the defendant insurance company in a District Court of Tarrant County. Service of citation thereon upon W. M. Thomas, defendant’s President, was obtained March 29, 1973. No answer was filed. On May 7, 1973, plaintiff filed — in the same suit — his First Amended Original Petition. Plaintiff directed that service thereof be obtained by the Sheriff of Dallas County, Texas, and that official accomplished service of this new citation upon W. M. Thomas, President, on May 11, 1973. Defendant insurance company failed to file any answer to either the original petition of the plaintiff or the amended petition last filed. It appears that no answer was ever filed, even by time of the hearing of the motion for new trial. On June 18, 1973, plaintiff moved for judgment by default (the return on both citations, as stated in the judgment, having been on file for more than eleven days). Plaintiff proceeded, upon the hearing held that date, to prove the liability of defendant upon the policy. Such proof was unnecessary as will he observed from what is later written. Plaintiff sought at the same time to prove in addition the amount of damages, penalties and attorney’s fees which would be his entitlement as a consequence of defendant’s liability. There was deficiency in the proof of the damages, as will be observed from what is later written. Judgment for damages, penalties and attorney’s fees was signed and entered on June 22, 1973. Defendant filed its Motion to Set Aside Default Judgment and Grant a New Trial on June 29, 1973. A full hearing was held upon the motion for new trial. The trial court overruled the motion and the defendant appealed. We affirm in part, and in part reverse and remand. Chief Justice Hickman, when a member of the Commission of Appeals, re-announced in slightly altered language the previously established rules relative to the tests to be applied to motions to vacate default judgments and to grant new trials where the default judgment was taken by one party litigant upon the failure on the part of the other to timely file an answer to a complaint, as follows: “ . . . A default judgment should be set aside and a new trial ordered in any case in which the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; provided the motion for a new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff. . . .” Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126 (1939). In the instant case, since we believe there to be no doubt upon the hearing of its motion that the defendant did establish the fact that it had a meritorious defense, the question is whether, under the rules pertinent to be applied in such a situation, the trial court’s action in refusing to grant the new trial was an abuse of discretion as revising to find for the movant that its failure to answer was (1) not intentional, and/or (2) was not the result of conscious indifference on its part. Our holding is that under the circumstances of this case there was no abuse of discretion on the part of the trial court in refusing to make such a finding in behalf of the defendant upon the facts shown; that there was not reversible error in refusing to upset the judgment, on the showing made, either as applied to the adjudication of liability or as applied to the adjudication of the amount of damages, etc., because of the liability. (This, though we have decided that issues on damages must Be tried anew.) The attorney for the defendant insurance company accepts complete responsibility for the.failure to answer. His testimony, and that is all that there is upon the matter, is that though the citation originally served was promptly delivered to him he directed his office personnel that it be filed in the papers of the suit first mentioned, that in the Dallas County Court to cancel the policy of insurance. Further, that he gave it no further attention; and that though the second citation was likewise promptly delivered to him for his action he made like direction as to the filing of its among those papers in his office and then forgot about it. Further, that when his client called and inquired whether he had filed answer in the case he assured the client that answer had been filed “because I felt that it had, it was our usual procedure and routine.” Defendant’s attorney gave the additional reason for his inattention as having been because of his heavy trial docket and the fact that he was in and out of the country and did not properly check into the matter of answer being filed. The acts or omissions to act by the attorney, agent for the insurance company, became those of such defendant. Not to be forgotten is the fact that the trial court was dealing with a case of pure equity, albeit the particular situation is one where we must be guided by the liberal rule announced in Craddock v. Sunshine Bus Lines, supra. But in a situation where there is not merely one citation but two served upon a defendant in a single case, both of which he fails to answer, our holding is that the court is entitled to refuse to find as a matter of fact that the failure to answer was (1) not intentional, and/or (2) was not the result of conscious indifference; and the court’s refusal to so find is not an abuse of discretion. We have found no case exactly like unto that here presented. In arriving at our conclusion and holding we have been aided by the text of 4 McDonald, Texas Civil Practice, 1971 Revised Volume, under “New Trial”, Sec. 18.10.1, “(Grounds for New Trial) B. After Judgment by Default or in Defendant’s Absence, Equitable Grounds. (I) General”, and 18.10.2, “— (II) Requirements, (a) Reason for Failure To Answer or Attend”, and the cases thereunder cited. Having disposed of the matter of propriety in overruling defendant’s Motion to Set Aside Default Judgment and Grant a New Trial, we proceed to the question of reversibility of judgment for errors attendant to its rendition. In Texas, ever since Wellborn v. Carr, 1 Tex. 463, 470, the rule has been that all the allegations in a bill of pleading not traversed by the answers are to be taken as admitted. Brill v. Guaranty State Bank, 280 S.W. 537 (Tex.Com.App., 1926, opinion adopted by Supreme Court); other cases annotated under Texas Digest, “Pleading”, “Admissions by failure to traverse or deny”. See 8 A.L.R.3d 1070, Annotation: “Necessity of Taking Proof as to Liability Against Defaulting Defendant”. The qualification of such a rule, existent when a defendant though having filed no answer appeared and participated in the hearing with no objection by plaintiff is without application to the instant case. The few exceptions such as divorce cases, etc., are also without application. Thus, there having been no answer by the only defendant at the time of the hearing in the trial court — and such defendant not being present, the allegations of the plaintiff which support the judgment are to be taken as confessed for the purpose of establishing the defendant’s obligation by contract. The same would likewise by true had the damages sought been liquidated damages. It is only in the event the damages to be assessed in a case are un-liquidated that they are not confessed as a consequence of the defendant’s failure to answer. Where the damages are unliqui-dated there exists necessity that they be proved. In the instant case there was necessity to prove damages by evidence for their character was that of unliquidated damages. We have discovered no case specifically holding that the amount due by an insurance company upon a “Hospitalization and Surgical Expense Policy”, or analogous policy of insurance, was an unliqui-dated amount necessary to be proved at any hearing upon the amount to be assessed by judgment pursuant to default on the part of the defendant insurance company. Nevertheless such is our holding. Guides to such conclusion were found in 17 Tex.Jur.2d, p. 218, “Damages”, Sec. 151, “(Liquidated Damages) — In general”; and at p. 258, Sec. 190, “(Procedure for Ascertaining and Assessing Damages — Generally) — Determination of amount”; 25 Words & Phrases, “Liquidated Damages”, p. 585, Sub. “Unliquidated damages distinguished”. The amount, per day of hospitalization, per operation, per service rendered as contemplated by the policy, etc., are unliqui-dated in nature and as such are necessary to be proved though the amount to be paid upon such proof be proved in writing — as fixed by the written provisions of the policy contract. Taken together it seems obvious that since the first stated items are to be made certain by proof outside the provisions to be found within the written contract, with the provisions upon amounts payable to be found therein applied thereto so that the amount of contractual liability may be ascertained, damages thus determinable are unliquidated damages. Therefore, we are obliged to refer to the statement of facts of the evidence presented at time the issues on damages were tried. By contract is provided the obligation of the defendant insurance company to pay to or in behalf of the plaintiff benefits to the extent of expense actually incurred incident to confinement in a hospital, as follows: “If any member of the Family Group shall be necessarily confined within a Hospital recognised as such by the American Hospital Association, the American Medical Association or the American Osteopathic Association . . . the Company will pay . . . for the following items of hospital expense actually incurred by the member of the Family Group, . . . (here follows various 'no limit’ benefits payable for prescribed hospital services, and other stated benefits as to which a limitation upon the amount of liability is made, including limitation of $40.-00 per day for Hospital Room).” (Emphasis supplied.) Nowhere in the evidence was there any proof which could be said to establish as a matter of fact that either of the two hospitals involved, expenses for services of which provide a basis for plaintiff’s claim, were recognized by the American Hospital Association, the American Medical Association or the American Osteopathic Association. Contractual provision of the policy did not make such evidence a condition precedent; rather did the contractual provision set out the amount its liability for expense payment would be, and for what expenses. The evidence failed to show that a major part, if not all, of the expenses for which plaintiff sued qualified as expenses for which the contract provided payment. There are points of error complaining that the evidence did not show that doctors in the case were “licensed” as required by policy provisions relative to expenses covered contractually. These are overruled. Testimony in the record concerning circumstances of referral to and methods of examination and treatment afforded by the doctors raised presumption that they were fully licensed physicians, and as such were not practicing medicine in violation of law. Kirk v. Standard Life and Accident Insurance Co., 475 S.W.2d 570 (Tex.Sup., 1972). The majority of expenses for which plaintiff recovered judgment were hospital expenses. A minority of such expenses were based upon the services of physicians, etc., and it is obvious that a judgment merely for the expenses incident thereto would not be acceptable to plaintiff. Hence, there would be no possibility of re-mittitur which would eliminate necessity for another trial. We hold that by the trial from which the appeal was taken plaintiff had established the fact of liability on the part of the defendant insurance company, but that the amount of damages to which plaintiff is entitled because of such liability has not been established. A proper amount, as damages, has not been established because of the insufficiency of the evidence to show what portion of the claimed hospital expenses, if any, were incurred in hospitals recognized by the American Hospital Association, the American Medical Association or the American Osteopathic Association. Such not being shown by sufficient evidence, there likewise would be an insufficiency of evidence to support the judgment as same relates to penalties and attorney’s fees. By proper construction of the law under Texas Rules of Civil Procedure, rule 243, “Unliquidated Demands”, the plaintiff, since he possessed entitlement to the default judgment on the contract, continues in his right though there be reversible error in the judgment as applied to the amount of damages in the judgment. Plaintiff could have taken his default judgment as applied to liability, leaving until a later time the hearing at which he would introduce proof upon the amount of his damages. Such deferred hearing is called a writ of inquiry. On hearing the subject of inquiry would be the matter or proper amount for which judgment should be rendered. Thus is made plain that what plaintiff possessed was an interlocutory judgment upon liability, and, from our discussion at the early part of this opinion, there was not shown any reversible error in the granting of such to plaintiff. Hence, plaintiff’s judgment in that regard should not be disturbed on appeal. What occurred, by operation of law and without entry of an order to such effect, was trial of the separate issue of plaintiff’s damages because plaintiff was already entitled to his default judgment (as demanded) upon the liability issue. For analogy see T.R. C.P. 174(b), “Separate Trials”, and T.R. C.P. 166-A, “Summary Judgment”. The matter was a part of the law discussed by Associate Justice Calvert in Hey v. Hughes, 158 Tex. 362, 311 S.W.2d 648, 650 (1958), in reaching the conclusion that the same situation does not persist in all cases, and that there may not be separate trials of liability and damage issues in personal injury litigation. Further: see 4 Tex.Jur.2d., p. 455, “Appeal and Error-Civil”, § 872, “Reversal as to some issues”, and § 874 (p. 459) “Severability of judgment or issues”. In so far as the judgment decreed the contractual liability of Justice Life Insurance Company it is affirmed (albeit its persistence is as an interlocutory judgment) ; and the judgment in other aspects is reversed and remanded to the trial court for trial anew upon the matter of amount of damages, penalties and attorney’s fees. All costs are taxed against the plaintiff Ray Walker.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

KING COMMODITY COMPANY OF TEXAS, INC., Appellant, v. The STATE of Texas, Appellee. No. 18291. Court of Civil Appeals of Texas, Dallas. March 7, 1974. Rehearing Denied April 4, 1974. Mark W. Perrin, Houston, for appellant. John L. Hill, Atty. Gen. for the State of Texas, Bill Flanary, Asst. Atty. Gen., Austin, for appellee. GUITTARD, Justice. On this interlocutory appeal our questions are whether “commodity options” are “securities” subject to registration under the Texas Securities Act and whether a district court of a county other than that in which a corporation subject to the Texas Business Corporations Act has its registered office may appoint a receiver for the assets and business of the corporation. The appeal comes from one of the district courts of Dallas County, which granted a temporary injunction restraining King Commodity Company of Texas, Inc., and its officers and employees from selling “commodity options” without first obtaining the registration and licenses required by the Texas Securities Act, Tex.Rev.Civ. Stat.Ann. arts. 581-7 and 581-12 (Vernon 1964). The court also found that defendant corporation, which had its registered office in Harris County, was in imminent danger of insolvency and appointed a temporary receiver to take over all its records and assets. We agree with the trial court that the options were “securities” subject to registration, but we hold that the district court of Dallas County had no authority to appoint a receiver for the corporation. I. SECURITIES SUBJECT TO REGISTRATION “Securities” are defined in the Texas Securities Act, Tex.Rev.Civ.Stat.Ann. art. 581-4(A), as follows: The term “security” or “securities” shall include any share, stock note, bond, debenture, mortgage certificate or other evidence of indebtedness . or any certificate or instrument representing or secured by an interest in any or all of the capital, property, assets, profits or earnings of any company, investment contract, or any other instrument commonly known as a security, whether similar to those herein referred to or not. [Emphasis added.] The State contends that the “commodity options” sold by defendants are both “evidence^] of indebtedness” and “investment contractas]” within this definition. We agree. (1) “Investment contract” The term “investment contract” appears to have been taken from § 2(1) of the Federal Securities Act of 1933, IS U.S.C. § 77b(l) (1971). This term was construed by the Supreme Court of the United States in Securities and Exchange Commission v. W. J. Howey Co., 328 U.S. 293, 301, 66 S. Ct. 1100, 1104, 90 L.Ed. 1244, 163 A.L.R. 1043 (1946) as follows: The test is whether the scheme involves an investment of money in a common enterprise with profits to come solely from the efforts of others. This test was accepted for the same term in the Texas Securities Act in Koscot Interplanetary, Inc. v. King, 452 S.W.2d 531 (Tex.Civ.App. — Austin 1970, writ ref’d n. r.e.). Defendants concede that the options in question involved investment of money with an expectation of profit, but deny that they involved a “common enterprise” or that the profits would result “solely from the efforts of others.” They rely on authorities holding that commodities futures contracts are not “investment contracts,” and argue that if commodity futures contracts are not “securities,” then options to purchase them cannot be “securities.” This argument ignores an important distinction. A speculator in commodity futures risks his own money, and his only source of profit is the commodity market itself. The evidence here shows that on purchase of a “commodity option,” the customer’s money is not placed at risk beyond a relatively small “premium” of between two and one-half and eight percent of the value of the commodity. The source of profit is not solely the commodity market, but also the trading operations of the option dealer, who must use funds other than those of the individual customer. This conclusion is supported by the advertising literature which King distributed to its customers. We take this literature as defining the nature of the transaction because the alleged “securities” offered may be judged as being what they were represented to be. Securities and Exchange Commission v. C. M. Joiner Leasing Corp., 320 U.S. 344, 353, 64 S.Ct. 120, 88 L.Ed. 88 (1943). Among this literature is a brochure characterizing “commodity options” as “an investment technique that combines aspects of conservatism, speculation and leverage,” and explaining : The amount of capital at risk in purchasing an option is limited to the cost of premium paid for the option. The investor can never lose more than the amount of his premium. . . . The potential profit on a commodity option is unlimited — a return of several 100% in as short a period as 30 days is not impossible. ... By purchasing an option, a given position can be retained in any market without margin calls of any kind, even if the price of the commodity should fluctuate widely. The brochure goes on to describe a “double option program” as “an investment program designed to make use of the tremendous leverage and volatility of the Commodity Futures Market, while limiting the risk and with no margin calls or forced liquidation.” A “call option” is defined in the brochure as “the right to buy a future contract at a guaranteed price on or before a specified date.” A “put option” is defined as “the right to sell a future contract at a guaranteed price on or before a specified date.” The brochure further explains: A DOUBLE OPTION is a PUT and CALL purchased back to back for the same contract, or in other words a straddle. Because you will have both a PUT and CALL it does not matter whether the market moves up or down, just so it moves away from the striking price. (The price at which you buy in.) To avoid a loss, the market must move up or down enough to cover the cost of the premium. Further movement in the same direction produces a profit. When the price of the world commodity has moved enough to return a PREDETERMINED NET PROFIT, you exercise the DOUBLE OPTION (selling both the PUT and the CALL back to King Commodity Company) take your profit and reinvest in a New DOUBLE OPTION with a new striking price. Also in evidence is a printed document entitled “Investor’s Guaranty Corporation Commodity Option Operating Rules and Procedures.” Defendants admit that “Investor’s Guaranty Corporation” was only an assumed name for King Commodity Company of Texas, Inc. This document describes the market operations as follows: Investors Guaranty Corporation, through its membership with the West Coast Commodity Exchange and other affiliated exchanges, takes a position on the open futures market for all options sold; by they puts, calls, or double options. These options are thus hedged with the movement of the futures market. For example, if the market is on the downtrend, a short position is established; if the market is in an uptrend, a long position is established. This position may be changed from time to time as the movement of the market dictates, but all options remain fully hedged. In the advertising material King is represented to be a “member West Coast Commodity Exchange” and “world commodity specialists.” Its president, C. Lee Harshfield, who is one of the defendants here, is designated “chief administrator,” and is represented to have “over 20 years experience in all phases of administration and management:” The conclusion that King used other money in its trading operations is supported also by testimony at the hearing. Don Thompson, who was formerly employed by King as a salesman, testified that he told his clients that their positions were being protected on the futures market by hedging on the West Coast Commodity Exchange. In other words, he said, if a person bought a “call option,” the company would take a long position in the futures market and would hold that position until the option was exercised. Thompson further explained that in the case of a “call option,” the hedger would buy a contract on the futures market and in the case of a “put” he would sell the contract. In case of a “double option,” the hedger would wait until the market “penetrated” one way or the other and then would take a position. If the market continued to go up, the option dealer would be able to take enough money out of the futures market plus a portion of the premium to pay off the customer. If the market reversed the “striking price” several times, the dealer would have to lift the hedge several times, and eventually the option money would be eaten up, so that the dealer would be predicating his profit on the fact that the market would not move through the “striking price” more than a few times. It is a reasonable inference from this evidence that the money necessary to hedge each option could only come from pooling of the premiums paid by other customers and that if King’s use of this money in its trading operations was not profitable, no funds would be available to pay the customers their profits. Thus the trial court would have been justified in finding, and we presume that it did find, that the evidence establishes a “common enterprise” within the Howey test. Defendants also deny that the profits would come “solely from the efforts of others” within the Homey test. As we have already explained, the profits were apparently generated by King’s management of funds other than the premium advanced by the individual customer. Whether absolute nonparticipation of the investor is an essential element of an “investment contract” is doubtful in light of such decisions as Securities and Exchange Commission v. Glenn W. Turner Enterprises, Inc., 474 F.2d 476, 482 (9th Cir. 1973) and State Commissioner of Securities v. Hawaii Market Center, Inc., 52 Haw. 642, 485 P.2d 105, 108 (1971). In the present case the customer’s participation was minimal. Although he was privileged to follow the market fluctuations of the commodity in question and make his own decision about exercising his option, he was not required to do so. The advertising literature expressly represented that he did not have to “watch the market quotations.” It said, “You are free to spend all your time at your business or hobby and léave the details to us.” It also represented that the options would be exercised “when the price of the world commodity has moved enough to return a predetermined net profit.” We take this to mean that the option would be exercised without further instructions from the customer whenever the market price reached the point at which the amount of profit previously determined could be realized. Mark Kimmins, one of the former customers who appeared as a witness for the State, testified that he dealt with King through a broker who sent him the advertising material above described. His initial investment was $1400 for a “double option” on 10,000 ounces of silver. Without further directions from him his options were automatically exercised for a profit, and in the language of the trade, were “rolled” into new options every week or ten days. He merely kept in touch with the broker to see how his account was doing. He knew, however, that the final decision was his and that he could take his profit out at any time. He tried to plot the ups and downs of his commodity from quotations in the Wall Street Journal, but he could not pinpoint his profit because the price would fluctuate so greatly that he was always far behind. Another customer, Doris Hicks Moore, who lived in Pecos, Texas, testified that she dealt with King through Don Thompson of their Dallas office entirely by telephone. On one occasion she called in and requested that her options be exercised, but that was not done. Thompson suggested to her later that she would make more money by leaving them a little longer, but she insisted that they be sold to recover her original investment of $13,200, leaving more than $10,000 profit on the books, which she was going to “roll over,” as Thompson said, into new options and “make lots of money.” Thompson corroborated this testimony and said that his original arrangement with Mrs. Moore was to exercise her options whenever the potential profit reached fifty percent, but that they later decided to take a smaller profit. In short, the evidence shows that after the original transaction no effort or participation on the part of the customer was necessary in order to realize a profit, although the customer could elect to make his own decision as to the time of exercising his option. The Homey opinion itself holds that the choice of some investors not to accept the offer of complete management of the investment does not prevent the arrangement from having the ingredients of an “investment contract.” 328 U.S. 293, 300, 66 S.Ct. 1100. We hold that the option buyer’s minimar privilege of participation in the management of his investment does not exempt the transaction from registration as a “security” under the Act. (2) Evidence of indebtedness “Evidence of indebtedness” is another term taken from § 2(1) of the Federal Securities Act of 1933, 15 U.S.C. § 77b(1) (1971). As used in that Act, it has been interpreted to include “all contractual obligations to pay in the future for consideration presently received.” United States v. Austin, 462 F.2d 724, 736 (10th Cir. 1972). The “option certificates” in this record, considered in the light of the representations in King’s advertising literature, appear to be contractual obligations of King to pay money in the future. The brochure referred to above contains the following paragraph: GUARANTEE All options sold by King Commodity of Texas, Inc. are guaranteed and governed under the rules and regulations of the State of Texas. Investor’s Guaranty Corporation issues the OPTION Certificates, thus eliminating any doubt as to its guarantor. Only PUT and CALL OPTIONS with these Certificates are guaranteed by Investor’s Guaranty Corporation. All earned equities remain intact in a segregated bank trust account and are adjusted on a daily basis during the entire life of the option for the sole use and benefit of the customer. The brochure describes the exercise of a “double option” as “selling both the put and call back to King Commodity Company.” The “operating rules and procedures” represent that options “may be liquidated or exercised at the buyer’s option.” They further explain: As an additional customer safeguard, any fluctuation of the market for an option buyer which results in an equity from the striking price, that equity will be deposited on a daily basis in a segregated customer account. For example, if a customer bought a silver option and the striking price was $2.3000 and the price moved to $3,000 resulting in an option holders equity of $700.00, that $700.-00 is deposited in the segregated account and any additional equity is deposited on a daily basis. Thus it appears that although the customer may have had a theoretical right to take over an actual futures contract by paying the full price specified in his certificate, he was told that he had the right to demand cash for his option. According to the literature, King had no right to insist that the customer assume the obligation of a futures contract either to deliver or to accept delivery of the commodity specified. The testimony of the customers Kimmins and Moore and of the salesman Thompson shows that King’s method of operation was to pay in cash the difference between the “striking price” and the “market price” or credit that amount to the customer’s account and invest it in a new option. Defendants have never denied King’s liability to the customers, and their counsel even assured Mrs. Moore in open court that efforts would be made to pay her claim. In other words, King represented to the customer that whenever he chose to exercise his option, King or “Investor’s Guaranty Corporation” would have his profit in the bank and would pay it to him in cash on demand. Regardless of the fact that the market price determined the amount to be paid and even whether any amount was due, the options were sold as “guaranteed” obligations of King to pay money on certain contingencies. Therefore, they were “evidences of indebtedness” subject to registration as “securities” within the Act. II. JURISDICTION OF RECEIVERSHIP King Commodity Corporation of Texas, Inc. is a corporation subject to the Texas Business Corporations Act, with its registered office in Harris County. The State seeks to sustain appointment of the receiver by the district court of Dallas County under Tex.Rev.Civ.Stat.Ann. art. 2293 (Vernon 1971), which provides that receivers may be appointed “by any court of competent jurisdiction” in various situations, including “cases where a corporation is insolvent or is in imminent danger of insolvency.” King contends that the court had no jurisdiction to make the appointment because of the restrictive provisions of Tex.Bus.Corp.Act Ann. arts. 7.05 and 7.07 (Vernon 1956), V.A.T.S. We agree with King’s contention in this respect. Article 7.05, so far as here material, provides : A. A receiver may be appointed for the assets and business of a corporation by the district court for the county in which the registered office of the corporation is located .... Article 7.07 provides: A. No receiver shall be appointed for any corporation to which this Act applies or for any of its assets or for its business except as provided for and on the conditions set forth in this Act. E. A court authorized to appoint a receiver for a corporation to which this Act applies, and no other court in this State, shall be authorized to appoint a receiver for the corporation or its assets and business; when such a court does appoint a receiver, as authorized by this Act, for the corporation or its assets and business, that court shall have exclusive jurisdiction of the corporation and all its properties, wherever situated. [Emphasis added.] The State contends that these provisions are not exclusive and do not preclude an action under other statutory provisions, such as article 2293. We cannot accept this construction. The language of article 7.07 above quoted could hardly be more explicit or more clearly mandatory. The scope left for the more general statutes governing receivers, including article 2293, is stated in the comment of the bar committee following Tex.Bus.Corp.Act Ann. art. 7.04 (Vernon 1956) as follows: These general provisions will continue to be applicable to receiverships other than those for corporations subject to the Act or their assets, and will also continue to be applicable to receiverships for corporations or their assets with respect to such matters as qualifications, powers, duties, and administrative procedures of receivers which are not inconsistent with the specific provisions of the Act. We conclude that with respect to corporations subject to the Act, articles 7.05 and 7.07 are not merely cumulative, but limit jurisdiction to appoint a receiver for the assets and business of the corporation to the district courts of the county in which the corporation has its registered office. Neither can we accept the State’s contention that even though venue was improper, the district court of Dallas County had jurisdiction to preserve the subject matter and maintain the status quo by appointment of a receiver pending determination of proper venue at a hearing for that purpose. The clear intent of article 7.07 is to restrict appointments of receivers for all assets and business of the corporation to the district courts of the county where the corporation has its registered office, and not merely to permit the receivership proceeding to be transferred to that county on plea of privilege. Cf. Alpha Petroleum Co. v. Terrell, 122 Tex. 257, 59 S.W.2d 364 (1933); Johnson v. Sharpstown State Bank, 503 S.W.2d 667 (Tex.Civ.App.— Eastland 1973, rev’d on other grounds, 17 Tex.Sup.Ct.J. 252 (March 30, 1974)); Goff v. State Board of Insurance, 319 S. W.2d 383 (Tex.Civ.App. — Dallas 1958, no writ). The order of the trial court granting the temporary injunction is affirmed; the order appointing the receiver is reversed and the receivership is dissolved. On appellants’ motion for rehearing Three of the individual appellants have moved for rehearing on the ground that there is no evidence that they ever sold or offered to sell any “commodity options.” We are unable to find any language in their brief raising this contention. They assert that this ground is germane to the first point of error in appellants’ brief, but that point states only that there was “no evidence before the court that the commodity option contracts sold and offered for sale by Appellants were 'unregistered securities’ within the meaning of the Texas Securities Act.” The argument under the point contains no suggestion that any of the appellants were not shown to have sold “commodity options” or to have offered them for sale. Consequently, their motion for rehearing is overruled. On appellee’s motion for rehearing The State’s motion for rehearing complains of only that part of our opinion concerning the receivership. The Attorney General argues that we erred in applying Tex.Bus.Corp.Act Ann. arts. 7.05 and 7.07 and in holding that the district court of Dallas County had no jurisdiction under these statutes to appoint a receiver. The Attorney General interprets these statutes as limited to two varieties of receiverships: (1) those involved in the involuntary dissolution of corporations and (2) those limited to specific assets of corporations. He argues that our opinion limits jurisdiction to grant receivership to those situations and excludes receivership in other situations in which receivership has long been recognized as a proper remedy. This argument misconstrues our opinion and the statutes as well. Articles 7.05 and 7.07 are not limited to cases in which receivership is sought for specific assets of a corporation or for dissolution of a corporation and liquidation of its assets. Those cases are expressly covered by articles 7.04 and 7.06. Article 7.05 applies “whenever circumstances exist deemed by the court to require the appointment of a receiver to conserve the assets and business of the corporation and to avoid damage to parties at interest.” No reason is suggested why this language does not cover the receivership here. Niether can we agree with the State’s argument that an ancillary receiver for the assets and business of a corporation may properly be appointed by any district court which has venue of a suit against the corporation on some other ground. The Attorney General relies on cases which did not involve the provisions of our present Business Corporations Act. Article 7.05 expressly provides, “A receiver may be appointed for the assets and business of a corporation by the district court for the county in which the registered office of the corporation is located,” and article 7.07 provides “no other court in this State, shall be authorized to appoint a receiver for the corporation or its assets and business.” This unequivocal and mandatory language precludes the holding that a receivership of the entire business and assets of a corporation may be employed by a district court in any of the state’s two hundred and fifty-four counties as a remedy ancillary to some other cause of action of which the court may have venue. For an interpretation of these statutes, see Leeds, Merger, Consolidation, Reorganization, and Receivership under the Texas Business Corporations Act, 3A Tex.Rev. Civ.Stat.Ann. 490, 497 (1956). In one respect our original opinion may have been in error. We stated that articles 7.05 and 7.07 “limit jurisdiction to appoint a receiver for the assets and business of the corporation to the district courts of the county in which the corporation has its registered office.” Upon further study we conclude that “jurisdiction” is not the proper word. “Authority” is more accurate, since article 7.07(E) uses the word “authorized.” Mr. Leeds, in the article above cited, uses the term “exclusive venue.” The statute involves more than venue in the ordinary sense of the county in which the suit is to be tried on the merits. Regardless of terminology, the precise question is whether the 'unauthorized appointment of a receiver by a court in a county other than that in which the corporation has its registered office is a matter to be corrected only by the plea-of-privilege practice under Texas Rules oh Civil Procedure, rules 86 and 87, or whether it may be corrected on appeal under Tex. Rev.Civ.Stat.Ann. art. 2250 (Vernon 1971), which allows an interlocutory appeal from an order appointing a receiver. We conclude that transfer on plea of privilege is not the exclusive remedy. The plea-of-privilege practice is designed to assure a defendant his right to have the case tried on the merits in the county of proper venue, but is not effective to prevent improper appointment of a receiver at the preliminary stage. ' If a court of another county erroneously appoints a receiver, the error is not rectified by simply transferring the receivership to the proper county. The second court may not be acquainted with the receiver and may prefer to appoint a local resident that the court knows to be qualified. Such a case would require both a receivership hearing and a venue hearing in the first court and would also require a hearing in the second court to determine whether the original receiver should be discharged or replaced. After transfer, the defendant would in many cases move for dissolution of the receivership, and the second court would then be required to hear the same evidence and consider the same grounds and defenses presented in the original receivership hearing. The remedy of an interlocutory appeal under article 2250 from the original order appointing the receiver is more expeditious and its existence would tend to discourage applications for receiv-erships in counties other than that in which the corporation has its registered office. Receivership for all assets and business of a corporation is a drastic remedy and is subject to abuse. An unauthorized appointment may affect the affairs of the corporation seriously and adversely before the proceedings can be transferred on plea of privilege to the proper county and a further hearing held there. The clear legislative policy of limiting authority for such appointments to courts of the county of the registered office would be defeated to a substantial extent if the only remedy for an unauthorized appointment would be transfer on plea of privilege. We need not pass on the effect of the appointment of a receiver by a court having no statutory authority to do so if the corporation consents to such appointment or appears and makes no objection, since that question is not before us. By withdrawing the term “jurisdiction” and substituting “authority,” we avoid any decision of that question. On the record before us we hold that only a district court of the county in which the corporation has its registered office has authority to appoint a receiver for the assets and business of a corporation subject to the Texas Business Corporations Act and that such an appointment by a court of any other county may be set aside on an interlocutory appeal under article 2250. Appellee’s motion for rehearing is also overruled. . Mílnarik v. M-S Commodities, Inc., 457 F.2d 274 (7th Cir.. 1972) ; McCurnin v. Kohlmeyer & Co., 340 F.Supp. 1338, 1341 (E.D.La.1972) ; Sinva, Inc. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 253 F.Supp. 359, 366 (S.D.N.Y.1966). . The statement in Rex. Refining Co., Inc. v. Morris, 72 S.W.2d 687, 690 (Tex.Civ.App.— Dallas 1934, no writ) which appears to support this argument, was not necessary to the decision of that case, since the appointment was held to be improper on other grounds, and was expressly contrary to the earlier decision of the Supreme Court in Shell Petroleum Corp. v. Grays, 122 Tex. 491, 62 S.W.2d 113, 120 (1933), in which appointment of a receiver by a court which did not have proper venue was reversed.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

COLONIAL PENN FRANKLIN INSURANCE COMPANY, Appellant, v. E. A. MAYFIELD, Appellee. No. 8400. Court of Civil Appeals of Texas, Amarillo. March 25, 1974. Rehearing Denied April 29, 1974. Stokes, Carnahan & Fields, Richard E. Stokes, Jr., Amarillo, for appellant. Gibbins & Spivey, Broadus A. Spivey, Austin, for appellee. ROBINSON, Justice. This is a workmen’s compensation case. The jury’s verdict awarding plaintiff compensation for total and permanent incapacity was appealed by the insurance carrier. Affirmed. By appropriate points of error, appellant challenges the jury findings that on or about July 7, 1971, plaintiff received an injury in the course of his employment which was a producing cause of total and permanent incapacity and that such incapacity was not caused solely by Peyronie’s disease arising independently and without aggravation by the injury. E. A. Mayfield testified to the following sequence of events. He went to work for Northern Propane and Gas Company in 1965. On July 7, 1971, he was delivering drip oil in the course of his employment as carburetor specialist, serviceman, and salesman for Northern Propane. While removing an eighty pound pump from an empty barrel, he slipped on the oil covered surface of the pickup bed, landed on his lower abdomen, and went over and across the barrel’s center, smashing his penis. The ensuing pain was so severe that he sat down and “bawled like a baby.” Thirty minutes elapsed before he was able to continue the work. No one else was present at the time of the injury. Mayfield told his employer of the injury and showed his injured penis, which had swollen to four times its normal size, to Mrs. Mayfield. By morning it was black and blue. The swelling and discoloration subsided by the third night after the accident, at which time plaintiff and his wife unsuccessfully attempted marital relations. His erect penis was extremely painful and curled around. He has been unable to engage in sexual relations since. He had had no similar problem or trouble with his penis before the injury. He consulted his family physician on the third day after the injury, who referred him to a specialist, Dr. Nas-lund, whom he saw on July 15, 1971. Dr. Naslund’s treatment never gave him any substantial relief and his condition persists to this day. He took off work at Dr. Nas-lund’s direction from March 23, 1972 to May 10, 1972. He returned to work on June 2, 1972, and w: s told that he was terminated. Defendant testified that since the injury he had become extremely nervous, “I can’t seem to concentrate. I get tied up in stuff, and I get tied up in knots, and I have got to go take me a nerve pill to get settled down, and if things goes all right, why I am all right, but if I go to having a little problem, why then things just go to flying apart, and I just get beside myself and I just have to get up and walk off and leave it and come back later to finish my chores.” He testified that the nervousness affected his ability to carry out his duties for Northern Propane because they involved L. P. carburetors and L. P. gas and “you can’t afford to make any mistakes, because if you do, you might not be here to make another one. .” He also sold appliances and went out and got new customers and he “can’t meet the public anymore.” After his discharge he tried driving a tractor and odd jobs. He was unable to drive the tractor because the vibration caused a “hurting” to come back in his penis and through his lower back. At the time of trial he was employed at Amstar Sugar as a guard on their gates. He stated, “Well, I get there and sit there and twiddle my thumbs and chew the erasers off pencils, and just all but want to pull my hair just sitting there. I am not used to sitting. I need to be doing something.” He “flies off the handle” with the people he deals with on his present job. He never had this problem before the injury. His condition is not improving. Appellee offered testimony from customers of Northern Propane that since the date of the injury there had been a change in Mayfield’s personality; that he had become a “loner”; that he was now nervous and irritable and his ability to perform a job in which he had to meet the public was adversely affected. His daughter testified that the least little thing irritates him and he will fly off the handle before he even stops to think; that previously any job that he did had to be just so, but that now he does not have the patience that he used to; that he will just “half” do it or just get up and leave it. Mrs. Mayfield testified he attempted to help in a cafe that she had taken over; that he flies off the handle, “which he never did do before,” and that his temper was too short to work in a public place like that. The only medical testimony was by Dr. Naslund’s deposition, which was first offered by appellant. Thereafter, appellee offered portions of the deposition. The testimony of Dr. Naslund was in substance as follows: He first saw Mayfield on July 15, 1971, and diagnosed his condition as Peyronie’s Disease. Mayfield’s objective symptom was a small palpable plaque in-duration on the dorsum of the penis. Such a plaque is slow developing and can be totally self limiting. Deformity and pain can result in the penis, depending on the location of the plaque in question. Mayfield told Dr. Naslund that he had “pain on erection and severe deformity.” The doctor testified that it is not uncommon for men to become nervously agitated and upset with any condition involving the penis and quite common with Peyronie’s to have a true nervous aberration. Mayfield told him that his nerves were bothering him and related feelings that he was “not a man anymore.” Naslund treated Mayfield for the nervous aberration that he was having. In Naslund’s opinion, the traumatic injury on July 7, certainly had a relationship to Mayfield’s complaints on July 15 and thereafter, in that it certainly focused the man’s attention and observation to the penis. Mayfield told the doctor in March of 1972 that when he unloaded a load of oil the penis started swelling and subsided by the next morning. This symptom has no relation to Peyronie’s as Nas-lund knows it. Dr. Naslund’s testimony with regard to whether an injury on July 7 caused a previously asymptomatic Peyronie’s to cause pain and deformity in the penis and the concomitant nervous aberration follows verbatim: “Q. And if this Peyronie’s Disease, condition, was there, but had never been bothering him, such as he described to you later, and a traumatic blow had occurred to the penis on July 7th, would you be able to say in reasonable medical probability that that traumatic blow, along with what had already existed, caused or brought about the condition? “A. Precipitated . “Q. Precipitated, if you will. “A. Precipitated a response . . . I think it could be ... I can’t say proved. “Q. I’m just asking for reasonable medical probability. “A. But it could have precipitated a response on the patient’s part, yes.” In Parker v. Employers Mutual Liability Ins. Co. of Wis., 440 S.W.2d 43 (Tex.1969), the Supreme Court reviewed three methods of establishing causal relationship between injury and incapacity in workmen’s compensation cases. Summarized, these methods are (1) general experience or common sense; (2) sequence of events plus scientific generalizations testified to by a medical expert; and (3) testimony of probable causation articulated by a medical expert. Causal connection always rests in reasonable probabilities. In each case the ultimate test is the same, but the nature of the evidence required to submit the issue to the jury varies with the current state of common and medical knowledge concerning the disabling condition or disease, and with the probative effect of the sequence of events between injury and disability. In certain cases, particularly those involving cancer where the causal base is the subject of dispute in the medical profession, causation is a question of science determinable only from the testimony of expert medical professionals. Insurance Company of North America v. Myers, 411 S.W.2d 710 (Tex.1966); American Casualty & Life Co. v. Gueringer, 205 S.W.2d 423 (Tex.Civ.App. — San Antonio 1947, no writ). In such cases the etiology is sufficiently complex that it can be understood only by a medical scientist. To permit a jury to decide the question of probable cause in the absence of medical testimony that the condition was in reasonable probability caused by the injury would in such a case permit the jury to decide by speculation and conj ecture. Nevertheless, where, despite uncertainty, medical science has been able to develop criteria to determine the probability of causal relationship between injury and disability and where the injury is not so complicated as to preclude the jury’s evaluation of the sequence of events between injury and disability, the jury is permitted to consider testimony of medical possibilities or other scientific generalizations together with the particular sequence of events to determine for itself reasonable medical probability from the evidence as a whole. Trinity Universal Ins. Co. v. Walker, 203 S.W.2d 308 (Tex.Civ.App. — Austin 1947, writ ref’d n.r.e.). This has been held to be proper even in cancer cases where an uncomplicated traumatic injury has been so related to the onset of cancer at the point of injury as to allow the jury to decide whether the injury was in reasonable probability the cause of the cancer. Traders & General Ins. Co. v. Turner, 149 S.W.2d 593 (Tex.Civ.App. — Fort Worth 1941, writ dism’d jdgmt. cor.). See Parker v. Employers Mutual Liability Ins. Co. of Wis., supra. Likewise, lay testimony alone may be sufficient to prove producing cause where the general experience of men is such that they can anticipate that the disability in question would follow the injury proved. But even in those cases in which medical testimony is unnecessary, the lay testimony must prove that the injury in reasonable probability caused the claimed result. Griffin v. Texas Employers’ Insurance Association, 4S0 S.W.2d 59, 61 (Tex. 1969). The Supreme Court stated in Insurance Company of North America v. Myers, supra, that reasonable probability is determined by the substance of the testimony of the expert witness and does not turn on semantics or the use by the witness of any particular term or phrase. Therefore, we have considered the testimony of Dr. Nas-lund in its entirety. We do not find that his testimony amounts to direct expert testimony of probable causation. The question, then, is whether the evidence taken as a whole is sufficient to support a jury finding that the injury in question was a producing cause of incapacity to labor. In other words, is the medical testimony combined with the sequence of events sufficient to create a reasonable medical probability? Dr. Naslund’s testimony was that Peyronie’s can be totally self limiting, that the injury on July 7 could have precipitated the onset of symptoms in a previously existing but asymptomatic Peyronie’s disease, and that it is quite common in Pey-ronie's to have a true nervous aberration. Appellee has offered evidence that he had no problem before the injury, of the painful nature of the original traumatic injury, of the immediate onset of symptoms and development of nervous problems, and of the symptoms continuing to date of the trial. The evidence shows a strong, logically traceable connection between cause and result which, when considered with the medical testimony, is sufficient to support a jury finding that the traumatic injury to the penis in the course of Mayfield’s employment, aggravated by precipitating symptoms, a previously asymptomatic Pey-ronie’s condition and that the onset of these symptoms resulted in a nervous aberration or condition which disabled Mr. Mayfield as a workman. A nervous condition which debilitates an individual is compensable under Texas workmen’s compensation law. Clayton v. Employers Mut. Liability Ins. Co. of Wis., 480 S.W.2d 487, 490 (Tex.Civ.App.— Waco 1972, no writ). Disabling neurosis produced by an injury is a disease. Hood v. Texas Indemnity Ins. Co., 146 Tex. 522, 209 S.W.2d 345 (1948). Such a disease is a part of the injury itself not a result of the injury. Traders & General Ins. Co. v. Weatherford, 124 S.W.2d 423, 430 (Tex.Civ.App.—Eastland 1939, writ dism’d jdgmt. cor.). It is well settled that a jury can find total and permanent disability from the testimony of the parties and lay witnesses alone. Texas Employers’ Insurance Association v. Fletcher, 356 S.W.2d 359 (Tex.Civ.App.—Texarkana 1962, writ ref’d n.r.e.). Although lay witnesses ordinarily will be prohibited from expressing an opinion that the injuries are total and permanent, “ . . . the factual testimony of a claimant alone, or of other lay witnesses, will support a jury finding of total and permanent disability. The jury may reasonably infer total and permanent disability from circumstantial evidence. And this is true though the lay evidence may be contradicted by the testimony of medical experts.” Travelers Insurance Company v. Wade, 373 S.W.2d 881 (Tex.Civ.App.—Dallas 1963, writ ref’d n.r.e.). Further, standing alone, the fact that appellee has found employment as a gateman does not in itself prevent him from recovering for total and permanent disability. The rule was stated in Royal Indemnity Company v. Kennedy, 426 S.W. 2d 615 (Tex.Civ.App.—Fort Worth 1968, writ ref’d n.r.e.) as follows: “A judgment will not be reversed merely because there is evidence showing the disabled employee is in fact working and earning money regardless of the amount of money being earned. Such proof constitutes a part of the factual evidence which may and should be taken into consideration by the jury in answering the issues upon incapacity or disability, but does not, as a matter of law, preclude the award of compensation even for total and permanent disability.” The testimony in the case before us is that because of his nervous condition, Mr. Mayfield, a former carburetor specialist, serviceman, and salesman, is no longer able to perform the tasks of which his work was comprised or to meet and deal with the public. He suffers from a nervous aberration or condition which makes him unable either to concentrate or meet people. Thus, there was evidence from which the jury could find that Mr. Mayfield was to- . tally and permanently disabled from performing the usual tasks of a workman as well as the tasks of his former employment. Even in his undemanding work as a gateman, his disability seriously interferes with his work. Although regularly employed, a workmen’s compensation claimant may be totally disabled if the work causes him serious discomfort or unreasonable risk. Standard Fire Insurance Company v. Simon, 474 S.W.2d 530 (Tex.Civ.App.—Dallas 1971, no writ). After a careful consideration of the evidence, both supporting and contrary to the verdict, we are of the opinion that the evidence is sufficient to support the jury’s answers to each of the special issues and the verdict is not against the great weight and preponderance of the evidence so as to be unjust. By his final point of error appellant asserts that appellee committed an intentional fraud upon the court and intentionally perjured himself by testifying that he had never before July 7, 1971, had any problems with the erection of his penis or a crook in his penis or any difficulty in having or attempting to have sexual intercourse and that all of his problems occurred after July 7, 1971. This point arises by virtue of the fact that on the hearing on defendant’s First Amended Motion for New Trial, Mr. Mayfield testified that he first arrived at the date of injury as being July 7, 1971, by guess. By the time of the hearing, he had determined that July 7, 1971 was a Wednesday and concluded that the accident happened on the previous Friday. The trial court properly denied the motion for new trial. This evidence of a few days difference in dates is immaterial. Evidence of immaterial or collateral matters does not provide a ground for a new trial. Davis v. Texas Employers’ Ins. Ass’n., 257 S.W.2d 755 (Tex.Civ.App.—Eastland 1953, no writ). The most that the record reveals is that Mr. Mayfield’s memory was faulty, and imperfect memory is not a basis for a finding of fraud. The judgment of the trial court is affirmed.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Lillie Mae GRAY, Appellant, v. The STATE of Texas, Appellee. No. 8203. Court of Civil Appeals of Texas, Texarkana. March 12, 1974. Rehearing Denied April 9, 1974. J. R. Cornelius, Mahlon L. Walters, Jefferson, for appellant. Tony Hileman, Jefferson, for appellee. CHADICK, Chief Justice. This is an appeal from a judgment in a dependent child proceeding authorized by Vernon’s Tex.Rev.Civ.Stat.Anno. art. 2330 et seq. For reasons discussed, the judgment of the trial court is affirmed. The appeal bond contains the following recitals: “WHEREAS, on June 27, 1973, the Court, at the close of the evidence herein, entered his Judgment * * *, and “WHEREAS, the said Lillie Mae Gray, then and there in open court, excepted and gave notice of appeal to the Court of Civil Appeals, for the Sixth Supreme Judicial District of Texas, sitting at Texarkana, Texas, and “WHEREAS, on June 30 the said Lillie Mae Gray filed and presented her motion for a new trial, which was by said Court then and there refused.” The recitals are in agreement with the record and confirm that a premature oral notice of appeal was given, that is, that oral notice of appeal preceded the order overruling motion for new trial herein. No written notice of appeal filed with the trial court clerk is to be found in the appeal record. In Shepherd v. City of Austin, 467 S.W.2d 611 (Tex.Civ.App. Austin 1971, writ ref’d, n. r. e.) it was held that Texas Rules of Civil Procedure, rule 306c permitting notice of appeal to be filed prematurely is an exception to Tex.R.Civ.P. 353 and is applicable only to a written notice of appeal. Shepherd held specifically that Rule 306c does not validate an open court oral notice of appeal given prior to an order overruling motion for new trial. Since it appears, however, that the Shepherd opinion contains findings of fact that render such specific declaration unnecessary and thus account for the Supreme Court’s writ action, it is concluded that this court has jurisdiction of the appeal. Liberality in favor of the right to appeal leads this court, with trepidation in view of Shepherd, to construe Rule 306c as a validation of the premature notice of appeal herein. It is deemed that the notation on the trial court’s docket of notice of appeal is in a liberal sense a filing thereof for appeal purposes. In the performance of the duty placed upon him by Tex.Rev.Civ.Stat.Anno. art. 2333, the County Attorney of Marion County, Texas, on June 14th, 1973, instituted this proceeding by filing a sworn petition in the 115th Judicial District Court of that county, alleging the five children named therein were under the age of eighteen years and were dependent and neglected in that they were dependent upon the public for support, were destitute, homeless, abandoned, and had no proper parental care or guardianship. It was also alleged that Lillie Mae Gray was the mother of the children and a resident of Jefferson, Texas, but that the name and residence of the father was unknown. On the day suit was filed, the judge of the mentioned court set a hearing on the petition for 10:00 o’clock A.M. on June 22, 1973. Citations issued immediately on the same date, commanding Lillie Mae Gray to appear before the court at 10:00 o’clock A. M., on the 22nd day of June, 1973, and show cause why the named children should not be declared dependent. The return on the citation shows service thereof on Lillie Mae Gray at 3:30 o’clock P.M., on June 18, 1973. On the last mentioned date, June 18, 1973, the County Attorney filed a motion in the pending case to detain such children in the custody of the Texas Department of Welfare at the facilities of the Bowie County Juvenile Detention Center, pending trial of the dependency suit. The motion alleged the children should be so detained because they were “likely to suffer irreparable injury, lose and damage as a result of destitution, and lack of proper parental care or guardianship.” The motion was granted and order was made the same day authorizing detention as prayed for a period not to exceed ten days pending a hearing, or until other arrangements could be made for the children. Johnny B. Gray, by legal counsel, filed an intervention on June 22, 1973, alleging, among other things, that he was the father of one of the children named in the County Attorney’s dependency petition and prayed for custody of such child. Leave to intervene was granted. Lillie Mae Gray filed an answer on June 25, 1973, alleging none of the children were dependent or neglected and that she had been and was then caring for and supporting the children. On June 27th, 1973, Lillie Mae Gray filed an answer to the Johnny B. Gray intervention pleadings. The statement of facts and the judgment entered by the court both recite that the case came on for trial on June 27, 1973. The judgment decreed the children to be dependent, terminated parental rights, and placed the children’s care and custody in the Texas Department of Public Welfare. Johnny B. Gray has not filed a brief but appellant Lillie Mae Gray has briefed four points of error, to-wit: "POINT ONE: The Court erred in ordering the Sheriff of Marion County to seize and deliver the children herein named to the State Department of Public Welfare, without notice to their mother, who had the legal custody and control of them at such time; and whose whereabouts was well known. “POINT TWO: The court erred in trying said children as dependent and neglected children without their being present. “POINT THREE: The court erred in trying these children as dependent and neglected children without appointing a guardian ad litem to represent them. “POINT FOUR: The seizure of the children and removing them out of the county without a trial was a violation of the Due Process Clause of the Federal Constitution.” Neither the pleadings nor the sufficiency of the evidence to support the judgment rendered is an issue in the appeal. For convenience, points One and Four are grouped for discussion. In an earlier paragraph it is mentioned that the Judge of the court in which the proceeding was pending made an ex parte order placing the children in the temporary custody of the Texas Department of Welfare for a period not to exceed ten days, pending trial of the case. Such temporary order, limited to ten days’ duration by its terms, performed its functions and terminated when a final judgment was entered on the merits of the case. It is elementary that a temporary order of this nature is interlocutory in character and not appealable. See 3 Tex. Jur.2d Appeal and Error — -Civil, Sec. 63. The judgment underlying this appeal was rendered after notice to appellant Lillie Mae Gray and after intervention herein by Johnny B. Gray and completion of a trial in which they participated with the aid of the counsel of their choice. The temporary order having expired by its own terms, the present custody of the children in nowise depends upon it. A declaration of the invalidity of the order at this time would not, in reason, authorize an award of relief from the final judgment that is on appeal. On the possibility that the full import of the two points of error under discussion has not been fully apprehended, additional observations will be made. The Constitution of the State of Texas, Art. V, Sec. 8, Vernon’s Ann.St., grants district courts general control over minor children, subject to such regulations as may be prescribed by law. This grant empowers a district judge, when a pleading “shows upon its face that the welfare of a minor child requires that an order be made,” to make orders that are “right and proper for the welfare of the child.” Green v. Green, 146 S.W. 567 (Tex.Civ.App. Amarillo 1912, no writ); Knollhoff v. Norris, 152 Tex. 231, 256 S.W.2d 79 (1953). Temporary custody orders made without notice or hearing have had the approval of the State’s highest court. See Page v. Sher-rill, 415 S.W.2d 642 (Tex.Sup.1967) ; Dan-nelley v. Dannelley, 417 S.W.2d 55 (Tex. Sup.1967). The power to make such ex parte orders is implied and necessarily incidental to the power of general control over minors granted to district courts and is exercisable in situations of emergency demanding immediate action. Here an emergency was shown by the sworn petition to have existed when the order was made. With respect to Federally guaranteed due process, in this millieu due process may easily turn upon a pivot akin to probable cause. An arrest may be made without notice or hearing under certain circumstances when probable cause therefor exists, a magistrate may issue an arrest warrant without notice upon probable cause. In a situation such as this, with the sworn petition and motion before the court, an ex parte order as here made for the protection, nurture and care of children of tender years finds sanction in the general welfare clause and is as much justified under the police powers as an arrest might be. All writs available to test the validity of an arrest are available to test the validity of the custody order. Violation of State and Federal Constitutional due process is not shown. With little discussion, the case of In re Marsh, 344 S.W.2d 251 (Tex.Civ. App. Amarillo 1961, writ ref’d, n. r. e.), holds such an order does not offend due process guarantees. The briefs of the contending parties proceed on the assumption that the children were not present personally in court during the trial of the dependency proceeding. The language of Tex.Rev. Civ.Stat.Anno. art. 2333 contemplate the personal presence of the child, or children, under investigation at the trial of a dependency case. It is said in such statute: “Upon such hearing * * * the child shall be brought before said court.” No objection to the absence of the children was made at any time prior to or during the trial in chief. Complaint on this ground was presented to the trial judge for the first time by motion for new trial. It appears from a reading of the text that the purpose of Art. 2333 is to govern procedure and this provision under discussion, as well as all other provisions, are clearly procedural in nature. Procedural error in the absence of objection cannot be considered on appeal. 3 Tex.Jur.2d Appeal and Error — Civil, Sec. 108. There is no suggestion in appellant’s brief of injury to appellant as a consequence of the absence of the children from the trial. See also Kam-leh v. Brown, 389 S.W.2d 513 (Tex.Civ. App.Waco 1965, no writ). Appellant’s third point on its face presents a vexing problem. After investigation, however, the failure of the trial judge to appoint a guardian ad litem loses significance when note is taken that the dependency proceedings are wholly statutory. In special statutory proceeding rules of procedure prescribed therefor by statute supersede the general rules of procedure promulgated for civil actions. Tex.R.Civ. P., rule 2. The parents or guardian, as the case may be, are by the necessary implication of Tex.Rev.Civ.Stat.Ann. art. 2332 statutorily constituted the representative of a child in a dependency proceedings. This conclusion is made necessary by the last sentence of the article which directs the trial court to appoint a suitable person to represent the child “in case neither of the parents or guardian is found.” Here, the parent or parents were present and participated in the trial. No reversible error is found. The judgment of the trial court is affirmed. CORNELIUS, J., did not participate.

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Lazell WILLIAMS et ux., Appellants, v. KIDWELL GENERAL MOTORS CORP. et al., Appellees. No. 17379. Court of Civil Appeals of Texas, Port Worth. March 29, 1974. Rehearing Denied April 26, 1974. Schenk, Wesbrooks, Smith & Douglass, and S. Price Smith, Jr., and Cletus C. Schenk, Wichita Falls, for appellants. Fillmore, Parish, Martin, Kramer & Fillmore, and H. Dustin Fillmore, Wichita Falls, for appellees. OPINION LANGDON, Justice. This is a suit under the Wrongful Death Act of the State of Texas, brought by the parents of the decedent, Rickey Joe Williams, a minor, who was killed while riding as a passenger on a motorcycle driven by Harold Charles Volking, which was struck by a pickup truck driven by defendant, Harold Henry, hereinafter called Henry. The case was tried to a jury. It found in answer to Special Issues Nos. 7, 8 and 9, respectively, that Henry failed to keep a proper lookout while acting within the scope and course of his employment, that such action was negligent and was the proximate cause of the death of Rickey Joe Williams. The trial court disregarded the jury’s answers on the lookout issues, Nos. 7, 8 and 9, and granted the defendant a judgment notwithstanding the verdict. The jury further found that the appellants had suffered damages in the amount of $4,300.00 and the defendants stipulated to the burial expenses of $2,041.33, making a total recovery of $6,341.33. Appellants perfected this appeal from the action of the trial court based upon nine (9) points of error. We reverse and render. For the sake of brevity our discussion will be limited to appellants’ first two points because our holding with reference to them will determine the outcome of the appeal. We have, however, considered each of appellants’ points three through nine and sustain each of them. By their first two points the appellants contend that the trial court erred in granting the defendants (appellees) a judgment non obstante veredicto because the affirmative findings of the jury to Special Issues Nos. 7, 8 and 9 are supported by evidence of probative value and therefore judgment should have been granted them based upon the jury’s verdict. This appeal is narrowed to the sole question of whether or not there was any evidence to support the jury’s findings. Rogers v. Stimson Contracting Company, 373 S.W.2d 548, 533 (Dallas, Tex.Civ.App. 1963, no writ hist.). In consideration of this question we have reviewed the entire record in the case. In our opinion the following summary of evidence in this cause will reflect, not only the facts presented to the jury, but also the inferences and deductions to be drawn therefrom by the jury. Rickey Joe Williams was riding on a motorcycle as a passenger behind Harold Charles Volking, traveling in a northerly direction on U.S. 287, an expressway. The motorcycle with its two passengers left the expressway by way of the exit ramp, intending to proceed to the Wayfarer Motel. Henry, driving a pickup truck, was also traveling in a northerly direction in the left-hand curb lane on the service road that parallels the expressway. The accident, the basis of this lawsuit, occurred when the motorcycle failed to yield the right-of-way and pulled onto the service road from the exit ramp into the path of the approaching pickup driven by Henry. Only two eye-witnesses to the accident testified, Haskell I. Rhone, Jr., and the defendant, Henry. Charles Beaver, the investigating officer, was also a witness. Rhone pulled in behind the motorcycle in question while both were traveling in the same direction on the expressway. He followed the motorcycle at a distance of approximately 45 to 50 feet as both vehicles left the expressway and entered the same exit ramp. Rhone testified that as the motorcycle reached the service road on the exit ramp the motorcycle stopped or almost stopped and that when the pickup truck had approached to within 20 to 30 feet at an approximate speed of 50 to 55 miles per hour, the motorcycle pulled out from behind a yield the right-of-way sign from the exit ramp and into the path of the Henry vehicle. Rhone observed the defendant’s pickup swerve to the right in an effort to avoid the motorcycle. Henry, driver of the pickup truck, estimated his speed to be approximately 30 miles per hour. The service road upon which Henry was traveling is a two-lane, one-way road and he was traveling in the left-hand lane as he approached the intersection of the exit ramp and the service road. To further clarify the positions of the vehicles, it is again emphasized that the freeway (U.S. 287) on which the motorcycle was traveling, with Rhone in the car behind, was parallel to the service road on which Henry was driving his pickup. The three vehicles were headed in the same direction. When the motorcycle and Rhone's car left the freeway via the exit ramp, they were slanting or angling toward the service road on which Henry was proceeding. Charles Beaver, the investigating officer, made a diagram of the intersection showing the location of the Wayfarer Motel and the point where the exit ramp of U.S. 287 (the expressway) enters the service road. The diagram shows that the entrance to the Motel opens directly across the service road from the exit ramp. Beaver testified that the skid marks left by the defendant’s truck started in the left lane of traffic of the service road and progressed across the right lane of traffic, where the pickup truck struck and went over the right curb of the service road. The location of the entrance to the Wayfarer in relation to the exit ramp is important. It is obvious from Henry’s testimony that he was not aware of where the entrance road to the Wayfarer Motel was and that he assumed from the moment he first saw the boys on the motorcycle to the point of impact that the boys were turning left at the intersection and not proceeding across the service road into the entrance to the Wayfarer Motel and he took action accordingly. According to his testimony Henry was trying to anticipate what action the boys were taking, rather than to observe what, in fact, they did do. Had Henry observed that the boys on the motorcycle were, in fact, going across the service road to the Wayfarer Motel rather than turning left, then his actions would in all probability have been different. Henry in effect yielded the inside lane to the boys on the motorcycle rather than to apply his brakes or reduce his speed so that they would have the entire left-hand lane of the highway in which to make their turn. Henry, under the evidence, assumed that the boys on the motorcycle would not stop at the yield sign. When he realized that they were not going to stop at the yield sign, he took his eyes off of them and looked to the right. He pulled his vehicle to the right and when he looked back, the boys were directly in front of him and he had, in fact, pulled directly in line with the direction they were going. It is undisputed that if Henry had stayed in the left-hand lane, the collision would not have occurred. Under the evidence in this case the jury could, with good reason, have believed that Henry would have guessed correctly had he maintained a proper lookout. Because he failed in this regard his guess or assumption was an incorrect one. Ordinarily, proper lookout is a question for the jury. It is within the province of the jury to judge the credibility of the witnesses and the weight to be given their testimony. It may resolve conflicts and inconsistencies in the testimony of one witness as well as that of different witnesses. See Texas & Pac. Ry. Co. v. Day, 145 Tex. 277, 197 S.W.2d 332 (1946); Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359 (1957); and Austin Fire Ins. Co. v. Adams-Childers Co., 246 S.W. 365 (Tex.Com.App., 1923). The question of whether or not the actions of a driver after making an incorrect assumption as to the actions of another driver constitute improper lookout was considered by this Court in Henderson v. Smith, 354 S.W.2d 429 (Fort Worth, Tex. Civ.App., 1962, no writ hist.). In Henderson the court said that, “In view of plaintiff’s uncertainty as to whether or not defendant’s car was stopped when she first observed it, the jury was justified in finding that she was negligent in proceeding without again observing the defendant’s car. It is a reasonable inference that had she looked again, or continued to look after first seeing defendant’s car, she would have seen defendant’s approach onto the Highway and could have reduced her speed or otherwise have avoided the accident. “The fact that plaintiff had the right of way did not excuse her from exercising ordinary care for her own safety. Although not required to anticipate negligent or unlawful conduct on the part of others, she was not entitled to close her eyes to that which was plainly visible and which would have been observed by a person of ordinary prudence similarly situated. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273.” In Henderson the assumption was that defendant was stopped at the stop sign and would remain stopped and here the assumption was that the boys on the motorcycle were turning left when, in fact, they were not. In Tips v. Gonzalez, 362 S.W.2d 422, the Court of Texas Civil Appeals, San Antonio (1962, no writ hist.) was faced with the issue of whether or not the driver of an automobile proceeding into the intersection on a green light could be guilty of improper lookout. In that case the court said, “In viewing the evidence we must consider the testimony in a light most favorable to the finding of the jury. Powell v. Sanders, Tex.Civ.App., 324 S.W.2d 587, no writ history. When the evidence is viewed in this light the jury might well have concluded that Tips was not keeping a proper lookout, by keeping his eyes upon the car that had come to a stop rather than watching the car that was approaching him from the north, which was traveling between twenty and twenty-five miles per hour at the time he saw it some fifty yards away. “It is not only required that the driver of a car must look both ways before entering an intersection, even on a green light, but after entering the intersection he must keep up such a lookout for his own safety as a reasonably prudent man would do under the same or similar circumstances.” The cases above cited stand for the proposition that when a driver begins anticipating what another driver will do without observing what in fact he is doing, the fact finder is entitled to conclude that he is not maintaining a proper lookout. The duty to maintain a proper lookout does not cease simply because the vehicle owes the duty to yield the right-of-way or stop at a stop sign or a red light. Kiebach v. Luker, 476 S.W.2d 46, 50 (Houston, Tex.Civ.App., 1st Dist., 1972, no writ hist.); McWilliams v. Muse, 157 Tex. 109, 300 S.W.2d 643 (1957); Reddick v. Lindquist, 484 S.W.2d 441 (Fort Worth, Tex.Civ.App., 1972, no writ hist.); Walsh v. Hershey, 472 S.W.2d 954 (Fort Worth, Tex.Civ.App., 1971, ref., n. r. e.) ; and Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273 (1958). Henry was unable to recall how far he was from the intersection when he took his eyes off the motorcycle. Mr. Rhone’s testimony made it plain that a great many things occurred in that span of time. Henry did not see the motorcycle come to a stop, or near stop. He did not see it start up again nor did Henry see the motorcycle carrying the boys pull across the left-hand lane. During this span of time Henry was looking to the right, anticipating that the boys on the motorcycle were going to turn left and proceed in the left-hand lane and because of a wrong guess Henry pulled his truck to the right. The case of McWilliams v. Muse, supra, involved facts very similar to the facts here involved and the same questions as to whether or not there was any evidence of probative value to support the jury’s verdict. The court in McWilliams said that, “It is not necessary for us to decide whether petitioner or respondent initially had the right-of-way under the provisions of these statutes, because a statutory right-of-way rule is not absolute but relative, and is subject to the qualification that a person entitled to claim such right will exercise it with proper regard for the safety of himself and others. See Lewis v. Martin, Tex.Civ.App., 120 S.W.2d 910 (wr. ref.). If the driver who is under the statutory duty to yield the right-of-way fails to do so, the exercise of ordinary care may require the operator of the other vehicle to yield.” Based upon our review of the record in this cause and the application of the authorities above cited to the facts here involved we find and hold that there was ample evidence of probative value to support the submission of the lookout issues, Nos. 7, 8 and 9, and the findings of the jury with reference to each of such issues. In our opinion the holdings in the Mc-Williams, Ricketts, Henderson, Riddick and Walsh cases, supra, in particular, and the authorities cited therein when applied to the record in this cause, compel a reversal and rendition of this cause. We accordingly sustain appellants’ points of error Nos. one and two, reverse the judgment of the trial court, and here render judgment for the appellants in the sum of $6,341.33, plus interest at 6% from May 19, 1972, the date of the trial court’s judgment. Reversed and rendered.

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In re The ESTATE of Cleveland A. PETTENGILL, Deceased. Francis E. HANSEN, Trustee, Appellant, v. Harley D. BROCK and Emma Pettengill Mooney, Appellees. No. 8439. Court of Civil Appeals of Texas, Amarillo. April 1, 1974. Rehearing Denied April 29, 1974. Richard W. Brainerd, Vega, for appellant. Stokes, Carnahan & Fields (Gary W. Barnard), Amarillo, for appellees. ELLIS, Chief Justice. Proponents of the Last Will and Testiment of Cleveland A. Pettengill, deceased, have appealed the order of the district court granting summary judgment whereby such will was denied probate as being fatally defective on its face. Affirmed. The County Court of Oldham County admitted an instrument purporting to be the Last Will and Testament of Cleveland A. Pettengill, deceased, to probate and then, upon motion by Emma P. Mooney, sister of the deceased, reconsidered and denied probate for the reason that the instrument was defective, as a will, on its face. Issuance of a Writ of Certiorari was ordered by the district court and a complete certified record of the proceedings in the county court was transmitted to the district court. Upon hearing, summary judgment was granted stating that no genuine issue as to any material fact had been presented by proponents of the will. This appeal has been perfected from that proceeding. Cleveland A. Pettengill signed each of three typewritten pages of an instrument appearing to be a will. Attached thereto with pages numbered 4 and 5 is a self-proving clause signed by the deceased and two witnesses. The testamentary disposi-tive clauses purport to make a specific bequest to Elbert L. Whitten with the rest and residue to Walter N. Johnson, Presiding Bishop, as Trustee in Trust for the Reorganized Church of Jesus Christ of Latter Day Saints, and his successor in office for the use and benefit of the office and work of Council of Twelve of said Church, proponents in this action. The witnesses did not sign the instrument purporting to be a will, but signed only the self-proving clause. The question presented is whether the failure to witness the instrument itself renders this instrument so defective on its face as to be null and void as a will as a matter of law. We hold that it is so defective. In order to be valid, a will, if not wholly in the handwriting of the testator, must be attested by two or more credible witnesses. Buchanan v. Thrasher, 387 S. W.2d 950 (Tex.Civ.App. — Austin 1965, writ ref’d n. r. e.). The self-proving clause only allows the will to be probated without the necessity of testimony of any subscribing witnesses, but otherwise the will is to be treated as one not so self-proved. Vernon’s Annotated Texas Statutes, Probate Code § 59. Since this instrument was not properly witnessed, it cannot be effective as a valid will. The fundamental question here presented was involved in Boren v. Boren, 402 S.W.2d 728 (Tex.1966), and in Mc-Grew v. Bartlett, 387 S.W.2d 702 (Tex. Civ.App. — Houston 1965, writ ref’d). In both cases, it was held that the self-proving clause was to be used to eliminate the necessity of testimony of the subscribing witnesses and was not a part of the will itself. There must first be a valid will, properly witnessed, before the self-proving clause is effective. In both cases there were instruments purporting to be wills without subscribing witnesses on the instruments themselves, but affixed thereto were self-proving clauses similar to the one in this case. In the case of McGrew v. Bartlett, supra, the court held that a will was a nullity because the signatures of the testator and the witnesses appeared on the self-proving provisions but not on the will itself. In the instant case, the first three pages appearing to be the will are signed by the testator but not by the witnesses. In the light of the McGrew and Boren cases, the self-proving clause is not, by law, a portion of the will even though attached thereto, for a will not witnessed on its body can be of no force and effect as a matter of law. The will itself, in the instant case, is not witnessed in any manner; therefore, from the face of the instrument, it can be determined that it is not valid as a will and a summary judgment is proper. Accordingly, appellant’s points numbers two and three are overruled. Appellant also contends, by point one, that it was error to grant a summary judgment since the unverified motion was unaccompanied by certified copies of the documents and records referred to in the motion; therefore, Rule 166-A, Texas Rules of Civil Procedure, was not strictly followed. By appellant’s own application for Writ of Certiorari, he requested that a certified copy of the records be transmitted from the county court to the district court and it was so ordered. Therefore, the court had before it each and every document referred to in appellees’ motion for summary judgment, including the copy of the will and order denying probate, all of which were certified of record and before the district court as a part of the record for the purpose of being reviewed at the time of the hearing on the motion for summary judgment. Further, it has been held that “(i)f by reference to the pleadings . . . and other records which the trial court might properly notice, there was ground for a judgment as a matter of law for the movant . summary judgment was proper.” Willoughby v. Jones, 151 Tex. 435, 251 S.W.2d 508 (1952). The case of Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274 (1961) is cited in support of appellant’s contention concerning the failure to attach certified copies to the motion. In that ■ case, there were no records before the court for review. The movant there asked for summary judgment based on the doctrine of res judicata and referred to a previous judgment in the same court. The records of that previous case were not on file nor before the court in the new action; therefore, there was no proof available to support the granting of the summary judgment. In the case at bar, all documents referred to in appellees’ motion were certified as a part of the same case and available for the court’s consideration at the hearing. It is therefore our opinion that the holding in Gardner v. Martin, supra, is not applicable here. It is proper under Rule 166-A(c), T.R.C.P., for the court to render judgment when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In the instant case, a certified copy of the purported will and the order of the county court denying probate were before the district court by request of appellant, and the whole basis for the relief sought by appellant is the review of such instruments, which, as above stated, show on their face that no cause of action nor any material issue of fact was presented. In addition, neither party complained of the district court’s consideration of the documents at the hearing, and the appellant may not raise such objection for the first time on appeal where it fairly appears that no genuine issue as to any material fact exists and that the movant is entitled to judgment as a matter of law. Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230 (Tex.1962). In view of the foregoing, appellant’s point number one is overruled. For the reasons above stated, we hold that, as a matter of law, the instrument purporting to be the will was not entitled to probate. Further, neither a cause of action nor issues of material fact were presented to the trial court, and the appel-lees’ motion for summary judgment, supported by reference to the documents of record before the district court by virtue of the Writ of Certiorari, was properly granted. Accordingly, the judgment of the trial court is affirmed. . Self-proving clause is substantially the same as the one set out in V.A.T.S. Probate Code § 59.

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J. N. BRIDWELL, Appellant, v. C. D. LONG et al., Appellees. No. 8451. Court of Civil Appeals of Texas, Amarillo. April 8, 1974. Rehearing Denied May 6, 1974. Underwood, Wilson, Sutton, Berry, Stein & Johnson, Jerry F. Lyons, Amarillo, for appellant. Fike & Hunter, William Hunter, Dal-hart, for appellees. REYNOLDS, Justice. Plaintiff J. N. Bridwell brought suit against several defendants to establish his title by adverse possession to 240 acres of land in Sherman County, Texas. The trial court entered an interlocutory summary judgment against plaintiff as to 220 acres and, after defendants disclaimed as to the remaining tract of 20 acres, the court entered a final judgment incorporating the summary judgment and vesting title to the 20-acre tract in plaintiff. Plaintiff submits, and we agree, that the summary judgment proof fails to support the judgment as to the 220 acres of land in controversy. Affirmed in part; reversed and remanded in part. The land in controversy is a part of Section 90, Block 1 — C, GH&H R.R. Co. Survey in Sherman County, Texas. The section was grassland and was divided into thirty-two tracts of twenty acres each. About 1937, plaintiff Bridwell purchased two of the 20-acre tracts that are not contiguous to each other. Four of the 20-acre tracts, one of which borders the east side of the section, are owned by the Bivins. The Parmalies own fourteen of the tracts totalling 280 acres. The remaining twelve tracts, aggregating 240 acres, are the subject matter of this litigation. In or prior to 1938, Bridwell leased Section 89 which is north of, adjacent to, and in the same survey as, Section 90. At that time, the two sections were separated by a fence. In 1938, Bridwell leased the 280 acres owned by the Parmalies and at some undisclosed date, Bridwell exchanged the use of some of his grassland outside the section for the use of the Bivins’ grassland in Section 90. Upon leasing the Parmalie land, Bridwell removed the then existing fence between Sections 89 and 90 and placed it along the east side of Section 90, except for the portion of the Bivins’ 20-acre tract adjacent to the east boundary which was fenced around and excluded. He repaired the old two- or three-wire fence on the west side of Section 90 and made it a four-wire fence. He built a new four-wire fence on the south side of the section. The result of this fencing was to enclose Sections 89 and 90, except for the Bivins 20-acre tract on the east side of Section 90, under one fence. Bridwell’s cattle grazed both sections each and every year thereafter until 1959 or 1960. On May 1, 1957, defendant C. D. Long, whose deposition testimony is that he claims title under deeds he began to acquire in the late 1940s or the early 1950s, wrote Bridwell a letter, which referred to an enclosed plat showing the grassland Long owned in Section 90, offering to lease the land to Bridwell for two years for $300.00. Bridwell’s check for that amount was accepted by Long. In 1959 or 1960, defendant C. D. Long built a fence enclosing most of the 240 acres in controversy. Bridwell filed his suit in 1964, seeking fee simple title to the 240 acres, although on appeal he asserts his title to the surface only. The depositions of Bridwell and Long were taken in 1969. In his deposition Bridwell stated that he claimed title to one of the included 20-acre tracts, legally described as the S/2 of the NE/4 of the SW/4 of Section 90, Block 1 — C, GH&H R.R. Co. Survey in Sherman County, Texas, by a deed he acquired about 1964. In 1971, defendants moved for summary judgment and, in February of 1972, the court entered the interlocutory take-nothing summary judgment as to all the land except for the 20-acre tract to which Brid-well claimed title under deed. In 1973, the defendants who had not been dismissed from the lawsuit disclaimed as to the 20-acre tract, and the court entered the final judgment from which this appeal'is taken. Appellees argue that Bridwell’s summarized deposition testimony that he fenced the whole of Section 90 in order to use the Parmalie land, that he did not demand royalty on the mineral production or pay taxes on the land, that he cash leased the land from defendant Long for two years, and that he did nothing else that would show the public or the record owners that he claimed the land adversely, established a “casual and undesigned” fencing of the disputed 220 acres as the only practical way to use the lands owned and leased in the section and negated adverse possession. Appellees conclude that the summary judgment is sustainable on the principle enunciated in McDonnold v. Weinacht, 465 S.W. 2d 136 (Tex.1971), that the enclosure of acreage as the result of construction of fences built for another purpose does not constitute possession that will ripen into title by limitation. However, the summary judgment proof before the court reveals that Brid-well further deposed, consistent with his claim of title by limitation, that he fenced the land in 1938, maintained the fences and grazed the land each year until 1959 or 1960 when Long fenced most of the property, and that he openly, visibly and exclusively possessed and used the land for more than twenty years with the intent to hold it as the owner and to claim it by limitation. It is also the rule, as recognized in McDonnold, that a claimant who builds and maintains fences for the enclosing of land and grazes the same continuously may be in adverse possession. In a summary judgment proceeding, it is not the prerogative of the court to judge the credibility of, or to determine the weight to be assigned to the testimony given by, the affiants. Rather, the determinant is whether, disregarding all conflicts in the evidence and accepting as true the evidence which tends to support the position of the party opposing the motion, the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action. Farley v. Prudential Ins. Co., 480 S. W.2d 176 (Tex.1972). Applying these standards, the summary judgment record does not establish as a matter of law that, and there remains undetermined the material fact issue whether, Bridwell’s fencing was a “casual and undesigned” enclosure of the acreage in controversy resulting in “incidental” grazing. Consequently, in this respect, the judgment must be reversed and remanded. That part of the judgment vesting title to the S/2 of the NE/4 of the SW/4 of Section 90, Block 1-C, GH & H R.R. Co. Survey in Sherman County, Texas, in plaintiff J. N. Bridwell is affirmed. The cause of action pertaining to the remaining 220 acres is severed, and that part of the judgment summarily disposing of plaintiff’s claim thereto is reversed and remanded.

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Wesley EMBRY, Appellant, v. BEL-AIRE CORPORATION, d/b/a Mobilehome Park and Floyd Clark, Appellees. No. 12052. Court of Civil Appeals of Texas, Austin. April 10, 1974. Frank T. Ivy, Austin, for appellant. Dan Moody, Jr., Graves, Dougherty, Gee, Hearon, Moody & Garwood, Austin, for appellees. SHANNON, Justice. Appellant, Wesley Embry, sued appel-lees, Bel-Aire Corporation, doing business as Mobilehome Park, and its employee, Floyd Clark, in the district court of Travis County for $1,131.00 for an alleged wrongful eviction stemming from their termination of utilities to his house trailer. Upon trial to the court, judgment was entered that appellant take nothing. We will affirm that judgment. By previous judgment this Court dismissed this appeal for want of jurisdiction. 497 S.W.2d 466 (1973). The Supreme Court reversed the judgment of dismissal and remanded the case to this Court for consideration of the merits. 502 S.W.2d 543 (Tex. 1973). In September of 1970, appellee Bel-Aire Corporation owned a trailer camp in Austin, and appellant, a student at the University of Texas, obtained a space there for his house trailer. In that connection appellant signed a written instrument tendered him by Clark. The concluding paragraph of that instrument was termed, “Rental Agreement,” and provided as follows : “I have read the rules and regulations of the Bel-Aire Mobilehome Park, set forth above, and I hereby agree to the terms and conditions thereof. Any breach of such terms and conditions by me or members of my party shall constitute a failure to perform an express condition of my tenancy and shall be grounds for immediate termination of my tenancy. It is agreed that my tenancy may be terminated by giving me written notice three (3) days in advance of such termination. All statutory provisions to the contrary are hereby waived and I expressly agree to pay all court costs and attorney fees which may be incurred by Bel-Aire Corporation in enforcing any revocation or termination of my tenancy in accordance herewith. THIS CONSTITUTES A BINDING RENTAL AGREEMENT WHEN ACCEPTED BY THE PARK MANAGER. YOU SHOULD READ THIS AGREEMENT BEFORE YOU SIGN IT AND RETAIN YOUR COPY FOR YOUR FILES.” Appellant pleaded that on April 28, 1971, appellee Clark informed him that his tenancy of the trailer space was terminated and demanded possession by May 1, 1971. Appellant refused to surrender possession of the space and on May 1, he tendered the rent for May and the accrued utility charges for April. Clark refused the tender of rent, but accepted payment for the accrued utilities. Appellant alleged further that he notified Bel-Aire Corporation that he intended to leave as soon as he could find other trailer space. On May 15, 1971, while he was absent, appellant pleaded that Clark “wrongfully, willfully and maliciously” disconnected the electric and gas utility service to appellant’s trailer. Appellant alleged damages in the sum of $1,131.00 which included spoiled food, expenses in moving his trailer to a new location, inconvenience and mental anguish occasioned by loss of sleep and study time, and exemplary damages. Appellees defended upon the basis that appellant was notified orally and in writing to vacate the trailer space, and that he refused to so vacate. After appellant’s tenancy had terminated, but during the time he continued in possession, appellees pleaded that they cut off the gas and electricity to appellant’s trailer house. The court filed numerous findings of fact and conclusions of law, most of which are not questioned on appeal. The court found that appellant’s tenancy was duly and properly terminated in accordance with the rental agreement, and that after the termination of the tenancy, appellant still refused to vacate. Thereafter, pursuant to notice previously given, appellees intentionally cut off the utilities to the trailer house. The termination of the utilities was achieved without either force or violence and without any character of breach of the peace, and was done by turning off a valve under appellant’s trailer which shut off the gas and by flipping a switch on a utility pole which cut off the the electricity. The appellees did not act willfully or maliciously in cutting off the utilities. The amount of damages sustained by appellant, as a result of the termination of the utilities, was eleven dollars. Upon appellant’s request the court filed additional findings of fact, and among other things, found that appellant vacated the space because his tenancy had ended. Appellant had planned to move to a new camp before his utilities were cut off, though that act may have advanced his removal by two or three days. None of the expenses of relocating the trailer were caused by the termination of utility service. The court concluded that the tenancy was duly and properly terminated in accordance with the rental agreement, and after such termination appellant was without legal right to occupy the trailer space. The court was of the further opinion that appellees acted within their legal rights in cutting off the utilities, and that appellant was not entitled to recover any damages by reason of the termination of utility service. Appellant attacks two of the court’s findings of fact and two conclusions of law by several points of error, the first point being that the court erred in finding as a fact that the utilities were cut off without the use of force or violence or without any action in the nature of a breach of peace. We are of the opinion that the evidence supports that finding. Appellant was out of Austin when the utilities were cut off. The electricity was cut off by flipping a switch, and the gas was shut off by turning a valve under appellant’s trailer house. The switch and valve were a part of the facilities maintained and operated by appellee, Bel-Aire Corporation, and the termination of the utility service was accomplished without doing anything to appellant’s fittings and connections, which were not unplugged or disconnected. Appellant’s second point is that the court erred in concluding that the appellees acted within their legal rights in terminating the utility services to appellant’s trailer house. Although his tenancy of the trailer space had indisputably ended, appellant insists that appellees were powerless to do anything to remove him from that space except file a forcible detainer suit in the justice court and obtain a writ of restitution for the space. We are not convinced that the termination of utilities constituted an eviction. At the time of the termination of the utility service appellant had no legal right to remain in the trailer space, and appellees had notified appellant that the utility services would be cut off if he remained. Under these circumstances, it seems doubtful that Bel-Aire Corporation had any obligation to continue to supply appellant with gas and electricity even though one purpose and one result of the termination would doubtless be appellant’s removal from the space somewhat earlier than otherwise. However, for purposes of discussion of appellant’s second point we will assume that the termination of the utility service constituted an eviction. In Texas one who is entitled to possession of land, but who is not in possession, may not forcibly take possession from another. Sinclair v. Stanley, 69 Tex. 718, 7 S.W. 511 (1888), Chrone v. Gonzales, 215 S.W. 368 (Tex.Civ.App.1919, no writ). The rule seems to be, however, that if one entitled to possession can make peaceable entry upon the land, he may resort to peaceable means, short of force, as will render impracticable the further occupation of the land by the other person. See Heironimus v. Duncan, 11 Tex.Civ.App. 610, 33 S.W. 287 (1895, no writ), 6 A.L.R.3rd 177, 189-193. The above discussion demonstrates that appellees’ entry onto the trailer space was peaceable. There was no use of force as in Sinclair and Chrone, supra. By two cross-points, Bel-Aire Corporation complains of error of the court in taxing one-half of costs against it and in denying it attorney’s fees. Bel-Aire’s claim for those items is bottomed upon the instrument which appellant signed when he moved into the trailer camp. As previously noticed, that instrument provides in part “ . . . I expressly agree to pay all court costs and attorney fees which may be incurred by Bel-Aire Corporation in enforcing any revocation or termination of my tenancy in accordance herewith.” Appellant’s suit was for wrongful eviction. The validity of the termination of the tenancy was never seriously at issue. Under these circumstances, we are of the opinion that the attorney’s fees and the costs of court were not incurred by Bel-Aire Corporation in enforcing “ . any revocation or termination of [appellant’s] tenancy.” (Emphasis added) The judgment is affirmed. . See I Harper and James, The Law of Torts, § 3.15 (1956), for a helpful discussion of the development of English and American law limiting the rights of the owner, who is entitled to possession of land, to regain possession.

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Caselaw Access Project

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L. A. VIRACOLA, Appellant, v. DALLAS INTERNATIONAL BANK, Appellee. No. 5315. Court of Civil Appeals of Texas, Waco. March 21, 1974. Rehearing Denied April 25, 1974. Weinberg, Sandoloski & Hines (J. C. B. Aler), Dallas, for appellant. Irion, Cain, Magee & Davis (Tedford E. Kimbell), Dallas, for appellee. HALL, Justice. The defendant, L. A. Viracola, appeals from a summary judgment awarding the plaintiff, Dallas International Bank, recovery against him on a past due note. American Panel Corporation and Viracola are co-makers of the note and Bank is its payee. Viracola signed the note as president of the corporation and in his individual capacity. It was executed on April 7, 1970, and was due 90 days thereafter. This suit was brought against Viracola only. We reverse and remand. To be entitled to a summary judgment in a proceeding such as this, a plaintiff must come forward with proper pleadings and proof that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. Sec. (c), Rule 166-A, Vernon’s Texas Rules of Civil Procedure; Harrington v. Y.M.C.A., (Tex.Sup., 1970) 452 S.W.2d 423, 425. Viewed alone, Bank’s pleadings and motion and supporting proof would entitle it to the judgment rendered. However, in opposition to Bank’s motion, Viracola filed an affidavit in which he set forth the following facts: On November 4, 1966, he was president of American Panel Corporation. On that day the company borrowed $9,000 from Bank and made a note to it for that amount. The money was borrowed to support operation of the company during negotiations for its sale to a buyer in Alabama. Viracola signed the note on behalf of the corporation in his capacity as its president. Soon thereafter, Bank requested Viracola to co-sign the note individually and to pledge his American Panel Corporation stock with Bank “only to assure the Bank that the note would be paid in full first from the proceeds of the sale before any distribution of funds was made to other creditors and stockholders.” Vir-acola was assured by Bank that “if the sale was not finalized” the stock would be returned to him and his individual liability on the note would end. Viracola pledged the stock and co-signed the note. From then until January, 1969, the note was renewed several times. Each renewal was co-signed by Viracola “with the same conditions as per the original note.” In January, 1969, the sale fell through and the Alabama buyer withdrew. Bank returned Viracola’s stock to him. In March, 1969, dickering began for sale of the company to a buyer in Washington, D. C. Bank again requested that Viracola pledge his corporate stock and co-sign renewal notes on April 3, 1969, “with same conditions as original note”. He did. The note was continued and renewed “with the same understandings and conditions.” In December, 1969, Bank sued both makers on the note. In January, 1970, Viracola reviewed the dealings between Bank and the company with Joe Abbey, Bank’s attorney. Abbey requested that Viracola renew the note “under the same conditions” and the suit would be dismissed. On February 6, 1970, the note was renewed and co-signed by Viracola “with the same conditions.” The suit was dismissed by Bank. On April 7, 1970, the note was again renewed “with the same conditions and understandings.” In May, 1970, the buyer from Washington, D. C., withdrew from further negotiations. Viracola resigned from the corporation and it ceased operation. No further actions or demands were taken or made by Bank against Viracola until December, 1972, at which time Bank demanded that he pay the note. This suit was filed in January, 1973. Viracola’s affidavit places in issue the question of whether or not the note was induced by fraud. Fraud in the inducement is a good defense in a suit on a note between the original parties. Costello v. Sample, (Tex.Civ.App., — Waco, 1971, writ ref. n. r. e.) 470 S.W.2d 446, 448; Secs. 3.408, 3.306(2) and 3.302, Vernon’s Ann.Tex.Bus. & C.Code, V.T.C.A. Bank asserts that Viracola’s statements concerning the alleged fraudulent procurement of his signature is without probative value because they violate the rule which excludes parol evidence to vary the terms of a written instrument. Not so. The exception to that rule which permits the admission of extrinsic evidence to show that the execution of a simple contract was procured by fraud applies also in actions on notes. Farnsworth v. Dolch, (Tex.Civ.App. — Waco, 1972, writ ref. n. r. e.) 488 S.W.2d 531, 533; 23 Tex.Jur.2d 538, Evidence, Sec. 363; Sec. 3.306(2), Vernon’s Tex.B. & C.Code; 9 Tex.Jur.2d 220, Bills & Notes, Sec. 207. Contrary to Bank’s contention, it is of no consequence that Viracola has not pleaded fraud. When the summary judgment record discloses facts which show that an amendment to the pleadings of the opposing party will render the position of the moving party untenable under the substantive law, it cannot be said that the movant has established his right to judgment as a matter of law, and summary judgment is improper. Womack v. Allstate Insurance Company, 156 Tex. 467, 296 S. W.2d 233, 237 (1957); Insurance Company of North America v. Cash, (Tex.Sup., 1972) 475 S.W.2d 912, 913. A part of Bank’s summary judgment proof is an affidavit by its attorney, Abbey, in which he states that the renewal note dated February 6, 1970, was executed by Viracola in exchange for dismissal of the lawsuit then pending between the parties. Bank says this proof establishes that Viracola waived his defense of fraud. It cites the familiar rule set forth in Hunter v. Lanius, 82 Tex. 677, 18 S.W. 201, 205 (1892) and restated in Gaylord Container Division v. H. Rouw Company, (Tex.Sup., 1965) 392 S.W.2d 118, 120, that “[W]here one executes an obligation in renewal of a note claimed by the holder to be valid, but known to the maker to be fraudulent or without consideration, the latter will be deemed to have freed the transaction of the fraud, and to have waived the want of consideration.” Waiver is a matter of intention. Ford v. Culbertson, 158 Tex. 124, 308 S. W.2d 855, 865 (1958). It is ordinarily a question of fact. Young v. De La Garza, (Tex.Civ.App. — Dallas, 1963, no writ hist.) 368 S.W.2d 667, 671. Acts done in affirmance of a contract induced by fraud can amount to a waiver of the fraud only where they are done with full knowledge of the fraud and of all material facts, and with the intention clearly manifested of abiding by the contract and waiving all right to recover for the deception. Culver v. Haggard, (Tex.Com.App., 1925, adopted) 270 S.W. 846, 847. If we assume that Abbey’s affidavit conclusively shows that Viracola executed the renewal note in February, 1970, to settle the lawsuit, it cannot be said that the record conclusively establishes that Viracola intended to waive the fraud. Rather, Viracola’s affidavit tends to show that the original fraud was reiterated by Abbey and that Viracola relied upon it; and that the execution of the renewal notes, including the one which is the basis of this suit, was a continuation of the original agreement. Bank’s reliance upon waiver is faulty for an additional reason. Bank did not plead waiver. A movant has not shown that he is entitled to a summary judgment as a matter of law if it is not supported by the pleadings. Rule 166-A, Sec. (c), supra. And a summary judgment cannot be affirmed on appeal on some theory not pleaded in the trial court. Finally, Bank asserts that Viraco-la’s affidavit fails to show that it is made on personal knowledge or that he is competent to testify to the matters stated therein. These objections to the affidavit were not urged in the trial court. They may not be raised for the first time on appeal. Youngstown Sheet & Tube Co. v. Penn, (Tex.Sup., 1963) 363 S.W.2d 230, 234. We sustain Viracola’s points in which he contends that the summary judgment was erroneously granted. In another point he asserts the trial court abused its discretion when it failed to consider an affidavit he filed after the hearing on Bank’s motion for summary judgment but before the motion was formally granted. This affidavit will be before the court at the new trial. The complaint is therefore moot. Reversed and remanded.

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Caselaw Access Project

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2024-08-24T03:29:51.129683

M SYSTEM FOOD STORES, INC., Appellant, v. Felix E. DAVIS, Individually, and in behalf of his wife, Mary E. Davis, Appellees. No. 6349. Court of Civil Appeals of Texas, El Paso. April 3, 1974. Rehearing Denied May 1, 1974. Turpin, Smith, Dyer, Harman & Dawson, James T. Smith, Bobby L. Sanders, Midland, for appellant. Warren Burnett Associated, Richard J. Clarkson, Odessa, for appellees. OPINION STEPHEN F. PRESLAR, Chief Justice. This is a slip and fall case in which the trial Court overruled defendant’s plea of privilege and the defendant appealed. We are of the opinion that the judgment should be affirmed. Appellees, as plaintiffs, brought this suit against the defendant, Appellant, alleging that Mrs. Davis suffered personal injuries while on the premises of the defendant at their store located at the corner of Grandview and 42nd Street, Odessa, Ector County, Texas, that such injuries were occasioned by her slipping and falling on some oil. As the matter is presented to us, we are of the opinion that two questions are present that are controlling of the disposition of it: First, whether the plaintiffs met their burden of proving an act of negligence on the part of the defendant; and, secondly, whether they proved that that negligence occurred in the County of suit. The burden was on the plaintiffs-Appellees to both plead and prove negligence on the part of the defendant, M System Food Stores, Inc., and such burden required proof by a preponderance of the evidence. There are no findings of fact filed in this case but in the absence of such findings it is presumed that the trial Court found such facts as are necessary to support its judgment. As to the negligence which must be established in this case, we turn to the general law that the occupier of premises owes the duty to use ordinary care to keep his premises in a reasonably safe condition for his invitees or to warn of hazards. J. Weingarten, Inc. v. Razey, 426 S.W.2d 538 (Tex.Sup.1968). This includes the duty to inspect and discover dangerous conditions. His duty is to protect his invitees from danger of which he, the occupier, knows or because of his duty to inspect should know in the exercise of ordinary care. Halepes-ka v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.Sup.1963) ; H. E. Butt Grocery Company v. Quick, 442 S.W.2d 798 (Tex. Civ.App., San Antonio 1969, writ ref’d n. r. e.). Thus in a slip and fall case such as this, the plaintiff must establish one of three things in order to recover: (1) that the defendant put the foreign substance on the floor; or (2) that the defendant knew that foreign substance was on the floor and willfully or negligently failed to remove it; or (3) that the foreign substance had been on the floor for such a period of time that it would have been discovered and removed by defendant in the exercise of ordinary care. In this case there is no contention that the defendant or its employees put the oil or substance on the floor so the implication is that the trial Court either found that the defendant knew that the foreign substance was on the floor or that the foreign substance had been on the floor for such a period of time that it would have been discovered and removed by defendant in the exercise of ordinary care. Plaintiff, Mrs. Davis, testified that while shopping for a cooking oil she slipped and fell on what appeared to her to be cooking oil, that it was “dark” and that it was “dirty” and that it appeared as though “someone had tried to clean it up and it was dirty.” On cross-examination she said that the oil appeared to be “fresh,” which would mean to her that it was of recent origin, but she repeated her testimony that it was dirty and that it appeared that an attempt had been made to clean it up. Very similar testimony was presented in H. E. B. Food Stores v. Slaughter, 484 S.W.2d 794 (Tex.Civ.App., Corpus Christi 1972, writ dism’d), and in upholding presumed findings the Court said: “The plaintiff was the only witness to testify in the case. She testified that the puddles of water were dirt streaked as if someone had swept through the water. We believe that a proper inference can be based upon this evidence that the defendant knew the water was on the floor or that it had been there long enough so that the defendant should have known about it. H. E. Butt Grocery Company v. Johnson, 226 S.W.2d 501 (Tex.Civ. App. — San Antonio 1949, n. r. e.). The very nature of water is, that ordinarily men know that dirt streaks are not naturally inherent in water. In order for dirt streaks to be present, it must be adduced, that either the water was tampered with by sweeping through it, or the water was allowed to remain on the floor a sufficient length of time so that outside particles of dust and dirt could accumulate in the water, thereby causing streaking conditions. See Furr’s, Inc. v. Bolton, 333 S.W.2d 688 (Tex.Civ.App.— El Paso I960).” What was said about the water in that case can be said about the cooking oil here, that its natural state is not “dark” or “dirty.” The attempts to clean it up would lead to the inference that an employee or owner of the store would be the one interested in cleaning it up and such evidence and inference would support a finding by the trial Court that it was known to an employee or the owner of the store that the oil was on the floor or that it had been there long enough that they should have known about it. This implied finding by the trial Court constitutes finding of negligence within the meaning of Subdivision 9a of Article 1995, Vernon’s Tex.Rev.Civ. Stat.Ann. In considering the matter, we have followed the rules set forth in James v. Drye, 159 Tex. 321, 320 S.W.2d 319 (1959), by indulging every reasonable in-tendment in favor of the trial Court’s judgment overruling the plea of privilege and giving the testimony every reasonable presumption which could be indulged in favor of the implied finding of the trial Court. There was no direct evidence that the cause of action arose in Ector County, the County of suit, or that the act of negligence occurred in Ector County, but there is an implied finding on the part of the trial Court that it was in Ector County. Proof that the negligence occurred or that the cause of action arose in Ector County, where- the suit was filed, is a -necessary part of the Appellees-plaintiffs’ proof under either Subdivision 9a or 23 of Article 1995, supra. Mrs. Davis testified that her residence was at 1503 East 23rd, that that was in Odessa; that she was the plaintiff in the lawsuit now before the Court of Felix E. Davis and wife versus M System Food Stores, Inc.; she was involved in an accident which is made the basis of the lawsuit; and when asked where that accident occurred she replied: “It was down the cooking oil aisle of the M System on Grandview and Forty-Second.” It is urged that the implied finding by the trial Court can be upheld on the basis that the trial Court took judicial notice of the location of Grandview and 42nd as being in Odessa, and that Odessa is in Ector County; or it is urged that based on all the inferences the trial Court in support of its judgment found Odessa. This Court, as does the trial Court, judicially knows that Odessa is located in and is the County Seat of Ector County, Barber v. Intercoast Jobbers & Brokers, 417 S.W.2d 154 (Tex.Sup.1967), but we are reluctant to hold that it can be judicially known that 42nd and Grandview, with nothing more, is located in Odessa. In the cited case, Barber, in discharging his burden to prove that the accident occurred in Ector County, introduced evidence that it happened “at the intersection on 81st Street and Highway 385, four miles north of downtown Odessa.” Based on the rule that the trial Court may judicially notice geographic facts which are certain, indisputable and capable of verifiable certainty, the Supreme Court said: “The trial court then judicially knew that the point of the collision was in Ector County. In our opinion that fact is one which is ‘certain and indisputable,’ Harper v. Killion, 162 Tex. 481, 348 S. W.2d 521 (1961) and may be judicially noticed with ‘verifiable certainty.’ 1 McCormick & Ray, Texas Law of Evidence, § 211.” In the Barber case, the Supreme Court pointed out that facts about well known and easily ascertainable geographical facts concerning counties are frequently judicially noticed and listed numerous cases. It was then noted that Barber proved the location of the accident, with reference to Odessa. In the case before us, there is no such reference. We simply have “Grand-view and 42nd,” and without the mention of Odessa, we are of the opinion that Grandview and 42nd is simply not an ascertainable geographical fact linked with Ector County. We are of the opinion, however, that the presumed finding that the accident occurred in Ector County can be upheld by the Court judicially noticing that Odessa is in Ector County, and then by the inferences conclude that the point of the accident was in Odessa; for, the conclusion has to be under all the facts and inferences that when the parties were talking about Grandview and 42nd, they were talking about a place located in Odessa. The parties were engaged in trying a lawsuit in which the pleadings recited that the accident occurred at Grandview and 42nd Street in Odessa, Ector County, Texas. The pleadings were not evidence but they were referred to and brought to the attention of the Court by the testimony of Mrs. Davis when she said that she was the plaintiff in the lawsuit now before the Court and that she was involved in an accident which was made the basis for this lawsuit. She then described that such lawsuit involved her slipping and falling on cooking oil and that this accident occurred in the cooking oil aisle of the M System on Grandview and 42nd. We think the Court could well infer from all of this that the Grandview and 42nd was in Odessa. On that basis, we sustain the implied finding of the trial Court. All points of error have been considered and all are overruled. The judgment of the trial Court is affirmed. OSBORN, J., not sitting.

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Caselaw Access Project

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Gerald RICKEY, Appellant, v. Willard O’NEAL et al., Appellees. No. 4674. Court of Civil Appeals of Texas, Eastland. March 22, 1974. Carter, Jones, Magee, Rudberg, Moss & Mayes, Albert E. Andres, Dallas, for appellant. Bader, Wilson, Menaker, Cox & Bran-son, Frank L. Branson, Dallas, for appel-lees. McCLOUD, Chief Justice. This is a guest statute case. Emily Sanford and husband, Gary Sanford, seek damages for personal injuries sustained by Emily Sanford while she was riding as a guest in an automobile driven by Robert Sturgess. Hazel Knight, the natural mother of Emily Sanford, and Willard O’Neal, the former stepfather of Emily Sanford, seek damages for medical expenses incurred by Emily Sanford as a result of the occurrence. Sturgess was killed in the one car accident. Plaintiffs’ suit was brought against Gerald Rickey as Administrator of the Estate of Robert Sturgess. In answer to special issues the jury found that Stur-gess drove his automobile at an excessive rate of speed, failed to keep a proper lookout, and failed to timely apply his brakes. The jury further found that each of such negligent acts or omissions proximately caused the occurrence in question and that each act or omission constituted a heedless and reckless disregard of the rights of others. Judgment was entered for plaintiffs and defendant has appealed. We affirm. Defendant contends there is no evidence of gross negligence, the gross negligence findings by the jury are factually insufficient, and such findings are against the great weight and preponderance of the evidence. The thrust of defendant’s argument is that there is no direct evidence of the driver’s “subjective mental attitude.” He argues that there is no direct evidence that Sturgess knew of the danger, and without such evidence, the findings of gross negligence must fall because such findings could only be reached by improperly basing one presumption upon another presumption. The record reflects that the accident occurred approximately five miles east of Terrell. The investigating officer and an accident reconstruction expert testified that Sturgess was driving at least 90 miles per hour when he reached the curve in the highway where the accident occurred. A warning sign was located approximately ¼ of a mile before the curve. The sign advised traffic to enter the curve at a speed of 40 miles per hour. The weather was clear and the curve was visible without regard to the warning sign. The record contains evidence that the automobile was unable to negotiate the curve because of its fast rate of speed. There was testimony that a vehicle passing the warning sign at 90 miles per hour could slow to 40 miles per hour before reaching the curve. The evidence showed that the driver did not apply his brakes until he entered the curve and started losing control of the vehicle. Under Article 6701b, Vernon’s Ann.Tex. Civ.Stats., a guest has a cause of action for injuries, death or loss against an operator of a vehicle when the injuries, death or loss are caused by the operator’s “heedlessness or his reckless disregard of the rights of others.” Heedlessness and reckless disregard as used in the statute have been equated with gross negligence and defined as, “that entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the right or welfare of the person or persons to be affected by it.” McPhearson v. Sullivan, 463 S.W.2d 174 (Tex.Sup.1971). In determining if there is evidence of gross negligence, we must look to the surrounding conditions and circumstances at the time and place the act was committed. Harbin v. Seale, 461 S.W.2d 591 (Tex.Sup.1970); Fancher v. Caldwell, 159 Tex. 8, 314 S.W.2d 820 (1958). In Benevides v. Peche, 460 S.W.2d 207 (Tex.Civ.App. San Antonio 1970, writ ref. n. r. e.), the court stated that gross negligence may be: “ . . . established by evidence of an act of such quality or kind of conduct as to show that the driver was consciously indifferent to the rights or welfare of his passenger as well as others.” We do not agree with defendant that the gross negligence findings must be set aside because there is no direct evidence that the driver knew of the danger. Defendant’s contention would effectively preclude a finding of gross negligence in most of those cases where, as here, the host-driver was killed in the accident. In such cases the injured guest would not be permitted to testify as to the deceased driver’s mental attitude or knowledge because such evidence would constitute a transaction with the deceased. Article 3716, Vernon’s Tex.Civ.Stats.; Grant v. Griffin, 390 S.W.2d 746 (Tex.Sup.1965). We do not feel that in order to prove gross negligence it is essential in every case to show by direct evidence the subjective mental attitude or knowledge of the host-driver. As observed in Benevides v. Peche, supra, some acts are of such quality or kind as to show that the host was consciously indifferent to the rights and welfare of his guest. The evidence shows that Sturgess consciously accelerated his automobile at a speed of at least 90 miles per hour into a clearly visible curve after passing a sign approximately ¼ mile from the curve warning motorists to enter the curve at a speed of 40 miles per hour. The record also reflects that the host did not apply his brakes until he entered the curve and lost control of the automobile. As observed in Harbin v. Seale, supra, there is “certainly no evidence to suggest that the car reached its excessive speed inadvertently or due to some accident.” We hold that the acts or omissions of Sturgess were of that quality or kind which showed he was consciously indifferent to the rights and welfare of Emily Sanford, and such acts or omissions constituted some evidence of gross negligence. McPhearson v. Sullivan, supra; Harbin v. Seale, supra; Fancher v. Caldwell, supra; Benevides v. Peche, supra, and Hanks v. LaQuey, 425 S.W.2d 396 (Tex.Civ.App. Austin, 1968, writ ref. n. r. e.). We have examined the entire record as required by In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951), and hold that the findings of gross negligence are not factually insufficient nor are such findings against the great weight and preponderance of the evidence. Rogers v. Blake, 150 Tex. 373, 240 S.W. 2d 1001 (1951) and Bryant v. Adair, 490 S.W.2d 950 (Tex.Civ.App. Eastland 1973, writ ref. n. r. e.) relied upon by defendant are distinguishable. The evidence in each case showed only a momentary thoughtlessness or inadvertance. We also disagree with defendant’s contention that in McPhearson v. Sullivan, supra, and Harbin v. Seale, supra, there was direct evidence that the drivers knew of the danger. It is clear in McPhearson, from both the Court of Civil Appeals opinion and the Supreme Court opinion, that the driver’s position was that he had not driven improperly. We think the same can be said for the driver in Harbin. The Court of Civil Appeals opinion in Harbin reflects that the driver estimated his speed at only 40 miles per hour when he first hit the curb. The excessive speed was established by investigators who examined the physical facts. We find nothing in either case to convince us there was direct evidence that the drivers knew of any danger. We do not interpret the Supreme Court’s statement in Harbin, “while realizing the danger,” to mean there was direct evidence the driver was aware of the danger. We think the statement means the driver was charged with such knowledge because of the surrounding conditions and circumstances. Direct evidence of the subjective mental attitude and knowledge of a host-driver, when admissible,, is an important factor to be considered in determining gross negligence. We do not, however, believe that such direct evidence is essential in every case. The surrounding conditions and circumstances at the time the act or omission was committed may show, without any direct evidence of the driver’s mental attitude or knowledge, that the act or omission was of such quality or kind as to show that the driver was consciously indifferent to the rights or welfare of his guest as well as others. We have considered all points of error and all are overruled. The judgment of the trial court is affirmed. . The 1973 Amendment to Article 6701b by the 63rd Legislature is not applicable since the cause of action arose in 1968.

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Joe OLIVARES, Appellant, v. Leif ZARS, Appellee. No. 15281. Court of Civil Appeals of Texas, San Antonio. April 3, 1974. Rehearing Denied May 1, 1974. Jose F. Olivares, San Antonio, for appellant. Gray, Keene, Gardner & Robison, Inc., James K. Gardner, San Antonio, for appel-lee. BARROW, Chief Justice. Appellee brought this suit against Southwest Amalgamated Properties and Securities, Inc., (SWAPS) and eight individuals, including appellant, who comprised the board of directors of SWAPS, for specific performance of a contract to repurchase 10,000 shares of stock transferred to appel-lee in part payment for the business he sold SWAPS. A summary judgment was entered against all defendants, but only Joe Olivares has perfected an appeal. The motion for summary judgment was supported by the uncontroverted affidavit of appellee. From same the following facts are established. On March 8, 1972, appellee sold his business, known as New York Bakery, consisting of real estate and other assets to SWAPS by a written contract. As part consideration for this purchase, SWAPS issued 10,000 shares of common stock to appellee and agreed to redeem or purchase said stock, at appellee’s option, on March 8, 1973, for $4 per'share. The agreement to redeem or purchase said stock was individually granted by the eight directors, jointly and severally. On March 8, 1973, appellee exercised his option to sell said stock to the corporation and/or the directors. This suit was filed after said parties refused to carry out said agreement. Olivares filed an unsworn answer to the motion for summary judgment wherein he denied that appellee was entitled to attorney’s fees or to recover a money judgment for $40,000 and still retain the stock. A summary judgment was granted against all parties, jointly and severally, whereby the stock was tendered into the registry of the court by appellee and SWAPS was ordered to issue, on a pro-rata basis, shares of its common stock to the individual defendants in proportion to the amount of the $40,000 such party paid. Appellant asserts five assignments of error on this appeal. His first two points complain of the summary judgment in that there was no determination that SWAPS was solvent so as to be legally entitled to repurchase such stock under Article 4.09, subd. A (21 of the Business Corporation Act, Vernon’s Tex.Rev.Civ.Stat. Ann. The other three points complain of the construction of the contract of guaranty so as to impose personal liability upon him. Article, 4.09, subd. A (2), supra, provides in part that “ . . .no redemption or purchase of redeemable shares shall be made by a corporation: (2) When there is a reasonable ground for believing that such redemption or purchase will render the corporation unable to satisfy its debts and liabilities when they fall due.” See also Article 2.03(F) of said Act, supra. There is nothing in the record before us to raise the question of insolvency of SWAPS. Neither the corporation, nor one of the individual defendants alleged that the repurchase of these shares would require the corporation to commit an act forbidden by the Business Corporation Act. Nor was such issue raised by any evidence in the summary judgment record. Cf. Hall v. Weller, Hall & Jeffery, Inc., 497 S.W.2d 374 (Tex.Civ.App. — Houston [1st] 1973, writ ref’d n. r. e.) ; Lanpar Company v. Stull, 405 S.W.2d 235 (Tex.Civ.App.— Waco 1966, writ ref’d n. r. e.). Furthermore, it is seen that this appeal is by one of the individuals who guaranteed repurchase of the stock. The same situation was presented in Hall v. Weller, Hall & Jeffery, Inc., supra. It was there held that the stockholders could be held to their agreement to repurchase any of the stock that the corporation might be forbidden by Article 2.03(F) of the Act to repurchase. Appellant’s first two points are overruled. Appellant’s principal complaint under his other points is that there was no consideration for his personal guaranty of the repurchase agreement. Such complaint is without merit. The issue of failure of consideration was not raised by pleading as required by Rule 94, Texas Rules of Civil Procedure. Furthermore, it is seen that the guaranty of performance by the eight individuals was an integral part of the consideration received by appellee for the sale of the New York Bakery to SWAPS. The transfer of such assets to SWAPS by appellee was sufficient consideration for such guaranty by appellant and the other individual directors of SWAPS. Coleman Furniture Corp. v. Lieurance, 405 S.W.2d 646 (Tex.Civ.App. — Amarillo 1966, writ ref’d n. r. e.). It is seen that the appellant and the other directors clearly and unambiguously agreed to repurchase the 10,000 shares of stock issued appellee if the corporation failed to do so. The trial court did not err in entering judgment against appellant to enforce this agreement. Appellant’s final three points are without merit. The judgment is affirmed. . The guaranty provides as follows: “Personal Guarantee We, the undersigned, Directors of SWAPS, INC., do in consideration of the foregoing Contract, and the benefits to us personally, hereby personally, jointly and severally, guarantee the re-purchase of the Capitol Stock by SWAPS, INC., referred to in the foregoing Contract under the terms and conditions as stated therein. And we do further acknowledge that this guarantee is made as an inducement to the execution of said Contract by Leif Zars.”

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SOUTHERN PACIFIC TRANSPORTATION COMPANY, Appellant, v. The COUNTY OF HARRIS, Appellee. No. 16300. Court of Civil Appeals of Texas, Houston (1st Dist.). March 21, 1974. Rehearing Denied April 18, 1974. Walter E. Workman, Diana E. Marshall, Houston, for appellant; Baker & Botts, Houston, of counsel. Joe Resweber, County Atty., Jerry B. Schank, Edward J. Landry, Senior Asst. County Attys., Houston, for appellee. PEDEN, Justice. In an eminent domain proceeding brought as a cross-action in the district court under Article 3269, Vernon’s Texas Civil Statutes, the condemnee asserts that the district court had no jurisdiction over the cross-action because the condemnor neither pleaded nor proved a bona fide effort to agree with the condemnee on the value of the interest sought. Southern Pacific had brought suit in district court where it had obtained an order temporarily enjoining Harris County from building a highway across the railroad’s easement. Our opinion on a prior appeal of the injunction aspect of this case appears at 457 S.W.2d 336. Without waiving its claim to a right to cross the easement, Harris County then brought a cross-action under the provisions of Article 3269 to condemn the right to build and use its highway across the easement. Upon a hearing, the district court granted Harris County’s motion to dissolve the temporary injunction (as it pertained to the property which was being condemned) after Harris County had deposited in the registry of the court the amount which the court had fixed as security to insure adequate compensation to Southern Pacific for its property taken and damages suffered. It is from this order that Southern Pacific appeals. Article 3264, V.T.C.S., entitled “Procedure,” commences: “The exercise of right of eminent domain shall in all cases be governed by the following rules:” Eleven rules are then enumerated. The first includes a provision that “the party desiring to condemn the property after having failed to agree with the owner of the land on the amount of damages shall file a statement in writing with the county judge of the county in which the land or a part thereof is situated.” The rules that follow concern the appointment by the county judge of three disinterested freeholders to serve as special commissioners and their hearing to assess the landowner’s damages. Article 3269, the statute under which Harris County brought its cross-action in this case, provides: “When . . . any county . is a party as ... defendant . to any suit in a District Court, in this State for property or for damages to property occupied by them or it for the purposes of which they or it have the right to exercise such power of eminent domain, or when a suit is brought for an injunction to prevent them or it from going upon such property or making use thereof for such purposes, the Court in which such suit is pending may determine the matters in dispute between the parties, including the condemnation of the property and assessment of damages therefor, upon . . . cross-bill of the defendant . . . ; and such . . cross bill . . . shall not be an admission of any adverse party’s title to such property; . . .” In discussing an earlier version of Art. 3269, but not passing on the same point involved in our case, the Texas Supreme Court in Brazos River Conservation and Reclamation District v. Costello, 135 Tex. 307, 143 S.W.2d 577 (1940), stated: “The dominant rule controlling the construction of a statute is to ascertain the intention of the legislature expressed therein. An Act should be given a fair and sensible construction, in order to carry out the purposes for which it was enacted, and not to be construed in such manner as to nullify or defeat its purposes. 39 Tex.Jur., pp. 166, 167, sec. 90. “Clearly the object of Article 3269 is to expedite the determination of all matters to which it relates. This Article, when given a fair and reasonable construction, in connection with the constitutional provisions, means that under same the District Court is vested with jurisdiction to determine the questions in dispute and to require the party instituting such condemnation proceedings to give adequate security for the property sought to be condemned . “In this instance the District has tendered into the registry of. the court, . the specific sums allowed all parties, and will comply with any orders that the court may make relating to such condemnation proceedings. This is all the landowners can demand under the law.” Article 3269 does not contain a requirement that the condemnor, before filing its condemnation proceeding in the district court, shall have failed to agree with the landowner on the amount of damages nor a requirement that the district judge appoint special commissioners to assess those damages. We consider these omissions from Article 3269 (as compared to Article 3264) to have been purposeful and sensible. If title is in dispute, the relative strengths of the parties’ title claims will often be the dominant factor in fixing damages. We believe the legislature did not intend to require one who claims title to property to make a bona fide offer to another claimant and that the legislature did not consider the procedure established in Art. 3264 for holding special commissioners’ hearings to be well adapted to evaluating title claims. We find only one Texas case on this point, Holcomb v. City of Dallas, 315 S. W.2d 454 (Tex.Civ.App.1958, writ ref. n. r.e.). The City had brought condemnation proceedings in county court and had built a storm sewer over the Holcombs’ property when the case was tried. It was dismissed for want of jurisdiction because the City had failed to offer to settle with the Hol-combs before filing suit. The Holcombs then sued for damages in the district court, and the City filed a cross-action to condemn an easement for the storm sewer. The City prevailed in the district court, and in one of the Holcombs’ points of error on appeal they complained of the trial court’s having sustained the City’s exception to their pleading that the City had failed to make a bona fide attempt to settle the controversy before filing its cross-action in condemnation. The Texarkana Court of Civil Appeals held that Article 3269 is a special statute that authorizes condemnation by reconvention in such cases and that an attempt to settle the controversy was not necessary as in an ordinary condemnation proceeding. Our holding on the appellant’s first point also disposes of its remaining one. Af firmed.

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Frank HUTCHISON et al., Appellants, v. BRISTOL COURT PROPERTIES, LTD., et al., Appellees. No. 17508. Court of Civil Appeals of Texas, Fort Worth. March 22, 1974. Rehearing Denied April 26, 1974. Andress, Woodgate & Lodewick, and Wm. Andress, Jr., Dallas, for appellants. Golden, Potts, Boeckman & Wilson, and H. David Herndon, and Duncan E. Boeck-man, Dallas, for appellees. OPINION LANGDON, Justice. This is an appeal under Rule 385, Texas Rules of Civil Procedure, from the grant of a temporary injunction against a trustee’s sale. In August of 1971, appellant Hutchison sold a 148 unit apartment complex to the appellee Limited Partnership. In October, 1973, the appellants posted the property for foreclosure on November 6, 1973. Appel-lees obtained a temporary restraining order restraining the sale of the property and, after a full hearing, were granted a temporary injunction, temporarily enjoining foreclosure until a final hearing can be had. Appellants’ appeal from the order granting the temporary injunction asserts that the trial court abused its discretion in granting appellees a temporary injunction. We affirm. The sole question to be decided by this Court is whether the trial court abused its discretion in granting such injunction. The granting of a temporary injunction is not an abuse of discretion if the applicant therefor pleaded and offered evidence tending to prove a probable right to a permanent injunction and probable injury if the temporary injunction is not granted. Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W. 2d 549 (1953). One seeking a temporary injunction is not required to prove that he will prevail on final trial in order to bring his case within the range of the trial court’s discretion to grant a temporary injunction. Transport Co. of Texas v. Robertson Transports, supra. In this case there are no findings of facts or conclusions of law. In the absence of such findings of fact, all fact issues are presumed to have been found by the trial court in favor of the judgment. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950). In determining whether there exists evidence sufficient to support the trial court’s judgment and the implied findings incident thereto, all evidence adverse or contradictory to said judgment and findings is to be disregarded entirely and only that evidence most favorable to the judgment and the implied findings should be considered. Renfro Drug Co. v. Lewis, supra. In determining the correctness of the issuance of a temporary injunction, the evidence is to be considered in the light most favorable to the judgment. SCM Corporation v. Triplett Company, 399 S.W.2d 583 (San Antonio, Tex.Civ.App.1966, no writ hist.) ; Skinner Corp. v. Calallen Independent School Dist., 409 S.W.2d 929 (Corpus Christi, Tex.Civ.App.1966, no writ hist.); Erickson v. Rocco, 433 S.W.2d 746 (Houston, Tex.Civ.App., 14th Dist., 1968, ref., n. r. e.). The trial court did not abuse its discretion in granting the temporary injunction if disregarding all evidence in opposition to such judgment and considering only the favorable evidence, there is evidence which tends to prove a probable right to a permanent injunction and probable injury. We can see no necessity in detailing the evidence contained in this record. We are of the opinion and hold that such evidence warranted the granting of the temporary injunction and therefore the court did not abuse its discretion in granting same. We agree with the appellee that the facts of the present case are similar to those in Hiller v. Prosper Tex, Inc., 437 S.W.2d 412, 414, 415 (Houston, Tex.Civ. App., 1st Dist., 1969, no writ hist.) in which the Court of Civil Appeals held that the trial court did not abuse its discretion in granting a temporary injunction against an attempted foreclosure sale. In fact, in Hiller v. Prosper Tex, Inc., supra, the court felt that the conduct of the note holder in refusing, just as Hutchison did in the present case, to advise the debtor of the amount past due, was such inequitable conduct that that fact alone was probably sufficient to invoke the equity powers of the court to prevent acceleration. Hiller v. Prosper Tex, Inc., supra, at pages 414 and 415. Under the record in this case the appel-lees pleaded and offered evidence proving or tending to prove a probable right to permanent injunction and probable injury if the temporary injunction was not granted and, therefore, the trial court did not abuse its discretion in granting the appel-lees a temporary injunction. Affirmed.

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TEXAS PACIFIC INDEMNITY COMPANY, Appellant, v. BUILDING MATERIAL DISTRIBUTORS, INC., Appellee. No. 5311. Court of Civil Appeals of Texas, Waco. March 21, 1974. Rehearing Denied April 25, 1974. Thompson, Coe, Cousins, Irons & Porter, Larry L. Gollaher and Arthur W. Stone, Dallas, for appellant. Burrow & Earls, William Burrow, Sr., Dallas, for appellee. OPINION McDonald, Chief Justice. This is an appeal by defendant Insurance Company from judgment for plaintiff Building Material Distributors, Inc., on a windstorm policy issued by defendant. The case involves the collapse on May 6, 1969, of a warehouse building at 134 Oak Lawn in Dallas. Plaintiff was lessee-occupant of the building, and had insured the contents, consisting principally of aluminum siding and shingles, against windstorm with defendant. The issues tried to a jury were controverted as to whether windstorm was the sole cause of the building’s collapse, or whether the collapse was caused or contributed to by the weight of rainwater that collected on the roof. The trial court defined sole proximate cause as meaning “the only proximate cause. If there is more than one proximate cause of an event, then no single proximate cause can be the sole proximate cause.” The jury found that windstorm was the sole proximate cause of the collapse of the building and answered issues upon which the trial court rendered judgment for plaintiff-appellee. Appellant in its brief states “no complaint is made by the insurer-appellant as to those findings nor is it asserted that such findings taken alone would not support the judgment rendered.” Appellant Insurance Company appeals on 2 points: 1) The trial court erred in failing to render judgment for the insurer, notwithstanding the verdict, because the insured’s obtaining of judgment in Cause No. 72-7711 impaired the insurer’s rights of subro-gation. 2) The trial court erred in giving the jury a verdict inducing charge of the “Allen charge” variety, and in failing to grant Defendant’s Motion for Mistrial, which was based on that “Allen charge”. We revert to contention 1). The insurance policy sued on provided: “Subrogation. This company may require from the insured an assignment of all right of recovery against any party for loss to the extent that payment therefor is made by this Company. The insured may not, except it be in writing executed prior to the loss, waive his right of recovery from any party.” Plaintiff-appellee originally filed suit against Lerer Realty Company, Inc., owner of the building alleging that Lerer failed to maintain the roof in good repair and failed to maintain adequate drainage on the roof, which caused the roof to collapse. Thereafter plaintiff amended to include defendant-appellant Insurance Company which was sued on the windstorm policy and its agent Gene Smyers, and a sublessor Lydick, Inc. Thereafter plaintiff dismissed as to all defendants except appellant herein; and plaintiff filed a new suit “Cause 72-7711” .against Lerer. This suit resulted in judgment for plaintiff for $15,000. Appellant attempted to file a third-party action to bring Lerer back into the case which was denied by the trial court; and moved for judgment plaintiff take nothing on the basis of the impairment of the insurer’s subrogation rights, which motion was overruled by the trial court. Thereafter defendant asserted the impairment of subrogation rights as a complete defense and moved for instructed verdict, and later for judgment notwithstanding verdict, which motions were overruled. Appellant insurer^here asserts that plaintiff-appellee by dismissing as to Lerer deprived it of right of subrogation, and such is a complete defense under the policy. Appellant cites Foundation Res. Ins. Co. v. Cody, Tex.Civ.App., NWH, 458 S.W.2d 214; State Farm Mutual Automobile .Ins. Co. v. Elkins, Tex.Civ.App., NWH, 451 S. W.2d 528, and; Millers Mutual Fire Ins. Co. of Texas v. Mitchell, Tex.Civ.App., NWH, 392 S.W.2d 703 as controlling. These cases hold that where an insured under a contract containing a right of sub-rogation on behalf of the insurer, settles with or releases the wrongdoer from liability for loss before payment has been made by the insurer, that the insurer’s right of subrogation is destroyed, and the insured forfeits any claim for indemnity under the policy. Paragraph 14-C of the lease provides “If the building * * should be damaged by, tornado * but not to such extent that rebuilding or repairs cannot be completed within 120 days after the date upon which Landlord is notified by Tenant of such damage * * Landlord shall at its sole cost and expense proceed * * to rebuild and repair such building * Appellant-defendant’s contention is overruled, and its authorities are inapplicable to the factual situation in this case. In this case windstorm was the sole proximate cause of the loss; under the trial court’s definition there could not be another cause; thus there were no subro-gation rights. Appellant’s authorities involve situations where the insured released the tort feasor who caused his loss, thus depriving the insurance company of its right under the policy of subrogation against such tort feasors. Here the sole proximate cause of the loss was windstorm, and plaintiff’s action thus could not deprive defendant of any right of subrogation. And defendant makes no complaint of the jury findings. The record reflects plaintiff’s recovery in Cause No. 72-7711 was for Lerer’s failure to repair and rebuild the building as it was required to do in paragraph 14-C of the lease. Appellant’s point 1 is overruled. Point 2 complains of an asserted verdict inducing charge of the “Allen” variety given to the jury by the trial judge. The jury commenced its deliberations at 12:15 PM on November 9, 1972. After deliberating the next day (which was Friday) for an hour and fifteen minutes they sent a note to the court “We are unable to agree on Special Issue 1. Do we answer the others.” The trial court then dictated the charge complained of in which he advised the jury to consider succeeding issues, and then “It is suggested that you continue or return to a further consideration of Issue 1 and continue your labors in that direction until you are tired. I would suggest that you work on until such hour as you feel that further work will not be productive and then recess until Monday morning at nine AM * * Appellant asserts “the court coerced a verdict from the jury by threatening to hold the jury over to the following Monday.” The jury returned its verdict later that day at approximately 3:35 PM. Appellant did not object to the charge at the time it was dictated by the judge or when it was read to the jury. Some 45 minutes after the jury had retired counsel made motion for mistrial. We think appellant waived any complaint with the charge by his failure to object; Rule 274, Texas Rules of Civil Procedure; and further appellant has not shown harm as a result of the charge. Rule 434 TRCP. Point 2 is overruled. Affirmed.

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Mary Elizabeth THORPE, Appellant, v. Stuart Edward THORPE, Appellee. No. 5323. Court of Civil Appeals of Texas, Waco. March 21, 1974. Rehearing Denied April 25, 1974. Henry Klepak and Donald J. Haid, Dallas, for appellant. Stroud & Smith, L. Vance Stanton and William A. Hoy, III, Dallas, for appel-lee. OPINION McDONALD, Chief Justice. This is an appeal by appellant Mary Elizabeth Thorpe from take nothing judgment in her suit in the nature of a Bill of Review, against appellee Stuart Edward Thorpe. Appellant and appellee were divorced on August 31, 1972, judgment in such case awarding appellant certain property and custody of the parties’ two minor children. Thereafter appellee filed suit in the nature of a Bill of Review to set aside the judgment. A default judgment was rendered on March 23, 1973 readjudicating the parties’ property rights and awarding custody of the parties’ two minor children to appellee. Neither appellant nor her counsel were present, but within ten days appellant filed a motion to set aside Default Judgment. No affidavits were submitted and no testimony was presented at the hearing, on such motion to set aside default judgment. The trial court overruled such motion, and appellant perfected appeal to the Court of Civil Appeals. In the Court of Civil Appeals appellant failed to file brief, and appellee and appellant both moved for dismissal of such appeal. The Court of Civil Appeals dismissed appellant’s appeal, and appellant did not apply for a Writ of Error. Subsequent to denial of appellant’s motion to set aside the default judgment, but prior to dismissal of her appeal by the Court of Civil Appeals, appellant filed this case in the nature of a Bill of Review to set aside the default judgment entered against her in appellee’s Bill of Review suit on March 23, 1973. Trial was before the Court, which after hearing rendered judgment denying appellant’s Bill of Review and decreeing that she take nothing. Appellant appeals asserting she is entitled to a new trial; that she has a meritorious defense to appellee’s Bill of Review suit; that she was prevented from presenting such defense by fraud, mistake or wrongful conduct on appellee’s or appel-lee’s counsel’s part; and that she was not negligent in presenting her defense at trial. Appellee by reply point asserts the judgment of trial court correct because appellant could not maintain her Bill of Review because she negligently failed to avail herself of her adequate, legal remedies. As noted appellant learned of the default judgment against her and within ten days filed motion to set aside such default judgment (which we treat as a motion for new trial). No evidence whatever was submitted and the trial court overruled such motion. Appellant appealed but moved to dismiss her appeal. A Bill of Review is an equitable remedy designed to prevent manifest injustice. But before a litigant can successfully set aside a final judgment by Bill of Review he must allege and prove, within the time allowed, 1) a meritorious defense to the cause of action alleged to support the judgment, 2) which he was prevented from making by fraud, accident or wrongful act of the opposite party, 3) unmixed with any fault or negligence on his own part. Here appellant did not make proof of the allegations in her motion for new trial (which were insufficient under the rules laid down in Ivy v. Carrell, S.Ct., 407 S.W.2d 212), and permitted the judgment to become final by failure to prosecute her appeal. In such situation appellant is chargeable as a matter of law with “fault and negligence on her own part”. French v. Brown, Tex.Sup., 424 S.W.2d 893; Executive Press, Inc., v. Oak Cliff Mirror and Glass Co., Tex.Civ.App., NWH, 478 S.W. 2d 642; Smith v. Smith, Tex.Civ.App., NWH, 468 S.W.2d 139. Appellant’s assertions are overruled, and appellee’s reply point is sustained. The judgment is correct. Affirmed. . Appellant’s brief contains no points as required by Rule 418, Texas Rules of Civil Procedure; Rossi v. Johnson, Tex.Civ.App., NWH, 355 S.W.2d 582; Ward v. Searbor-ough, Tex.Com.App., 236 S.W. 441, 444; Edwards v. Strong, 147 Tex. 155, 213 S.W. 2d 979. We have nevertheless listed the assertions advanced in appellant’s brief.

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PACE SPORTS, INC., and G. L. Pace, Appellants, v. DAVIS BROTHERS PUBLISHING CO., INC., Appellee. No. 5308. Court of Civil Appeals of Texas, Waco. March 28, 1974. Rehearing Denied May 2, 1974. Elvis G. Schulze, Austin, for appellants. Charles L. Cantrell, Waco, for appellee. OPINION McDONALD, Chief Justice. This cause is before us on petition for writ of error to a $6086.65 default judgment rendered against petitioners in suit for debt plus attorney’s fees. Plaintiff Davis Brothers sued defendants Pace Sports, Inc., and G. L. Pace, alleging defendants entered into an agreement with. plaintiff whereby plaintiff would print and distribute a magazine for which defendants promised to pay plaintiff; that $4227.82 of the debt thus incurred remains unpaid, for which plaintiff prayed judgment, plus interest and attorney’s fees. Both defendants were served with citation. Defendants filed no answers and did not appear in the trial court in person or by attorney. Default judgment was rendered by the trial court against defendants for $4227.82 plus $348.61 interest; plus $1510.22 attorney’s fees (totalling $6086.65). Defendants invoke our appellate jurisdiction by writ of error, contending the trial court erred in rendering a default judgment against them: 1) In that the default judgment bears a date prior to the alleged date of the contract made basis of suit. 2) In that there is nothing in the record which proves the existence of a contract or a liquidated demand. 3) In that there is nothing in the record which proves the existence of an agreement whereby G. L. Pace could be held responsible for the debts of Pace Sports, Inc. 4) In that if it is a suit on sworn account the affidavit is insufficient. 5) Which provided for attorney’s fees on a contingent basis. Point 1 asserts that because the petition alleged “an agreement on or about November 19, 1973”, and the judgment was rendered on August 14, 1973, that the judgment does not conform to the pleadings and is thus disclosed by the papers to be invalid. The alleged date of the agreement, “on or about November 19, 1973”, is obviously a clerical error since the petition after reciting the agreement further alleges that “plaintiff subsequently printed and distributed 3 issues of this magazine * * * and “that part of such debt remaining to be paid as of May 11, 1972” was $12,067.-37; and that subsequently defendants assigned accounts receivable to plaintiff on May 26, 1972; and that plaintiff after collecting from the accounts receivable still were due $4,227.82 from defendants; and plaintiff’s acknowledgment on its petition was signed on July 6, 1973; and suit was filed on July 6, 1973. The discrepancy in the alleged date of the agreement could not have surprised defendants or prejudiced their rights. May v. Pollard, S.Ct., 28 Tex. 677; Tillman v. Heller, S.Ct., 14 S.W. 271. Moreover there is no material variance shown. Hal-fin v. Winkleman, 83 Tex. 165, 18 S.W. 433; First National Bank v. Stephenson, 82 Tex. 435, 18 S.W. 583. The judgment is not rendered invalid by the allegation that the agreement was made “on or about November 19, 1973”; and invalidity of the judgment is thus not disclosed by papers on file in the case. As noted both defendants were served with citation but filed no answer and did not appear at the trial in person or by attorney. The trial court had jurisdiction to render the judgment. Defendants have not alleged, or by affidavit or other evidence shown they were not negligent in suffering the default judgment to be rendered against them; nor alleged, or by affidavit or other evidence shown they have a meritorious defense to plaintiff’s action, which they were prevented from making by fraud, accident or wrongful act of the opposite party. Such is their burden before they can be relieved of the default judgment. Ivy v. Carrell, S.Ct., 407 S.W.2d 212; French v. Brown, S.Ct., 424 S.W.2d 893; McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706; Eagle Life Ins. Co. v. George, Tex.Civ. App., Er.Ref., 473 S.W.2d 311. McEwen and Eagle, supra, hold the foregoing rules apply in writ of error cases. Eagle, a writ of error case, quotes from McEwen and holds: “Only if a court had no jurisdictional power to render the judgment should a negligent defendant or one with no meritorious defense to the suit be able to relieve himself of the burdens and consequences of a default judgment.” Petitioners’ points are overruled. Affirmed.

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2024-08-24T03:29:51.129235

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Billy Roy MIDDLETON et al., Appellants, v. Henry MARTIN, Appellee. No. 12088. Court of Civil Appeals of Texas, Austin. April 10, 1974. Rehearing Granted April 10, 1974. John R. Duren, Copperas Cove, for appellants. Charles W. Lynch, Lynch, Nored, Martin & Millican, Lampasas, for appellee. On motion for rehearing PHILLIPS, Chief Justice. We withdraw our original opinion in this case and substitute the following: Henry Martin, appellee herein, filed suit in the district court of Bell County against Big K Furniture Company, Inc. and its officers Billy Roy Middleton and Marlin Q. Bond on an open account for $1,200. Ap-pellee also sought to have a receiver appointed to marshall and preserve the assets of Big K Furniture Company, Inc. pending final hearing on the merits. The court then appointed a receiver as prayed for. The interlocutory order appointing the receiver was rendered May 30, 1973. Thereafter, appellants gave notice of appeal and filed their transcript with this Court. On July 24, 1973, while the case was on appeal, Henry Martin moved the trial court to dismiss the action as to all defendants. The trial court granted this nonsuit by order dated July 23, 1973. Costs were assessed against the plaintiff Martin. The dismissal of this suit at the appellee’s request does not defeat our jurisdiction which was lawfully acquired. Hedrick v. Matthews, 216 S.W. 424 (Tex. Civ.App.1919). When the question involved in an appeal, however, becomes moot so that no effective relief can be given to the party aggrieved, the appeal will be dismissed and an appellate court has no authority to make any other disposition of the appeal. A party may take a nonsuit and dismiss the cause of action asserted by him at any time notwithstanding the pen-dency of an appeal. Gladden v. Thurmond, Tex.Civ.App., 77 S.W.2d 703. Thus, the question becomes moot. Courts will not act at the instance of a defendant for no other purpose than to renew litigation against himself. Atlantic Oil Producing Co. v. Jackson, District Judge, et al., 116 Tex. 570, 296 S.W. 283 (1927). When a cause becomes moot on appeal, all previous orders and judgment should be set aside and the cause, not merely the appeal, dismissed. Freeman v. Burrows, 141 Tex. 318, 171 S.W.2d 863 (1943). Appellee’s motion for rehearing is granted. On rehearing we reverse judgment of the trial court and remand this case to the trial court with instructions that the cause be dismissed. Costs are assessed equally against the parties. (Rule 448, Texas Rules of Civil Procedure).

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In the Interest of J. D. H., a child under seventeen years of age, Petitioner, v. JUVENILE COURT OF ST. LOUIS COUNTY, Respondent. No. 58558. Supreme Court of Missouri, En Banc. April 29, 1974. Harvey Tessler, Clayton, for petitioner. Corinne R. Goodman, Supervising Atty., Clayton, for respondent; Gregory D. Hoff-mann, Law Student Intern. SEILER, Judge. This is habeas corpus involving a juvenile. The question is whether the juvenile court of St. Louis County, Missouri, is unlawfully restraining him. We conclude it is not and accordingly deny relief. The juvenile is a resident of St. Louis County. He is now between 16 and 17 years of age. On February 7, 1973, after a hearing on a supplemental petition, he was placed under the jurisdiction of the St. Louis County juvenile court. The court’s order of that date made a finding of and exercised jurisdiction over the juvenile and, after providing for a six month’s commitment to the Division of Mental Health and calling for reports and further review by the court, concluded by stating “All subject to the continuing jurisdiction of the court.” This order was modified on March 16, 1973 to transfer custody, with the matter of further disposition to be reviewed by the court and concluding with these,words: “All subject to the continuing jurisdiction of the Court and courtesy supervision to be arranged by the Deputy Juvenile Officer.” On October 1, 1973, the juvenile allegedly abducted a woman in St. Louis County and took her car after she escaped. He was apprehended that same day in Jefferson County, Missouri while driving the car west on U.S. 66, by officers of the highway patrol, who delivered him to the juvenile officer in Jefferson County. Within a few hours the juvenile officer released him to police officers from St. Louis County, who took him from Jefferson County to the detention center of the St. Louis County juvenile court, where he has since been held under order of the St. Louis County juvenile court. There is pending before that court a supplemental petition filed January 21, 1974 by the juvenile officer of St. Louis County, alleging that the behavior, environment, and associations of the child were injurious to his welfare, by reason of the alleged offenses of October 1, 1973. The juvenile contends that inasmuch as he was apprehended and taken into custody in Jefferson County and there delivered to the juvenile officer of that county, the juvenile court of Jefferson County obtained exclusive jurisdiction over him and therefore St. Louis County is without jurisdiction to detain him. Respondent takes the position that the juvenile court of St. Louis County, having already taken and continued jurisdiction over the child as shown by the above orders, is the only juvenile court which has exclusive, original jurisdiction over the juvenile to detain him and hear subsequent petitions filed concerning him, citing Sec. 211.041. The juvenile code, chapter 211, establishes a statewide juvenile court system for Missouri. Sec. 211,031 gives this statewide juvenile court system original jurisdiction of all juvenile proceedings under that section, to the exclusion of courts of general jurisdiction. In addition, Sec. 211.131 provides that a juvenile comes under the protective wing of the juvenile court system —that is, that the statewide juvenile court system has exclusive jurisdiction of a juvenile from the time he is taken into custody. Sec. 211.061 aids these provisions by requiring that once a juvenile is taken into custody by police he “shall be taken immediately and directly before the juvenile court or delivered to the juvenile officer or person acting for him.” This insures that custody of the juvenile is given to the juvenile court system, which has exclusive jurisdiction to determine proper disposition of the juvenile. Sec. 211.041 provides: “When jurisdiction over the person of a child has been acquired by the juvenile court under the provisions of this chapter in proceedings coming within the applicable provisions of Section 211.031, the jurisdiction of the child may be retained for the purpose of this chapter until he has attained the age of twenty-one years . . . ” In the case before us, the juvenile court of St. Louis County acquired jurisdiction over the person of the juvenile by the proceedings which culminated in the order of February 7, 1973. The court retained jurisdiction in this order and retained jurisdiction in its modification order of March 16, 1973. Thus, when J. D. H. was apprehended on October 1, 1973, in Jefferson County, he was under the continuing jurisdiction of the St. Louis County juvenile court, pursuant to that court’s orders and the authority of Sec. 211.041. Petitioner argues that Jefferson County has exclusive jurisdiction of the juvenile because he was apprehended in that county. Petitioner relies heavily on language in In re M. W., 504 S.W.2d 189 (Mo.App.1973), to the effect that jurisdiction vests immediately in the juvenile court of the county where the juvenile was apprehended and that jurisdiction cannot be divested by the action of the police in transporting the juvenile to another county. Counsel also cites State v. Adams, 485 S.W.2d 442 (Mo.App.1972) and In re Shaw, 449 S.W.2d "⅝0 (Mo.App.1969) to the same effect, to which could be added the decision of In re C. W., Jr., v. Murphy, 508 S.W.2d 520, decided April 9, 1974 by the Court of Appeals, St. Louis district. There is an important difference between those cases and the present case. None of the cases cited involved the situation where one juvenile court already had continuing jurisdiction over the juvenile at the time he was apprehended in another county. The language of the M. W., Adams, Shaw and C. W., Jr. cases, then, must be read in the context of the facts of those cases. In the case at bar, St. Louis County had already taken and retained jurisdiction under Sec. 211.041, which was not true of any of the cases relied on by counsel. Hence, at the time the juvenile was apprehended in Jefferson County he was under the continuing jurisdiction of St. Louis County and thus there was no jurisdiction available for Jefferson County to acquire. Petitioner says that Sec. 211.041 gives the juvenile court judge a right to retain only a very limited jurisdiction, a narrow discretion which is limited to the same subject matter or matters arising out of the same transaction . . . ” Petitioner relies on several cases to siipport this narrow construction of Sec. 211.041, State ex rel. Dzurian v. Hoester, 494 S. W.2d 67 (Mo. bancT973); In re Adoption of K, 417 S.W.2d 702 (Mo.App.1967); State ex rel. Grimstead v. Mueller, 361 Mo. 92, 233 S.W.2d 700 (banc 1950); and In re Sypolt’s Adoption, 230 S.W.2d 877 (Mo. App.1950). All of these cases involve the question of whether or not a juvenile court’s continuing jurisdiction extends to include jurisdiction to hear a subsequent adoption case. These cases hold that if a juvenile court first obtains jurisdiction on the basis of neglect of the child or termination of parental rights or a parent’s waiver of necessity to consent to future adoption, this jurisdiction does not continue to hear a different subject matter, namely, petition for adoption of the child. These cases do not preclude continuing jurisdiction in St. Louis County juvenile court in the case before us. Here the subsequent petition filed concerning petitioner does involve the same subject matter, i. e., subsequent acts of misconduct by the juvenile. Our construction of Sec. 211.041 accords with the purpose and philosophy of the juvenile court system as expressed in Sec. 211.011 that it is the purpose of the juvenile code “to facilitate the care, protection and discipline of children who come within the jurisdiction of the juvenile court.” In addition, “[t]he philosophical underpinning of the juvenile justice system is premised upon the belief that rehabilitation is more desirable than retribution, that retributive justice is less in the long-term interests of society than is corrective justice. Indeed, with respect to delinquency, it is the rhetoric of rehabilitation that serves as the sole justification for the independent existence of the juvenile justice system apart from the criminal justice system. See generally, Comment, Juvenile Court Waiver: The Questionable Validity of Existing Statutory Standards, 16 St.L.U.L.J. 604 (1972).” R. Habiger, Prosecution of Children in Missouri, 30 J.Mo.B. 11, n. 7 (1974). It should also be remembered that proceedings under the juvenile code are civil, not criminal. Thus, the emphasis of the juvenile code is on continuing care, protection and rehabilitation of the juvenile. “ . . . The Juvenile Act is rooted in the concept of parens patriae, that the state will supplant the natural parents when they fail in that role . . . ” In re F. C., 484 S.W.2d 21, 25 (Mo.App.1972). This parens patriae relationship exists between the child and the juvenile court. This parental role can best be served if one juvenile court continues the supervision and rehabilitation of a juvenile in subsequent proceedings under the juvenile code. Continuing jurisdiction by a juvenile court of subsequent juvenile proceedings also removes the possibility of conflicting court orders which arises if one court could order a juvenile to do something inconsistent with a prior order of another court of concurrent jurisdiction. As was pointed out in State ex rel. Dzurian v. Hoester, supra, 494 S.W.2d 1. c. 70, “ . . . it will not do to have a situation where two courts of equal rank have jurisdiction to issue orders which might conflict about the same child . . . ” It should be noted, too, that a juvenile court is not required to retain jurisdiction under Sec. 211.041. The fact that a juvenile court once acquires jurisdiction of a juvenile in a proceeding under Sec. 211.031 does not make that jurisdiction continuing for subsequent proceedings, unless the juvenile court so orders. While it is for the legislature, in its wisdom, to enact the laws in Missouri, we do observe that, except for the language in Sec. 211.031, about children “within the county”, Missouri’s juvenile code contains no venue provisions. In particular, it does not provide for venue or jurisdiction based on residence, although the code recognizes in its statement of purposes, Sec. 211.011, that the child’s own home is the location of preference for the care, guidance and control he is to receive conducive to his best welfare and that of the state. Even though a juvenile may be in need of care and treatment because of acts occurring outside the county of his residence and within some other county, in most cases it will be the county of his residence where his roots will be found — parents, school, church, friends and acquaintances — and where will be the greatest interest in bringing about his rehabilitation and improvement, if it can be accomplished. The legislature might therefore want to consider amendment of the juvenile code to include a child’s residence as one of the places where jurisdiction or venue can be fixed. We observe, further, that there are no provisions in Missouri’s juvenile code for transfer of a juvenile proceeding from one county to another, despite the desirability and practicality of allowing transfer of juvenile court jurisdiction, in certain circumstances, to another court within the state. Many juvenile codes in other states contain transfer provisions and the Missouri legislature might well consider enacting such provisions. In conclusion, we mention one other matter: the Jefferson County juvenile officer in this case relinquished custody of the juvenile to police officers of St. Louis County. While we do not question his good intentions, there is no authority in the juvenile code for a juvenile officer relinquishing custody of a juvenile to anyone but the child’s parents, guardian, or legal custodian, Sec. 211.141. In the absence of that sort of release, custody should have been retained in Jefferson County until the matter could be brought to the attention of the juvenile judge and by his order, custody released to the St. Louis County police for conveyance to the St. Louis County juvenile court. However, the release of custody by the Jefferson County juvenile officer does not render the jurisdiction and custody of the juvenile by St. Louis County unlawful. St. Louis County would have exclusive continuing jurisdiction of the juvenile even if he presently remained in the custody of Jefferson County and thus returning the juvenile to Jefferson County for proper relinquishment of custody would serve no purpose. Writ of habeas corpus denied. DONNELLY, C. J., and BARDGETT, HENLEY and FINCH, JJ., concur. MORGAN and HOLMAN, JJ., concur in result. . All statutory references are to RSMo 1969, V.A.M.S. . Mention should be made that in the M.W. case, supra, which was also habeas corpus, where the challenge was directed to the jurisdiction of the juvenile court of St. Louis County, there was some indication, not fully developed, that there had been a prior exercise of jurisdiction over the juvenile by the juvenile court of St. Louis City. The opinion of the court of appeals, St. Louis district, found it unnecessary to resolve the contentions as to whether such prior exercise of jurisdiction, if such there was, vested exclusive subsequent jurisdiction in the juvenile court of the city. Under the facts of that case the juvenile admittedly was apprehended and taken into custody in the city of St. Louis at the request of St. Louis County police for implication in a robbery occurring in St. Louis County. He was released by the St. Louis police to the St. Louis County police, who took him from St. Louis to the juvenile court in St. Louis County without any order of transfer from the juvenile court of the city. The court held these circumstances precluded St. Louis County from having jurisdiction. In the absence of any definite statement of facts in M.W. establishing a valid prior exercise of jurisdiction over the juvenile by the St. Louis City juvenile court, we do not regard the decision as being in conflict with views announced in the case at hand. . The Sypolt case was transferred to this court and decided in 237 S.W.2d 193 (1951). We held that the Greene County juvenile court had no jurisdiction in the adoption case, contrary to the result reached in the court of apj)eals decision, for the reason that the persons seeking to adopt did not reside in Greene County nor was the child in that county. . As an example of such a provision, see Uniform Laws Annotated, Vol. 9, Uniform Juvenile Court Act, Seo. 12, p. 412, which provides as follows: “Sec. 12 [Transfer to Another Juvenile Court Within the State] (a) If the child resides in a [county] of the state and the proceeding is commenced in a court of another [county], the court, on motion of a party or on its own motion made prior to final disposition, may transfer the proceeding to the county of the child’s residence for further action. Like transfer may be made if the residence of the child changes pending the proceeding. The proceeding shall be transferred if the child has been adjudicated delinquent or unruly and other proceedings involving the child are pending in the juvenile court of the [county] of his residence. (b) Certified copies of all legal and social documents and records pertaining to the case on file with the clerk of the court shall accompany the transfer. Commissioners’ Note This section places responsibility for care and supervision of a child with the court of the county of the child’s residence. This court is usually in a better position to deal effectively with the child’s welfare.”

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2024-08-24T03:29:51.129235

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STATE of Missouri, Respondent, v. Billy Joe GARRETT, Appellant. No. 9554. Missouri Court of Appeals, Springfield District. March 21, 1974. John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Spec. Asst. Atty. Gen., St. Louis, for respondent. Albert G. Tindall, Charleston, for appellant. BILLINGS, Judge. This appeal is another chapter in the continuing and seemingly never-ending saga of Billy Joe Garrett and his days in courts since his conviction for first degree robbery in New Madrid County in December of 1965 and sentencing as a habitual criminal on January 25, 1966. He now appeals from resentencing under the Second Offender Act, § 556.280, RSMo 1969, V.A.M.S. because the 50-year term he received is the same prison term originally imposed. We affirm. In order to view defendant’s contention in proper perspective it is necessary that we recount portions of previous proceedings, commencing with the original conviction, judgment and sentence. In the robbery trial the defendant, his brother Lonnie, and Sam Irby were jointly charged and tried for the crime. Prior convictions were alleged as to all three men and evidence was received by the court concerning the convictions. Following guilty verdicts the trial judge imposed sentences under what is commonly called the Habitual Criminal Act. The defendant was sentenced to a term of 50 years, Sam Irby received a 40-year sentence, and Lonnie Garrett was sentenced to a term of 30 years in the penitentiary. On their first appeal [State v. Garrett, 416 S.W.2d 116 (Mo.1967)] the Supreme Court concluded that the trial court had not made sufficient findings of record as to the applicability of the Second Offender Act and reversed and remanded the case for a resolution of that issue. On remand proper findings as to the applicability of the Second Offender Act were made by the judge and, after granting allocution, all three of the defendants were resentenced to the identical terms in prison initially imposed. In their second appeal [State v. Garrett, 435 S.W.2d 662 (Mo.1968)] the prior convictions considered by the trial court were enumerated by the appellate court and insofar as applicable to Billy Joe Garrett were as follows: 1952 Mississippi County, Missouri, conviction and three-year sentence for breaking jail; 1954 conviction and 18-month sentence in Louisiana for aggravated burglary; 1959 Louisiana conviction and sentence of life imprisonment for murder. The Supreme Court affirmed the judgment of the trial court. Following the denial of their second appeal the defendant, Lonnie and Irby filed their joint post-conviction motion under Rule 27.26, V.A.M.R. A common ground alleged by all three movants was that to each of them one of the prior convictions relied upon by the trial court in applying the Second Offender Act was constitutionally infirm under Burgett v. Texas, 389 U. S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), because they had not waived their right to counsel and were not represented by an attorney. Defendant made this claim as to the 1952 Mississippi County conviction, Lonnie as to a 1959 conviction and Irby as to a 1956 conviction. A special judge conducted an evidentiary hearing and denied their motion. In the third appeal [Garrett v. State, 459 S.W.2d 378 (Mo.1970)] the Missouri Supreme Court affirmed the denial of relief to the defendant and Irby by ruling as follows at page 380: “The insuperable difficulty with the claims of Billy Joe and Sam is that in the robbery case the state alleged numerous other felony convictions and these convictions with counsel were proved and found in the principal trial by the judge as well as upon this 27.26 proceeding and they are not challenged here In these circumstances as to Billy Joe and Sam, their cases having been tried in 1966 after the amendment of the habitual criminal act in 1959 . . . the prior offenses were not found by or submitted to the jury, they were separately found by the court and Burgett v. Texas has no application . . . ” The scenario now shifts to the harbor of the federal courts where many a prisoner, marooned in state judicial waters, has found safe refuge at the dock of habeas corpus. Defendant sought relief from his robbery conviction in the United States District Court, Eastern District, Southeastern Division [Garrett v. Swenson, 331 F. Supp. 1197 (1971)] but was again cast adrift when that court ruled the Missouri Supreme Court had adequately disposed of his contention concerning the 1952 Mississippi County conviction. From the United States Court of Appeals [Garrett v. Swen-son, 459 F.2d 464 (8th Cir. 1972)] the light of United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972) was focused on defendant’s plight. Thus illuminated, defendant’s case was remanded for an evidentiary hearing on the question of counsel or no counsel in the 1952 conviction. The Eighth Circuit said the reasoning of our Supreme Court and the District Court could not be squared by Tucker which held that a sentence tainted by a trial judge’s consideration of a constitutionally invalid conviction could not stand. The opinion noted that the question of counsel for defendant at his 1952 conviction was then being considered by a Missouri court in a coram nobis proceeding and if the facts were adequately developed in the state court the District Court could resolve the question on the state court’s record. From the briefs and transcript filed herein we learn that in September of 1972 the Mississippi County Circuit Court (another special judge presiding) determined in a coram nobis proceeding that defendant had been “improperly tried and sentenced on February 12, 1952, for jail breaking and ordered [defendant] released from that sentence.” In January of 1973 the state filed a motion to vacate the court’s judgment in 459 S.W.2d 378 as applicable to defendant. The court sustained the motion and ordered that pursuant to an order of the United States District Court the Circuit Court of New Madrid County set aside the defendant’s sentence and resen-tence him on his robbery conviction “ . . . [W]ithout any consideration being given to the prior conviction in 1952 for jail break by the Circuit Court of Mississippi County ... or any other constitutionally invalid prior conviction Another special judge, the Honorable Stanley A. Grimm, was appointed by the Supreme Court to conduct the resentencing hearing. Counsel was appointed for the defendant and pursuant to notice to all interested parties, Judge Grimm set aside the previous sentence, heard evidence, and by reason of the two prior valid convictions of defendant in Louisiana resentenced the defendant under the Second Offender Act and set his prison term at 50 years. Judge Grimm’s order gave the defendant credit for the jailtime and prison time previously served in connection with the robbery charge and correction. In arriving at the sentence and judgment Judge Grimm expressly stated and the judgment recites that his decision was made without any consideration being given to defendant’s conviction in Mississippi County in 1952. In view of the singular point presented by defendant’s appeal and the limited purpose of the order for resentencing, we do not deem it necessary to detail the evidence considered by Judge Grimm and contained in the transcript. Suffice it to say that the special judge gave the defendant and his counsel the widest latitude possible with no visible limits as to the scope of the hearing. By agreement the trial transcript and the transcript of his previous 27.26 motion were considered by the special judge. Defendant freely admitted his two prior felony convictions in Louisiana. The court explored the defendant’s background at length and in reply to the court’s question “Is there anything else that you would like to tell me that I should consider in determining what sentence I should give you?” the defendant replied: “Well, no, sir, I just figured I’ve had a fair and honest hearing and I think I’m just going to leave that up to you.” Again, “ . . . I think I have had a fair and honest hearing and that’s all I ask.” Defendant’s complaint in this appeal is that Judge Grimm was prejudiced by the fact that the set-aside Mississippi County conviction was mentioned several times throughout the two-day hearing and that this prejudice is evidenced by Judge Grimm sentencing him to 50 years — the same prison term that he originally received. “ . . . [T]he repetition of the exact sentence was not a coincidence but an abuse of discretion and tainted by consideration of evidence which should have been excluded from consideration” says the defendant. He argues that contrary to Judge Grimm’s express declaration that the 1952 conviction was not considered in arriving at the sentence, the special judge did take into consideration the invalid conviction. This conclusion arsies from the present sentence being for the same term of years as the original sentence in 1966. Defendant also notes that Judge Grimm did not credit him with the prison time served on the 1952 conviction and contends this failure on the part of the special judge was “unconscionable”. Defendant suggests that another special judge conduct his re-sentencing “to whom the invalid prior conviction is unknown or at least not a prominent part of the record.” We have carefully reviewed the transcript herein and do not agree with defendant’s contention that the 1952 conviction is “a prominent part of the record.” The 1952 conviction was only briefly referred to on five occasions. The first occurred when it was developed from the defendant that at the time of the original sentencing he had three prior convictions but that he no longer had the 1952 conviction. The second mention of the 1952 conviction was during the course of Judge Craig’s examination by the defendant when the judge was asked if he was aware the conviction had been set aside. The third reference was when defendant was examining his former trial attorney (Mr. Bock) concerning the orginal trial transcript and the fact that it contained information about the 1952 conviction. The next mention of the 1952 conviction was during the defendant’s relating his background to the court (the judge specifically stating “that offense had been thrown out so I’m not interested in that one at all. When did you have your first offense disregarding that particular one at Charleston?”). The last reference to the 1952 conviction took place when defendant’s attorney was inquiring of the defendant and the following occurred: “Q. Getting back to the Charleston incident back in 1952 — (interrupted) BY THE COURT: Well, Mr. Rost, I don’t really want to hear any testimony concerning that ’52 Charleston event. MR. ROST: I simply wanted to hear how much time he has done, Your Hon- or. BY THE COURT: Oh, O.K. To me that is out of the record and he is not convicted of that. MR. ROST: I felt if he was not constitutionally informed [sic] he may have done some time which the Court may want to consider. BY THE COURT: Well, do you have any objection to telling me that that Mr. Rost is asking you ? A. What was that, Mr. Rost ? Q. (By Mr. Rost) Did you do any time, did you serve any time in the penitentiary or in the Mississippi County jail for that offense? A. Oh, yes, sir, I did. For the offense in Charleston, Missouri ? Q. Yes? A. Yes, sir, I served three years in Jefferson City, Missouri. BY THE COURT: You served the full three years? A. No, sir, well, I stayed twenty-three months on the three years, which is good time. BY THE COURT: All right.” It is difficult for us to conceive how any judge could conduct defendant’s resentenc-ing without being made aware of the 1952 Mississippi County conviction. Its invalidity is the sole basis for resentencing. The Supreme Court order directs the judge conducting the resentencing proceeding to eliminate from consideration the “prior conviction in 1952 for jail break by the Circuit Court of Mississippi County The record in this case does not support the defendant’s assertion that Judge Grimm was biased and prejudiced against him and is completely barren of any facts giving rise to such a charge. As we have previously indicated the slight references to the 1952 conviction were no more or no less than the Supreme Court’s order authorizing the resentencing procedure. In any event, we hold the references to the Mississippi County conviction did not “taint” the proceedings below and form no basis for the allegations of bias and prejudice against Judge Grimm. The defendant had two valid prior convictions and the Second Offender Act was applicable to defendant’s resentencing. Judge Grimm made a judicial determination, based on evidence which included the original trial transcript, that defendant should receive a 50-year sentence. The statute under which defendant was prosecuted, § 560.135, RSMo 1969, V.A.M.S. provides: “Every person convicted of robbery in the first degree by means of a dangerous and deadly weapon shall suffer death, or be punished by imprisonment in the penitentiary for not less then five years . . . . ” The defendant’s sentence is within the limits prescribed by statute and as was held in State v. Vermillion, 486 S.W.2d 437 (Mo.1972) at p. 441. “ . . . a sentence within the limits prescribed by statute does not warrant an appellate court to interfere with it.” The judgment is affirmed. HOGAN, C. J., and STONE and TITUS, JJ., concur. . As near as we can determine from the record in this case and reported opinions this appeal marks the eleventh judicial proceeding involving the original sentencing. Court-appointed attorneys number at least seven; four different Missouri circuit judges have conducted various hearings; there have been three prior appeals to and a motion to vacate judgment filed directly in the Missouri Supreme Court; and, habeas corpus proceedings in a federal district court and an appeal to the federal court of appeals. . Defendant escaped from the Louisiana penitentiary and a detainer on behalf of the Louisiana authorities has been filed with Missouri. . The court ordered an evidentiary hearing to be held on Lonnie Garrett’s contention regarding a 1959 Mississippi County conviction. A special judge denied relief and he appealed to the Supreme Court. It was this appeal that resulted in the now famous case of Garrett v. State [481 S.W.2d 225 (Mo. banc 1972)] whereby the Missouri Court of Appeals acquired jurisdiction for the first time in appeals involving “offenses punishable by a sentence of death or life imprisonment”. Lonnie Garrett’s case was transferred to this court and his appeal denied in Garrett v. State, 503 S.W.2d 45 (Mo.App.1973). . Defendant was permitted to testify at length. In the main his testimony was directed towards his trial attorney (Mr. Bock), the prosecuting attorney (Mr. Hunter), the trial judge (Judge Ragland), and the special judge (Judge Craig), who denied his Rule 27.26 motion, and he called as witnesses all of these individuals. . A 1969 conviction and five-year sentence from Cole County for stabbing a fellow inmate at the penitentiary was revealed by defendant but not considered by the court as a “prior conviction” in defendant’s resentencing.

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STATE of Missouri, Plaintiff-Respondent, v. Joseph TAYLOR, Defendant-Appellant. No. 35291. Missouri Court of Appeals, St. Louis District, Division One. April 9, 1974. John C. Danforth, Atty. Gen., G. Michael O’Neal, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Neis C. Moss, Jr., Asst. Circuit Atty., St. Louis, Mo., William F. Arnet, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent. Charles D. Kitchen, Public Defender, John D. Bauer, Kent Fanning, James C. Jones, Asst. Public Defenders, St. Louis, for defendant-appellant. SIMEONE, Judge. Defendant-appellant, Joseph Taylor was charged, tried, found guilty by a jury and sentenced by the court to ten years in the department of corrections for selling a Schedule I controlled substance, heroin, in violation of Chapter 195, RSMo, V.A.M.S. He appeals. We affirm. The state’s case was based chiefly on the testimony of Officer William Robinson of the Narcotics Division. Trial was held February 14 and 15, 1973. On the morning of June 15, 1972, Sergeant Robert Boaz of the Metropolitan St. Louis Police Department, assigned to the Narcotics Division, together with Officer William Robinson and an unidentified woman informant drove to Boyle and Lin-dell Boulevards in the City of St. Louis. Sergeant Boaz who was Robinson’s supervisor met Robinson and a woman informant who was known to Boaz. Sergeant Boaz gave Officer Robinson a ten dollar bill and told him to go along with the informant to 4135 Westminster Avenue. The informant asserted that she knew the people at that address. While Sergeant Boaz waited in a vehicle, Officer Robinson and the informant proceeded to that address. When Officer Robinson and the informant arrived at the house, a four family flat, there were several persons in front of the house, including the defendant, Taylor, and one Willie Hamilton, known sometimes as Charlie or Billy. Officer Robinson was allowed to testify over objection to the following. When Robinson and the informant arrived at the house, the informant greeted the persons and especially Taylor and said, “Hey, baby, what’s up? How’s it going?” She said, “I came back like I said.” “I came to get my stuff.” Officer Robinson, Taylor, Hamilton and the informant were invited into the house, went in and proceeded back to the kitchen. Back in the kitchen, the informant said, “I came to get my stuff, man. I want to get my thing now.” Taylor asked, “How much do you want ?” And the woman replied, “I want two things.” Some conversation occurred between Robinson and Hamilton. Officer Robinson testified that “Mr. Hamilton was high and he was carrying on he was talking to me at which time he was telling me about this bad trip he was on.” Then Taylor said to Hamilton, “Man, go and get the stuff,” or “Will you go and get the stuff.” Hamilton left the kitchen and went down the hall. Taylor in turn left and went out the back door and out of sight. While Robinson and the woman informant were in the kitchen, one of the women who had been on the front proch as the two entered came into the kitchen, but did not say anything. Hamilton returned in a short time with two red capsules. The woman informant told him to give “it to him [Robinson] because he has the money.” Hamilton gave Robinson the capsules and Robinson in turn gave Hamilton the money. Taylor was “returning to the room” at that time. When Taylor returned to the room, he had a rolled up cloth which contained a spoon and an eyedropper with a needle. A capsule was given to the informant; it was put in a spoon and lit and cooked, and the informant “stuck the needle into her skin and put the solution into her body.” “In other words she shot up?” “Yes.” Then Officer Robinson testified, “Mr. Taylor shot up. He . . used a slot as a tourniquet and shot in his arm.” Officer Robinson gave Hamilton the ten dollar bill, and Hamilton gave him the “stuff.” On cross-examination Officer Robinson admitted that the informant made the offer to buy something, but that Officer Robinson received the capsules and handed the ten dollar bill to Hamilton. Officer Robinson was, at the time, a detective with the Narcotics Division and had been assigned to that division for approximately four or five months, but had spent a total of about seven to eight months in that Division. His specific duties were to work as a "narcotics undercover man.” His job was to purchase narcotics if he could. He had seen the informer only once before. Robinson had gone through a training period of some six weeks to identify narcotics and narcotic paraphernalia. He attended classes and had field training. As part of the training he would be taken to various locations where narcotics are known to be sold, was introduced to various persons and places and became acquainted with the terminology. He was introduced to various narcotic users and was familiar with symptoms of users, and during the course of training was shown various capsules. On July 13, 1972 a suppressed indictment was filed charging the defendant with the sale of heroin to William Robinson. On that same day Taylor walked into police headquarters and said that he heard the police were looking for him. It was at that time the defendant was arrested for the alleged incident on June 15. On redirect examination Sergeant Boaz was asked whether he specifically put out that defendant was wanted. His response was, “Well, we had a suppressed indictment for his arrest.” An objection was made to this as not responsive, and it was moved that the answer be stricken. The court overruled the objection and motion. Following the indictment, several motions were filed by counsel for defendant. One of the motions filed on August 18, 1972 was a motion for a bill of particulars. The motion moved the court for an order directing the State to give the names and addresses of the “persons to whom defendant is alleged to have sold the heroin. . ” and the “names and addresses of the persons who allegedly requested the defendant to sell the heroin.” The court overruled the motion. Subsequently on October 25, 1972, a substitute information in lieu of indictment was filed alleging a prior conviction and charging that Taylor unlawfully sold heroin to Robinson. During the trial a chemist testified that the substance in the capsules contained heroin. During the closing argument of the state, the assistant circuit attorney commented, “Some of this activity may make you sick. The problem is, it’s necessary. You just do not get the pusher off the street and if you would say, ‘Well, I’d like to see a kilo of heroin . . .’” This argument was objected to because of the inference to a “pusher.” “There’s no crime alleged as being a pusher and there’s no evidence of a pusher . . . It is improper closing argument and also no evidence in this trial as to what the Circuit Attorney’s arguing.” The court overruled the objection. At 11:57 a. m. the jury retired to deliberate. At 12:30 p. m. the jury went to lunch, and at 2:00 p. m., the jury was asked by the court how they stood numerically. The foreman replied, “A three-way split.” The court after stating that “as I understand it at this time you’re not numerically close to a verdict,” gave instruction No. 8 — a “hammer” instruction. From the very beginning, before and throughout the trial, defendant contended that he was entitled to be informed of the name and address of the woman informant because “this informant is the only witness in a position to amplify — cannot conject [sic] testimony as a governing witness and also that this informant was in fact the main and sole negotiator of the alleged sale of heroin involved . . . and the fact that unless the informant’s name and address is produced, it will deny me the possibility to prove up the defense of entrapment and also deny me by [my?] right under the Sixth Amendment to cross-examination.” On appeal, defendant makes several contentions: (1) The court erred in overruling the objection to (a) Sergeant Boaz’s reference to a suppressed indictment, (b) Officer Robinson’s testimony “in regards [sic] to the defendant carrying certain narcotics apparatus,” and (c) the reference to defendant “shooting up.” He contends these matters are irrelevant, immaterial and prejudicial because they evidence “other crimes;” (2) The court erred in overruling his request for the name and address of the woman informant because her information was relevant and helpful to the defense and was essential to a fair trial; (3) The court erred in allowing Officer Robinson to testify as to what the informant and Willie Hamilton said because the statements made by Robinson were hearsay and denied defendant the right of confrontation guaranteed by the Constitution; (4) The court erred in permitting Officer Robinson to testify regarding the meaning and interpretation of “drug terminology” because no proper foundation had been laid; (5) The court erred in overruling his objection in the state’s closing argument when the assistant circuit attorney made reference to “pusher” because there was no evidence in the case to warrant such a reference and it was highly prejudicial as inflaming the emotions of the jury; and (6) The court erred in giving Instruction No. 8 — the “hammer instruction.” As to the first point, defendant contends that the references by Officer Robinson to the fact that the defendant “shot up”— “used a slot as a tourniquet and shot in his arm” and carried certain “narcotic apparatus” does not tend to prove or disprove the crime charged (of “sale”) or any material fact pertaining to the issue of whether the defendant sold “narcotics.” He contends that this evidence was emotionally inflammatory which “could tip the scales of justice.” He contends that if the defendant had been charged with possession, the evidence of the possession of the apparatus would have been permissible, but when the charge is for “sale”, such evidence is irrelevant and prejudicial, because such testimony is not relevant to prove the commission of a sale. In effect he contends that evidence of the use of heroin and possession of “narcotic” apparatus is irrelevant and injects collateral issues in the case. The issue to be determined is whether the court erred in permitting testimony over objection that the defendant “possessed” certain “narcotic” paraphernalia and injected himself with a “narcotic” substance at the time of the sale for which the defendant was on trial. Or in other words —is the possession and use of drugs during or near the time a sale is made admissible when defendant is on trial for the sale of drugs. The well established general principle is that proof of the commission of separate offenses is not admissible unless such proof has some legitimate tendency to directly establish the defendant’s guilt of the charge for which he is on trial. Evidence of other crimes when not related to the cause on trial violates the defendant’s right to be tried for the offense for which he is charged. State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, 307 (banc 1954). There are numerous exceptions, however. Evidence of other crimes is competent to prove the specific crime charged (sale) when it tends to establish a common plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the proof of the other. The testimony of Officer Robinson that the defendant and the informant injected themselves with “narcotics” and that the defendant possessed “narcotic” paraphernalia tended to prove that the defendant had heroin in his possession, available for sale [See State v. Gortarez, 96 Ariz. 206, 393 P.2d 670, 672 (1964)] and that the substance sold was of a narcotic character. See also Overton v. State, 78 Nev. 198, 370 P.2d 677 (1962) where evidence of prior sales of heroin was probative to establish offense of possession. Furthermore, if the fact of other crimes may be regarded as part of the res gestae, then such evidence is admissible. The entire relevant facts may be regarded as part of the res gestae. State v. Shu-mate, 478 S.W.2d 328, 330-331 (Mo. 1972); State v. Sinovich, 329 Mo. 909, 46 S.W.2d 877 (1931); State v. Robb, 439 S.W.2d 510, 514 (Mo.1969); State v. Walker, 490 S.W.2d 332, 333 (Mo.App.1973) — evidence of gun, stolen license plates and syringe admissible in possession case. Under the peculiar facts of this case we believe that the evidence relating to the possession of drug paraphernalia by the defendant and the fact of use of narcotics by the defendant are so related to the transaction for which he is charged that the evidence was admissible to tend to prove that a sale was made. Second, the principal contention of appellant is that the court erred in overruling his request for the name and address of the informant because her information was relevant and helpful to the defense and was essential to a fair trial. He argues that the circumstances in this case warrant disclosure. Whether the identity of an informer must be disclosed at trial has posed a great dilemma for the courts. What is referred to as the informer’s privilege is in reality the privilege of the State to withhold the identity of persons who furnish information to officers charged with enforcement of the law. At one time in Missouri there was an unqualified right to withhold the identity of an informant. State v. Bailey, 320 Mo. 271, 8 S.W.2d 57 (1928). “It would be against public policy to compel a sheriff or other officer to disclose the identity of the person or persons who inform him of facts tending to show that a given person is guilty of felony. If information of this character cannot be given to an officer freely and without fear on the part of the informant that his part in the arrest and prosecution of one suspected of felony will be made public, the detection and prosecution of crime will be intolerably hampered and be defeated altogether in many instances.” Bailey, supra, 8 S.W.2d at 59. But the modern doctrine is expressed in Rbviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957) and McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967). The general principle is that there is a privilege to withhold the identity. The purpose of the privilege is the “furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.” Roviaro, supra, 353 U.S. at 59, 77 S.Ct. at 627. The purpose is not to protect the informer but to protect the public interest. Once the policy is made of full disclosure, especially in cases involving controlled substances or narcotics, the effectiveness of the informer is destroyed, or worse still — a dead man can tell no tale. But the privilege has its limitations. They arise from the fundamental requirements of fairness. “Where the disclosure of an informer’s identity ... is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.” Roviaro, supra, 353 U.S. at 60-61, 77 S.Ct. at 628. Hence, “[N]o fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” Roviaro, supra, 353 U.S. at 62, 77 S.Ct. at 628. Our Supreme Court has followed this policy. State v. Edwards, 317 S.W.2d 441 (Mo. banc 1958); State v. Yates, 442 S. W.2d 21 (Mo. 1969). See also Annot., 76 A.L.R.2d 275 (1961) and 1 L.Ed.2d 1999 (1957) , The decision whether the informant is essential to a fair determination of the issue in any given case is for the trial court in the first instance, and whether the defendant can have a fair trial without requiring disclosure is a matter resting in the discretion of the trial court. State v. Yates, supra, 442 S.W.2d at 25. Taking into consideration the circumstances of this case and the “flexible” standards as set forth in Roviaro, we believe that the trial court did not err in denying the request for disclosure. The “informer” who was present at the transaction was not the sole witness or participant, as in Roviaro, supra. As pointed out by Judge Sirica in City of Burlington, Vermont v. Westinghouse Electric Corp., 246 F.Supp. 839, 844 (D.C.1965), “The informer [in Roviaro] was the sole participant, other than the accused, in the transaction alleged. He was the only witness in a position to amplify or contradict the testimony of Government witnesses. Obviously, in order to prepare his defense it was necessary ... to obtain the identity of the informer. . . .” Some decisions have held that where the informant “participates” in the transaction the identity should be disclosed. See cases collected in Annot., 76 A.L.R.2d 262, 287 (1961); 8 Wigmore, Evidence (McNaughton rev. 1961), § 2374. But participation alone is not sufficient to require disclosure. Analysis of these decisions indicates that where there is participation plus other factors, such as mistaken identity, contradictory testimony, or a denial of the accusation, or where the informant is the sole witness, then for purposes of fairness the identity may be required- to be disclosed. But such is not the situation here. The informant was not the sole participant. There was no question about the identity of the defendant or the contents of the capsules or the defendant’s lack of knowledge of the contents of the capsules. Officer Robinson testified. He was under oath. He was subject to cross-examination. The trial judge was obviously satisfied and he exercised his discretion to respect the informer’s privilege. McCray v. Illinois, supra, 386 U.S. at 303, 87 S.Ct. 1056. Furthermore, reliance on the identity of the informer was not essential to establish guilt, Officer Robinson was present and testified as to the facts of transferring the money and accepting the capsules. He was an eye witness to the transaction. Under all the circumstances we cannot say that the identity of the informant was “essential to a fair determination” of the cause and that the trial court erred in denying disclosure. Next, defendant contends that the court erred in permitting Officer Robinson to testify as to what the informant and Willie Hamilton said because the statements made by Robinson were hearsay and denied defendant the right of confrontation. Officer Robinson testified that the informant stated, “I came to get my stuff I want to get my thing now.” The defendant said, “How much do you want,” and the informant replied, “I want my two things.” When Hamilton returned, the informant told the defendant to give “it to him [Robinson] because he has the money.” Hamilton gave Robinson the capsules and Robinson gave Hamilton the money. Taylor was present. Defendant contends these statements were inadmissible; the State is content to respond that “these statements occurred over the negotiations over the sale . . . and were therefore part of the res gestae,” relying on State v. Talbert, 454 S.W.2d 1 (Mo. 1970). The general rule is that statements or acts and conduct of third persons are admissible in evidence when they are so closely connected with the crime so that they constitute a part of the res gestae. While often referred to as the exception relating to excited utterances, the phrase is, in addition, employed to explain declarations giving meaning to an operative transaction such as a sale. McCormick, Evidence 586 (1954). The statements and conduct here preceding and at the time of the sale can be said to be so closely connected with the crime as to give meaning to the sale, and so as to constitute a part of the res gestae —that elucidates the main fact in issue— whether the sale of heroin actually took place. The rule is applicable to acts and conduct of third persons “ ‘which precede the offense immediately or by a short interval of time and which tend to elucidate a main fact in issue. . . State v. Talbert, supra at 3; Cf. State v. Wright, 319 Mo. 46, 4 S.W.2d 456, 458 (1928). Appellant next contends that the court erred in permitting Officer Robinson to testify regarding the meaning and interpretation of certain drug terminology because no proper foundation had been laid. We do not agree. The evidence shows that Robinson had gone through a training period, he attended classes, he did field work, he was familiar with symptoms of users and the trial court at one point indicated that it believed he was qualified. He had been assigned to the narcotics division for some months, and worked as an undercover agent. “ . . . [T]he determination of whether a witness is qualified to give particular testimony rests largely within the discretion of the trial court, although such determination is reviewable for abuse.” Davis v. Gatewood, 299 S.W.2d 504, 511 (Mo.1957); State v. Terry, 325 S.W.2d 1 (Mo.1959); State v. Menard, 331 S.W.2d 521 (Mo.1960); State v. Brown, 291 S.W. 2d 615 (Mo.1956); State v. Sims, 395 S. W.2d 445, 450 (Mo.1965); State v. Stevens, 467 S.W.2d 10, 23 (Mo. 1971). We find no abuse of discretion. The training and experience of Officer Robinson were sufficient for the court to determine in the first instance his qualifications. The weight was for the jury. Appellant complains that the court erred in denying objections to a reference to a “pusher” in the state’s closing argument because there was no evidence thereof to warrant such inference and was prejudicial and inflamed the emotions of the jury. Appellant candidly states that he “does not argue with accepted principles that such a determination is for the trial court’s sound excuse [exercise?] of discretion,” and “that our review is limited to determination of whether or not there has been an abuse of discretion.” Appellant further says that the court did not exclude the remark or tell the jury to disregard it. But no request was made to do so. It is true that it is a fundamental concept that an accused is entitled to a fair trial, and the duty of the prosecutor to see that he gets one. And when argument goes beyond the bounds so that it excites, inflames or appeals to prejudices, a new trial will be declared. State v. Tiedt, 357 Mo. 115, 206 S.W.2d 524, 526 (banc 1947). But the trial court has wide discretion in determining the latitude in per- mitting argument of counsel. State v. Hill, 328 S.W.2d 656 (Mo.1959), and the appellate court will not reverse unless there has been an abuse of such discretion. As long as the prosecutor stays within the record and its reasonable inferences his argument is legitimate. State v. Laster, 365 Mo. 1076, 293 S.W.2d 300, 306 (banc 1956). We do not believe the court abused its discretion. There was evidence to establish that the defendant had participated in the offense of selling a controlled substance and no further reference to “pusher” as far as the record shows was made. The principal case relied on by appellant, State v. Tiedt, supra, is clearly distinguishable. Appellant lastly complains that it was error to give Instruction Number 8, the hammer instruction. Defendant contends that this instruction was coercive and invaded the province of the jury. Instructions identical to Instruction No. 8 have been approved by the Supreme Court, State v. Jackson, 446 S.W.2d 627, 630 (Mo. 1969); State v. Morris, 484 S.W.2d 288, 290 (Mo.1972); State v. Corlew, 463 S.W. 2d 836, 840 (Mo. 1971), and by this court, State v. Cochrell, 492 S.W.2d 22, 27 (Mo. App.1973), McMillian, J. dissenting. We do not believe that the giving of this instruction under the circumstances was coercive or invaded the province of the jury. See MAI-CR 1.10, effective January 1, 1974. Cf. ABA Minimum Standards Relating to Trial by Jury, § J.4, pp. 146-147 (approved draft, 1968). We have reviewed the decisions cited by appellant and find them to be inapplicable, distinguishable or not dispositive of the issues raised in this proceeding. Therefore, finding no prejudicial error, the judgment is affirmed. DOWD, C. J., and WEIER, J., concur. . “Instruction No. 8. At this time, after you have been deliberating, I give you this additional instruction. It is desirable that there be a verdict in every case. It costs consideraable money and time and effort to try any lawsuit and the parties are entitled to have their rights determined once and for all in every case, and the 12 jurors chosen to try this case should be as well qualified to do so as any other 12 that might hereafter be chosen. Open and frank discussion by you in your jury room of the evidence in this case may aid you in agreeing upon the facts; however, no juror should ever agree to a verdiet that violates the instructions of the court, nor find as a fact that which under the evidence and his conscience he believes to be untrue, yet each of you should respect the opinions of your fellow jurors as you would have them respect yours, and in a spirit of tolerance and understanding endeavor to bring the deliberations of the whole jury to an agreement upon a verdict.” . It has been held that where the defense was that of mistaken identity, the identity of the informer must be disclosed. People v. Durazo, 52 Cal.2d 354, 340 P.2d 594 (1959), 76 A.L.R. 2d 257 (1961). . Appellant contends that the right to confrontation was violated by not disclosing the informant. This point can be disposed by Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967) and McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967). “Petitioner-also presents the contention here that he was unconstitutionally deprived of the right to confront a witness against him, because the State did not produce the informant to testify against Mm. This contention we consider absolutely devoid of merit.” Cooper v. California, 386 U.S. at 62, Note 2, 87 S.Ct. at 791. . See State v. Davis, 450 S.W.2d 168 (Mo. 1970). . See State v. Hubble, 494 S.W.2d 358 (Mo. App.1973). In that case analogous to the sitution here, the informer was present during a sale of stimulant drugs. The informer introduced two officers to the defendant. The informant did not testify. The officers identified the defendant in court. The officers gave defendant money for tablets. The Kansas City District held that the trial court “exercised proper discretion in not compelling disclosure of the informant’s identity.” 494 S.W.2d at 362. “The true issue is whether public policy requires preservation of the anonymity of the informer, or, whether ‘fundamental requirements of fairness’ compel disclosure as measured by the specific circumstances of this particular case. . . . All the circumstances in a particular case must be weighed and eval-uatert. . . As a practical matter, and rightfully so, determination thereof rests within the sound discretion of the trial court. ...” 494 S.W.2d at 361. . “The marvelous capacity of a Latin phrase to serve as a substitute for reasoning, and the confusion of thought inevitably accompanying the use of inaccurate terminology, are nowhere better illustrated than in the decisions dealing with the admissibility of evidence as ‘res gestae.’ ” Morgan, A Suggested Classification of Utterances Admissible as Res Gestae, 31 Yale L.J. 229 (1922).

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Albert WANT, Appellant, v. CENTURY SUPPLY COMPANY, Respondent. No. 34826. Missouri Court of Appeals, St. Louis District, Division One. April 9, 1974. Tremayne, Lay & Carr, Donald W. Paule, Clayton, for appellant. C. Marshall Friedman, Gray, Friedman & Ritter, St. Louis, for respondent. CLEMENS, Judge. The trial court dismissed plaintiff’s petition with prejudice upon defendant’s motion that the petition did not state a claim on which relief could be granted and recovery was barred by the statute of frauds. Plaintiff appealed to the Supreme Court of Missouri but the case was transferred here for lack of jurisdiction. The first question before us is whether plaintiff’s petition showed his right to recover on an alleged oral contract was barred by the Statute of Frauds, § 432.010, RSMo. 1969, V.A.M.S., declaring in pertinent part: “No action shall be brought . . upon any agreement that is not to be performed within one year from the making thereof, unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith . . .” Plaintiff’s petition alleged in substance that the parties agreed plaintiff was to work for defendant to obtain for defendant prior customers of plaintiff; that plaintiff would have “as long as he wanted,” “whatever time [was] necessary . . . regardless of the length of time necessary,” and “no deadline was placed thereon”; that plaintiff would advance costs himself, and “when plaintiff succeeded in said efforts” he would get a five per cent commission on the business he brought defendant; that a notice by defendant proclaimed to plaintiff’s business associates plaintiff was “now affiliated with defendant”; that plaintiff performed his obligations for seven months, brought to defendant a monthly average of $10,000 in business and spent $3,600 in expenses; that after seven months defendant discharged plaintiff without good cause. Plaintiff prayed for an accounting from the date of employment to the filing of petition for a five per cent commission on all business obtained from plaintiff’s geographic sales area for the same period of time and “a lump sum representing future commissions,” to be held in constructive trust; and for such other and further relief as to the court might seem just and proper. We find the trial court erred in dismissing the petition on the ground it showed plaintiff’s claim was barred by the Statute of Frauds. The cases of Kansas City Stock Yards Co. v. A. Reich & Sons, Inc., 250 S.W.2d 692 (Mo.1952), Fein v. Schwartz, 404 S.W.2d 210 [12-14] (Mo. App.1966) and Murphy v. Buschman-Jen-nings, Inc., 382 S.W.2d 29 [5-6] (Mo.App. 1964) hold, in effect, the possibility that a contract may be performed within one year is sufficient to avoid the statute of frauds. The alleged oral contract called on plaintiff to work for defendant to obtain plaintiffs former business associates as customers of defendant. It does not appear from the petition itself that plaintiff could not fully perform within one year. It follows that the plaintiff’s petition should not have been dismissed on that ground. To the contrary, we determine the petition did state facts warranting relief. Giving plaintiff’s petition a liberal construction, as we must, we need not construe it simply as an action for damages arising from a breach of contract. Instead, the petition may properly be construed as an action in quantum meruit for damages arising from the termination of an agency. As will be shown, a principal’s rightful termination of agency may, under certain circumstances, subject the principal to damages suffered by his agent. Agreements between principal and agent for an indefinite time generally may be terminated at the will of either party. Superior Concrete Accessories v. Merle E. Kemper Co., 284 S.W.2d 482 [16] (Mo. 1955). As in Red-E-Gas Co. v. Meadows, 360 S.W.2d 236 [7] (Mo.App.1962), the agreement between plaintiff and defendant was “for an indefinite period of time, its duration was not fixed expressly or impliedly, and its expiration did not depend on the completion of a given undertaking.” The agreement was therefore terminable at the will of either party but there is a limitation on the power to terminate an agency. This limitation on the right to terminate an agency was spelled out in the oft-cited case of Beebe v. Columbia Axle Co., 233 Mo.App. 212, 117 S.W.2d 624 [4] (1938) where defendant discharged plaintiff as its sales agent. The court said: “The limitation is that, in any case of an indefinite agency where it is revoked by the principal, if it appears that the agent, induced by his appointment has in good faith incurred expense and devoted time and labor in the matter of the agency without having had a sufficient opportunity to recoup such from the undertaking, the principal will be required to compensate him in that behalf; for the law will not permit one thus to deprive another of value without awarding just compensation. The just principle acted upon by the courts in the circumstances suggested requires no more than that, in every instance, the agent shall be afforded a reasonable opportunity to avail himself of the primary expenditures and efforts put forth to the end of executing the authority conferred upon him and that, if such opportunity is denied him, the principal shall compensate him accordingly.” In Glover v. Henderson, 120 Mo. 367, 25 S.W. 175 (1894) the defendant discharged plaintiff, a salesman, who sued and recovered the value of services and expenses. In affirming plaintiff’s judgment the court ruled: “The first question is whether this action is quantum meruit, for services rendered and reasonable expenses incurred, as claimed by the plaintiff, or whether it is an action for damages for breach of contract . . . The contract in question was one of agency, so that we are brought to the question whether defendant, having revoked the agency, is liable to the plaintiff for the value of services rendered and expenses incurred up to the date of revocation . . . But the question of the liability of the principal to the agent for services rendered is another and a different thing from the power, or even right, to terminate the agency.” Also pertinent to our case is Gibbs v. Bardahl Oil Company, 331 S.W.2d 614 (Mo.1960), where the parties entered a sales distributor agreement expressly terminable by either party on thirty days’ notice. While plaintiff was in the process of building up a sales organization defendant discharged him. In upholding plaintiffs claim for the reasonable value of his services, the court followed Glover and Gibbs supra, and ruled: “Respondent’s action is not an action for damages for breach of any contract by untimely cancellation. The cancellation of the contract by written notice is admitted and the right of cancellation is fully conceded. . . .We cannot construe the provisions of the agreement with reference to termination as necessarily implying that upon the termination of the distributorship under the circumstances here shown the appellant could retain and appropriate without liability that portion of respondent’s investment of labor and expenses which respondent had not had a reasonable opportunity to recoup by way of commissions.” So, plaintiff’s petition did state facts which if proven will warrant relief. We reverse the judgment dismissing plaintiff’s petition and remand the cause with directions to grant plaintiff leave to amend his petition. WEIER, Acting P. J., McMILLIAN, J., and JOHN M. CAVE, Special Judge, concur. . This opinion is not to be construed as holding plaintiff may recover “a lump sum representing future commissions.”

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STATE of Missouri, Respondent, v. William NANCE, Appellant. No. 34747. Missouri Court of Appeals, St. Louis District, Division One. April 9, 1974. Madigan, Hadican & Maloney, St. Louis, for appellant. John Danforth, Atty. Gen., G. Michael O’Neal, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Thomas C. Muldoon, St. Louis, for respondent. KELLY, Judge. Appellant was convicted of the offense of assault with intent to kill with malice aforethought, Sec. 559.180 RSMo 1969, V. A.M.S., and, the trial court having determined that he had previously been convicted of the offense of robbery in the first degree and was, therefore, subject to the provisions of Sec. 556.280 RSMo 1969, V. A.M.S., more commonly known as The Habitual Criminal Act, reserved sentencing to the Court until the jury returned its verdict finding appellant guilty of the charge of assault with intent to kill with malice aforethought. The Court then assessed defendant’s sentence at 40 years in the Missouri Department of Corrections. A motion for new trial was filed, heard and overruled; allocution was granted and appellant was sentenced in accordance with the verdict of the jury and the sentence assessed by the trial judge. This appeal followed. On appeal two points are presented, both attacking instructions read to the jury by the court. The first point is that the State’s verdict-directing instruction, Instruction No. 2, was prejudicially erroneous because it ignored the issue of self-defense in the case. The second point is that the self-defense instruction read to the jury by the trial court is prejudicial because it does not inform the jury that the burden of proof on this issue is upon the State. We conclude that there is no merit to either of these contentions and affirm the judgment of the trial court. Appellant does not attack the sufficiency of the evidence to support his conviction. A short statement of the relevant facts is therefore sufficient for our purposes in considering the errors alleged. At sometime between 1:00 a. m. and 3:05 a. m. on the morning of April 18, 1971, in the City of St. Louis, Missouri, and in the vicinity of 4911 Natural Bridge Avenue, Gary Maufas, an off-duty Metropolitan St. Louis Police officer, was driving an automobile with a fellow police officer, Jerome Johnson, riding as a passenger. Both officers were on vacation, had been out together that evening for some “lounge hopping,” and Maufas was driving Johnson home. When the officers arrived in the 4900 block of Natural Bridge Avenue and were proceeding westwardly past the Embassy Hall at 4911 Natural Bridge Avenue, Maufas observed a man in front of a crowd gathered outside the hall “flourishing a weapon.” Maufas stopped the car he was driving, double-parked it, and alighted from the driver’s side of the car and approached the man with the gun. Maufas was in civilian clothes at the time and so was Johnson. As Maufas approached the armed man he pulled his wallet out of his pocket and exposed his badge to identify himself as a policeman, announced that he was a policeman, and almost immediately thereafter he was shot by the man, subsequently identified as the appellant. Mau-fas suffered four gunshot wounds: one in the stomach, one in the left arm, one in the left hip or leg, and one in the lower back. Appellant testified that he was wearing a watchman’s uniform and was on duty as a security guard at a dance being held in the Hall; that he did not know Maufas and Johnson were policemen and that the altercation erupted when he, the appellant, asked them to move their double-parked car so that a patron of the dance could leave. Appellant further testified that he turned his back, started to walk away, and Maufas started towards him. An exchange of words followed, and as appellant proceeded to walk towards the sidewalk he heard a friend call out that Maufas had a gun. Appellant turned, observed a “.38 nickel plated chrome revolver” in Maufas’ hand, and he then pulled his gun out of his holster and shot Maufas. There was conflict in the testimony, but this was resolved by the jury in their verdict, adversely to appellant’s theory of the case, to-wit: accident and self-defense. Appellant’s argument with respect to Instruction No. 2, the State’s verdict director, is that it is prejudicially erroneous because it ignores the self-defense issue, does not refer to the self-defense instruction given, Instruction No. 3, and does not require the jury to find any fact negativing that defense. If appellant were correct in his argument and the State’s verdict-director ignored the self-defense issue, the trial court would have committed error which would not be cured by submitting a separate instruction on the self-defense issue. State v. Clary, 350 S.W.2d 809, 813 [5] (Mo. 1961). However, as in State v. Clary, supra, the State’s verdict director here defined “malice” as “the intentional doing of a wrongful act without just cause or excuse” (emphasis supplied) and that has been held sufficient. Appellant relies on State v. Winn, 324 S.W.2d 637 (Mo. 1959), but that case affords him no succor here. A careful reading of Winn demonstrates that the verdict director — Instruction No. 2 — submitting assault with intent to kill with malice aforethought contained similar verbiage to that defining malice in this case and was approved. However, the verdict directing instruction on the lesser included offense of assault with intent to kill without malice — of which lesser included offense Winn was convicted — did not contain a definition of “malice” and did not negate the self-defense in the case. It was therefore, the verdict director submitting the lesser included offense which was held prejudically erroneous and brought about the remand. We rule this point against appellant. Appellant’s second and final point is also meritless. He relies on State v. Robinson, 255 S.W.2d 798 (Mo.1953); however, the portion of the Robinson decision upon which appellant relies was subsequently held to be dicta only and not representative of Missouri law in State v. Dill, 282 S.W.2d 456, 460 (Mo.1955). Here, Instruction No. 5, announced to the jury that the burden of proof was on the state to prove beyond a reasonable doubt the guilt of the appellant. Instruction No. 2, the state’s verdict director, also instructed the jury that to find the appellant guilty they must believe that the evidence had proved his guilt beyond a reasonable doubt. The other cases relied upon by appellant can also be distinguished because in each specific language placing the burden of proof on the issue of self-defense was placed squarely on the defendant. State v. Tindall, 496 S.W.2d 267 (Mo. App.1973) is in point and, we conclude, correctly ruled this point in accord with Missouri law as it was prior to January 1, 1974, when the new MAI-CR became effective. The instruction in Tindall was identical to the self-defense instruction in this case, and there, as here, the appellant contended that he was prejudicially required to carry the burden of proof on the self-defense issue. In Tindall, the court, 496 S.W.2d l.c. 271, after reiterating that it has been a long-standing principle in the law of this state that instructions are to be considered together, and that this principle has application to self-defense submissions as well, said: “The law also continues to be that because a jury is deemed to read and understand the instructions as a single charge, an instruction — such as Instruction No. 8 (the burden of proof instruction)— which requires a finding of guilt beyond a reasonable doubt, sufficiently submits the state’s burden on the issue of self-defense as well because, 'after all, the burden is merely a part of the general burden of the state to prove defendant’s guilt beyond a reasonable doubt.’ ” This was the case here too, and the jury, reading the instructions together, would necessarily conclude that it was the burden of the state to prove appellant’s guilt beyond a reasonable doubt, which would necessarily include proving beyond a reasonable doubt that the appellant was not acting in self-defense when he committed the offense. We also rule this point against appellant. We have examined the record pursuant to Rule 28.02 V.A.M.R. with respect to the substitute information in lieu of indictment, verdict, judgment, and sentence, and find them to be in proper form. We therefore affirm the judgment of the trial court. DOWD, C. J., and SIMEONE, J., concur. . Among the cases relied on by appellant which are distinguishable are: State v. Robinson, supra; State v. Malone, 327 Mo. 1217, 39 S.W.2d 786 (1931) ; State v. Minnis, 486 S.W.2d 280 (Mo.1972) ; and State v. Ford, 491 S.W.2d 540 (Mo.1973). . However, see MAI-CR 2.40 for the appropriate instruction subsequent to January 1, 1974.

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In the Interest of C. W., Jr., a child under 17 years of age, by his next friend, Donna J. Johnson, Plaintiff-Appellant, v. William J. MURPHY, Juvenile Officer of the Juvenile Court of the City of St. Louis, Defendant-Respondent. No. 35206. Missouri Court of Appeals, St. Louis District, Division Two. April 9, 1974. Charles W. Bobinette, Legal Aid Society, National Juvenile Law Center, St. Louis University of Law, St. Louis, for plaintiff-appellant. Robert M. Kaiser, David B. Agnew, St. Louis, for defendant-respondent. GUNN, Judge. C. W. Jr., a twelve-year old boy, by next friend appeals a judgment of the Juvenile Division of the St. Louis Circuit Court committing him to the Missouri Division of Mental Health for institutional placement. Jurisdictional issues and questions regarding procedures in obtaining waivers of rights and statements of a juvenile are involved. On October 28, 1972, the body of Bernice Gee was found in her St. Louis apartment. She had been fatally stabbed with a knife and her apartment had been burglarized and set afire. In their investigation of the crime, the St. Louis police found that C. W., Jr. and his ten year old brother had been in Bernice Gee’s apartment building on the day of the crime visiting their grandfather, who also lived in the apartment building. The St. Louis police questioned C. W., Jr. and his brother at the grandfather’s apartment about details of the crime and even checked C. W., Jr.’s hair to determine if there were paint particles present which would match the paint at Mrs. Gee’s apartment. The police had-reason to believe that entry to Mrs. Gee’s apartment had been gained through a small transom aperture; that only a small person or child could have entered the apartment through the transom. A police record check was made by the St. Louis police with the University City police (C. W., Jr.’s home police department), and it was determined that C. W., Jr. had previously been taken into custody for burglary, assault and arson. On October 31, 1972, St. Louis police went to C. W., Jr.’s St. Louis County home in University City and requested C. W., Jr. and his brother to accompany them to St. Louis police headquarters to be interviewed for the purpose of obtaining information about the crime. The mother and grandfather accompanied them to the St. Louis police station. The St. Louis police said they merely asked the children to go with them. C. W., Jr.’s mother and grandfather indicated that there was no choice other than their going to the St. Louis police station. At that time, C. W., Jr. was a suspect of the crime along with other persons. At the police station, police officers interrogated C. W., Jr. and his brother alone in separate interrogation rooms. When conflicts in the two brothers’ stories occurred, the police announced to C. W., Jr.’s mother that the youth could have been involved in the crime and asked whether the mother would consent to a polygraph test for her son and influence him to make a statement. C. W., Jr. then admitted to his mother that he had committed the crime. The police then gave C. W., Jr. his Miranda warning rights, had him sign a waiver of his constitutional rights and took a complete taped statement. Finally, after the statement was completed, the police took C. W., Jr. to the St. Louis Juvenile Court. He was again advised of his constitutional rights by a deputy juvenile officer “in a very careful manner”, and a waiver of those rights was signed by C. W., Jr. and another confession obtained. Later, application was made to the St. Louis Juvenile Court for authority to fingerprint C. W., Jr., as prints found at the scene of the crime indicated they could be those of a juvenile. The request was granted and C. W., Jr.’s prints were taken without counsel present and found to match those taken from Mrs. Gee’s apartment. There are additional facts relating to C. W., Jr’s mental capacity. C. W., Jr. is retarded — intellectually handicapped. Although twelve years old, his mental age was that of an eight year old with a 2.2 grade level reading ability. On October 31, 1972, shortly prior to his giving his statement and signing his waiver of rights, C. W., Jr. had taken his prescribed dosage of phenobarbital and dilantin to control his behavior and epileptic seizures caused by brain damage occurring at an early age through lead poisoning. Dr. Eugene Kis-sling, Chief of the St. Louis Juvenile Court Diagnostic Treatment Center, tested the emotional and intellectual profile of C. W., Jr. and concluded that he would not have been able to understand the constitutional rights which he waived; that C. W., Jr. would only understand the waiver if explained using relatively concrete terms and requiring C. W., Jr. to express in his own words what he understood the terms to be. C. W., Jr.’s mother testified at the time she observed her son sign the waiver, she was emotionally upset and crying over the nightmare developing. The juvenile officer of the St. Louis Juvenile Court filed a petition requesting the St. Louis Juvenile Court to exercise jurisdiction over C. W., Jr. Pretrial motions to dismiss the petition on the grounds of lack of jurisdiction and motions to suppress the confession and fingerprint evidence were filed on behalf of C. W., Jr. The motions were denied, and the St. Louis Juvenile Court found C. W., Jr. guilty of murder in the first degree, burglary and arson and ordered him committed to the Missouri Division of Mental Health for appropriate institutional placement. Counsel for C. W., Jr. asserts that the Juvenile Division of the Circuit Court of the City of St. Louis was without jurisdiction; that the confession and the waiver of rights signed by C. W., Jr. are invalid. They further argue that the jurisdiction of the matter lies with the Juvenile Court of St. Louis County, and for that purpose C. W., Jr. and his mother entered into a consent decree with the Juvenile Court of St. Louis County to grant jurisdiction in that court. We have serious doubt whether C. W., Jr. under the totality of circumstances could or did understand the waiver of his constitutional rights which he signed. See In Re M. C., 504 S.W.2d 641 (Mo.App. 1974) and State v. White, 494 S.W.2d 687 (Mo.App.1973). But we need not reach that issue on our determination of the case. We hold that under the circumstances of this case the St. Louis Juvenile Court was without jurisdiction; that proper jurisdiction would lie in the St. Louis County Juvenile Court. In a recent decision of this court, In Re M. W., 504 S.W.2d 189 (Mo.App.1973), we held that “the obligation of [the] police upon taking a juvenile into custody is to take him ‘immediately and directly’ before the juvenile court which acquires jurisdiction ‘from the time the child is taken into custody.’ ” (l.c. 192) We held in In Re M. W., supra, that the jurisdiction vested in the juvenile court of the county where the juvenile was apprehended and at the immediate moment of apprehension. In In Re M. W., supra, the juvenile was charged with participating in a robbery in St. Louis County. St. Louis police apprehended the minor at his home in the City of St. Louis, and he was turned over to a St. Louis County municipal police department which transported him to St. Louis County. We said (l.c. 192) : We also pointed out In In Re M. W. that it was not the function of police officers to determine which juvenile court they wish to have process the child. “ * * * [U]nder the Juvenile Code, the place of the commission of an offense has no jurisdictional significance insofar as venue is concerned, as it does in criminal proceedings. (Citing cases.) There is, therefore, no need for transporting a juvenile from the jurisdiction in which he is apprehended into another jurisdiction where his alleged misconduct occurred. “The purpose of the Juvenile Code is to ‘Facilitate the care, protection and discipline of children who come within the jurisdiction of the juvenile court.’ R.S.Mo. 211.011. This purpose does not require that a child be transported from his home county to the county of the crime. It is more probable that 'care, protection and discipline’ can be effectuated in the juvenile’s home county than in some distant county.” (l.c. 192) See also State ex rel. R. A. P. v. Barker, 497 S.W.2d 838 (Mo.App.1973), that jurisdiction of the juvenile court reposes in the county where the child is found or resides, and the situs of the crime is not controlling. In State v. Arbeiter, 408 S.W.2d 26, 30 (Mo. 1966), it was held that under Section 211.061 R.S.Mo.1969, V.A.M.S., a police officer taking a child into custody for an offense was required to take him immediately and directly to the juvenile court or juvenile officer acting for him. And in Arbeiter, supra, the court in quoting with approval from State v. Shaw, 93 Ariz. 40, 378 P.2d 487, said, l.c. 408 S.W.2d 30: “The need for special treatment begins at the instant the juvenile is contacted by [the] peace officers.” The need for special treatment of the juvenile commencing with his first encounter or meeting with police officer was recently affirmed in In Re K. W. B., 500 S.W.2d 275, 283 (Mo.App.1973), and In Re F. G, 484 S.W.2d 21, 26 (Mo.App.1972). Thus, piecing the existing law together and giving the required liberal construction to the Juvenile Code, State v. Arbeiter, supra, we find in this case that the St. Louis Juvenile Court was without jurisdiction over C. W., Jr. At the time the police made contact with him at his home in University City, St. Louis County, Missouri, the requirements of Section 211.031 R.S.Mo.1969, V. A.M.S. required him to be taken to the St. Louis County Juvenile Court rather than to a St. Louis City Police interrogation room for questioning until the charges could be “nailed down”. The respondent here says that C. W., Jr. was not considered a “prime” suspect but was a suspect no more nor no less than other suspects. We know of no nuances of shades of differences in describing the type of suspect a juvenile should be before the application of the Juvenile Code takes effect. While In Re M. W., supra, spoke of taking a juvenile into custody or apprehending the minor, applying the language of State v. Arbeiter, supra, In Re K. W. B., supra, and In Re F. C., supra, and giving liberal application to the Juvenile Code; the St. Louis police should have at the moment of contact with their suspect, C. W., Jr., at his home in University City advised him and his mother of his constitutional rights and particularly advised him so that under the totality of the circumstances that C. W., Jr. and his mother would know that by removing him from his home and transporting him to the City of St. Louis, the possibility existed that C. W., Jr. would be waiving his statutory right to the jurisdiction of the St. Louis County Juvenile Court. When the St. Louis police officers requested C. W., Jr. to accompany them to St. Louis from C. W., Jr.’s St. Louis County home, the police officers were required to give him additional and special treatment, meaning that they were required to take him to the St. Louis County Juvenile Court, and, if it can be assumed that he could understand, C. W., Jr. should have at least been advised that by leaving St. Louis County to go into St. Louis he could be waiving the jurisdiction of the St. Louis County Juvenile Court. The St. Louis police knew that C. W., Jr. had previously been taken into custody in St. Louis County for similar offenses as in this case; they also had reason to suspect C. W., Jr. of committing the crime. The possibility existed that interrogation of C. W., Jr. would reveal that he was involved in the commission of the offense, and in view of the need for special treatment of juveniles with the attendant possible waiver of jurisdiction, C. W., Jr. and his mother should have been advised of that possibility. Failure to do so was error, and we find that the St. Louis Juvenile Court was without jurisdiction in this case. Under the circumstances of this case, it cannot be said that C. W., Jr. was “found” within the territorial jurisdiction of the City of St. Louis and the manner in which he was taken to St. Louis is inimical to the holding of In Re M. W., supra. Jurisdiction of C. W., Jr. would properly be within the St. Louis County Juvenile Court. The order, judgment and decree of the St. Louis Juvenile Court is therefore reversed. SMITH, P. J., and CLEMENS, J., concur.

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ALLGEIER, MARTIN AND ASSOCIATES, Plaintiff-Appellant, v. Tom D. ASHMORE et al., Defendants-Respondents. No. 9491. Missouri Court of Appeals, Springfield District. April 5, 1974. L. Thomas Elliston, Myers, Webster, Perry & Elliston, Webb City, for plaintiff-appellant. No appearance for defendants-respondents. PER CURIAM: The sole named plaintiff in this cause is “Allgeier, Martin and Associates.” Plaintiff’s petition commences: “Comes now the Plaintiff and for its cause of action states: 1. That Plaintiff is a partnership .” The balance of this pleading, in two alternative counts, prayed for a money judgment against one corporation and three individuals (Tom, Philip and Michael Ashmore) for the reasonable value of “work, labor and services” rendered by plaintiff at the request of defendants. Sheriffs’ returns to issued summons and alias summons attest that service was effected on the corporation and upon Tom and Philip Ashmore; a non est return was filed to the summons issued for Michael Ashmore. Under date of December 3, 1970, the Circuit Court of Jasper County entered a default judgment against the corporation and Tom Ashmore. The judgment correctly stated that Michael Ash-more had not been served with process; it erroneously declared that Philip had not been served and ordered “that this case remain on the active docket pending the service of process on these two defendants.” On February 3, 1972, Tom Ash-more filed “Motion to Set Aside Default Judgment” which was sustained on February 5, 1973. Thereafter, on February 13, 1973, “Allgeier, Martin and Associates, the above named plaintiff,” filed a notice of appeal “from the order and Judgment entered in this action on the Sth day of February 1973, setting aside the default judgment.” Whether the court nisi erred vel non in setting aside the default judgment as asserted in the points raised by appellant, need not be discussed or decided, for albeit no one except us has raised the subject, the partnership cannot recover in any event and all involved should be spared the effort and cost of prolonging litigation that cannot legally survive. Rule 79.04, V.A. M.R. Missouri follows the common law or aggregate theory of partnership [Griffin v. Doss, 411 S.W.2d 649, 651 (Mo. App.1967)] rather than the entity theory. Ward v. State Farmers Mutual Tornado Ins. Co. of Mo., 441 S.W.2d 1, 4 [3] (Mo. 1969). The Uniform Partnership Law (Ch. 358 RSMo 1969, V.A.M.S.) did not transform a partnership into a separate or juristic entity [McKinney v. Truck Insurance Exchange, 324 S.W.2d 773, 775 [1] (Mo.App.1959)] and, generally, all partners are necessary parties-plaintiff in actions to enforce an obligation due the partnership. Wittels v. Dubinsky, 343 S.W.2d 644, 645 [1] (Mo.App.1961). Absent statutory authority, a partnership cannot sue in the firm name and a judgment rendered for a partnership so suing will be reversed on appeal [Windisch v. Farrow, 159 S.W. 2d 392, 394 [3] (Mo.App.1942)] on the principle that a partnership has no legal existence apart from its members, but is a mere ideal entity. Davison v. Farr, 273 S. W.2d 500, 503 [2] (Mo.App.1954). To augment the confusion, in its order of February 5, 1973, the trial court not only set aside the default judgment but also granted defendants leave to file an answer and counterclaim or cross bill. Just as plaintiff may not maintain this suit in the partnership name, so too “in a suit [or counterclaim] against a partnership in its firm name only, there is no legal entity before the court against which lawful judgment may be rendered, constitutes a fatal defect not waived by failure to object, and a judgment against the partnership in its firm name alone is void.” Davison v. Farr, supra, 273 SW.2d at 503 [3], and cases there cited. Cf. Barclay Investment Corporation v. Lamkin, 408 S.W. 2d 168, 171 (Mo.App.1966). The situation presented is one in which plaintiff, by default or otherwise, cannot secure a valid judgment against the defendants or any of them, and where the defendants, singularly or collectively, cannot obtain a valid judgment against the plaintiff via a counterclaim or otherwise. In fine, the parties are but caponized litigants whose crowings will gain them neither success nor posterity. We have no choice but to direct the judgment which the trial court should have entered (Rule 84.14), and that is to dismiss the cause in its entirety. Therefore, the order and judgment appealed from is reversed and the cause is remanded with directions to enter a judgment dismissing the cause. All concur.

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Hager ODOM, Plaintiff-Appellant, v. Donald GRAY et al., Defendants-Appellants. Supreme Court of Tennessee. March 18, 1974. Hager Odom, pro se, Wild & Harrison, Chattanooga, for plaintiff-appellant. Goins, Gammon, Baker & Robinson, Spears, Moore, Rebman & Williams, Joe Timberlake, Chattanooga, for defendants-appellants. OPINION PER CURIAM. Certiorari was granted in this case on one point only, to wit: Can punitive damages or “smart” money be awarded against joint or multiple defendants when the financial worth of only one defendant is introduced into the evidence ? The factual allegations in the complaint were found in favor of the plaintiff by the jury, approved by the trial judge, and concurred in by the Court of Appeals, and from a review of the voluminous record, we agree that the record supports that finding of facts. There are two lines of authority on this question, generally referred to as the majority rule and minority rule. The rule referred to as the majority rule is that where a number of defendants are sued jointly, their financial worth, either individually or collectively, cannot be shown for the purpose of punitive damages. It is clear in this state that the financial worth of a defendant who is not sued in a joint or multiple action may be considered along with other facts and circumstances in assessing punitive damages. The rule adopted by the Court of Appeals is that whatever would be evidence as to one defendant would be competent to all defendants. These two rules are fully discussed in the opinion of the Court of Appeals and after careful consideration, we agree with the Court of Appeals. Under this rule of evidence all parties have an opportunity to introduce evidence tending to show the financial worth or lack thereof of all parties, and we think such a rule is fair. The Court of Appeals Opinion is attached hereto as an appendix to this opinion. We therefore affirm the Court of Appeals. APPENDIX IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION SITTING AT KNOXVILLE HAGER ODOM PLAINTIFF-APPELLANT VS. RUSTCRAFT BROADCASTING COMPANY OF TENNESSEE, INC., TIMES PRINTING COMPANY, CHATTANOOGA NEWS FREE PRESS, RUSSELL SHELLEY AND MRS. RUSSELL SHELLEY DEFENDANTS-APPELLANTS CARNEY, Presiding Judge. The plaintiff below, Hager Odom, age 51, an attorney of Chattanooga, Tennessee, was awarded $175,000.00 in compensatory damages and $45,000.00 in punitive damages by the jury in his suit for unlawful conspiracy and false arrest. The Trial Judge suggested a remittitur of $95,000.00 to be deducted from the compensatory damages and rendered judgment for $125,000.00 against all of the defendants-appellants. Plaintiff accepted the remitti-tur under protest and all of the parties have appealed to this Court. The plaintiff, Hager Odom, alleged that the defendants entered into a conspiracy unlawful at common law to charge the plaintiff falsely with the crime of indecent public exposure of his genital area so as to enable the police officers of the City of Chattanooga to enter plaintiff’s combination sleeping quarters and law offices without a warrant and to search the same, primarily for the arrest of one Leon Payne. Mr. Payne had been involved in a fight with David Brown, an off-duty city policeman. Plaintiff averred that defendants had the further purpose of obtaining sensational news items for the defendant Chattanooga Times and the defendant Chattanooga News Free Press, two newspapers published in the City of Chattanooga, and for the defendant Rustcraft Broadcasting Company which owned and operated a television station in the City of Chattanooga. The plaintiff testified that his home was illegally entered and his private quarters ransacked; that the plaintiff himself was physically beaten; that he was arrested on the false charges of disorderly conduct, public drunkenness, harboring a felon, resisting arrest and indecent exposure; that he was taken to police headquarters in the City of Chattanooga and later indicted by the grand jury on several of said charges; that widespread publicity of said charges was given in the defendants’ newspapers and over the defendant Rustcraft’s television station; that as a result of said false charges and the great publicity attendant therefrom the plaintiff suffered great humiliation, embarrassment, his health was greatly impaired, his law practice dwindled to almost nothing; that he was acquitted of all of said charges and he brought suit for one and a half million dollars. In addition to the above named appellants, two Chattanooga City Police officers, Donald Gray and Gerald Smith, were made parties defendant, but the jury returned a verdict in favor of said two police officers and they are no longer before the Court. Plaintiff’s declaration also contained a count charging unlawful statutory conspiracy. We copy T.C.A. Sections 39-1101, 39-1102, and 39-1103 as follows: “39-1101. ‘Conspiracy’ defined.— The crime of conspiracy may be committed by any two (2) or more persons conspiring: (1) To commit any indictable offense; (2) falsely and maliciously to indict another for such offense; (3) to procure another to be charged with, or arrested for, any such offense; (4) falsely to move or maintain any suit; (5) to cheat and defraud any person of any property by means in themselves criminal, or by any means which would amount to a cheat; (6) to obtain money by false pretenses; (7) to commit any act injurious to public health, public morals, trade, or commerce, or for the perversion or obstruction of justice, or the due administration of the law. (Code 1858, § 4789; Shan., § 6693-; Code 1932, § 11064.)” “39-1102. Overt act — Necessity.—-No agreement shall be deemed a conspiracy unless some act be done to effect the object thereof, except an agreement to commit a felony on the person of another, or to commit the crimes of arson or burglary. (Code 1858, § 4791; Shan., § 6695; Code 1932, § 11066.)” “39-1103. Conspiracy a misdemeanor. —Persons guilty of any conspiracy described in §§ 39-1101, 39-1102 or of any conspiracy at common law, are guilty of a misdemeanor. (Code 1858, § 4790; Shan., § 6694; Code 1932, § 11065.)” A short statement of the bizaare facts leading to plaintiff’s arrest is in order. Shortly after midnight on October 3, 1968, plaintiff Hager Odom was at home with guests. A former client, Leon Payne, came to plaintiff’s home and announced that he, along with two friends, had been involved in a fight with an off-duty policeman, David “Cotton” Brown. Payne explained to the plaintiff that he feared for his life if he should be arrested by members of the Chattanooga Police Force without the presence of an attorney and that he had been unable to locate his regular attorney, Mr. Douglas Meyer of the Chattanooga Bar, who lived in the same neighborhood as did the plaintiff. Payne asked the plaintiff to assist him. The plaintiff called the office of the Chattanooga Police and inquired if a warrant was outstanding for Mr. Payne and did not get any definite information. Thereupon, the plaintiff called the office of the Hamilton County Sheriff and asked if a warrant was outstanding to which he received the reply that no warrant was outstanding but that the police were seeking Payne for questioning. Plaintiff thereupon stated to Sergeant Holt, the officer in charge at the sheriff’s office, that if a warrant should issue, Payne would appear on the following morning at 9:00 o’clock at the Chattanooga Police station in company with his attorney, Mr. Meyer. In the meanwhile plaintiff’s guests had left and plaintiff told his former client, Payne, that he, Payne, could spend the night on the couch in plaintiff’s law office and plaintiff went to bed. The sheriff’s office reported to the Chattanooga police that Mr. Odom had called in about Mr. Payne and that Payne was probably at the home of plaintiff Odom. Thereupon, the Police Department dispatched several cars with policemen to the home of the plaintiff. Police were accompanied by Fred Gault, police reporter for the Chattanooga Times; the defendant, Marvin Russell Shelley, police reporter and photographer for the Chattanooga News Free Press; his wife, the defendant Yvonne Shelley; David Walker, reporter-photographer for WRCB Television of Chattanooga owned by defendant Rustcraft Broadcasting Company. At least three police cars, and maybe more, gathered in the street outside plaintiff’s apartment-offices located on the second floor above the street. According to the allegations of plaintiff’s declaration which were found to be true by the jury, when the police announced that they could not go into the plaintiff’s apartment without a warrant, it was agreed by Mr. Gault, employee of defendant Chattanooga Times, David Walker, employee of Rustcraft Broadcasting Company, and defendant Russell Shelley, employee of defendant Chattanooga News Free Press, that they would assist the police to enter the apartment without a warrant by the scheme of Mrs. Shelley calling and reporting to the police station that the plaintiff was then and there publicly exposing himself in an open window. Mrs. Shelley did place a call using her maiden name so charging the plaintiff with public exposure. It was the contention of the plaintiff that the two police officers, Gray and Smith, also participated in the conspiracy and there was substantial evidence to support such contention but the jury acquitted such two police officers of participation in the conspiracy and the judgment has become final. Police officers and some of the newspaper and television reporters and photographers testified that the plaintiff was, in fact, exposing himself. Reporters testified that the plaintiff was drunk and was cursing and threatening the officers. Plaintiff was corroborated in his testimony that he was not drunk and that he was not publicly exposing himself by Mr. Vick, a constable who was present. We hold that there was ample evidence from which the jury could reasonably find that the news reporters did form a conspiracy to make false charges that plaintiff was guilty of the crime of unlawfully exposing himself publicly in the window of his law office to assist the police officers to gain admittance to plaintiff’s apartment and to enable the reporters to gain a sensational news story. See Stansberry v. McKenzie, et al. (1951), 192 Tenn. 638, 241 S.W.2d 600. All of the assignments of error by all of the defendants relating to the sufficiency of the evidence of the conspiracy are overruled. The essential elements of a cause of action for malicious prosecution are that the prior suit or judicial proceedings has been finally determined in favor of the plaintiff; that the proceedings were brought through malice on the part of the defendant and without probable cause. Kauff-man v. A. H. Robins Co. (1969), 223 Tenn. 515, 448 S.W.2d 400. Want of probable cause cannot be inferred from malice. Peoples Protective Life Insurance Co. v. Neuhoff, 56 -Tenn.App. 346, 407 S.W.2d 190. However, malice may be inferred for want of probable cause. Dunn v. Alabama Oil & Gas Co. (1956), 42 Tenn.App. 108, 299 S.W.2d 25. However, it is contended by the defendants, Chattanooga News Free Press, Chattanooga Times, and Rustcraft Broadcasting Company, that they are not liable in damages because the acts of their employees were unauthorized and beyond the scope of their employment. Appellants cite and place primary reliance upon the cases of Sears, Roebuck & Co. v. Steele (1939), 23 Tenn.App. 275, 130 S.W.2d 160, and Aver-ill, et al. v. Luttrell (1957), 44 Tenn.App. 56, 311 S.W.2d 812. In the case of Sears, Roebuck & Co. v. Steele, supra, the plaintiff Steele, who operated a garage a few doors from the local store of Sears, Roebuck & Company in Nashville, issued a check to an employee in the amount of $7.80 which was raised by the employee to $17.80 and cashed at Sears, Roebuck & Company. The check had been post-dated by the plaintiff Steele and the bank returned it to Sears for that reason. When the assistant manager of the local store communicated with plaintiff Steele, Steele noted that the check had been raised but said he was willing to pay the $7.80 for which it had first been written. The assistant manager refused, insisting that Steele had been careless in writing the check making it possible for the employee to raise the amount of it and for this reason, insisted that Steele should bear the entire loss and threatened him with prosecution. The check was turned over to a deputy sheriff who was a regular collection agent of unpaid checks for the local store, Sears, Roebuck & Company. The deputy sheriff then issued a warrant and charged plaintiff Steele with a felony under the “Bad Check Statute,” then Code Section 11157. Plaintiff Steele was arrested, brought before a Justice of the Peace and bound over to the grand jury to await the action of the grand jury. The grand jury refused to indict the plaintiff. After the termination of the criminal prosecution, plaintiff Steele brought an action of malicious prosecution against the defendant Sears, Roebuck & Company and its assistant manager. The manager and assistant manager testified that it was the company’s rule that forged or altered checks should be returned to the home office of Sears, Roebuck & Company in Chicago and that the managers had no authority to deal with forged checks. The Court of Appeals, speaking through Judge Portrum, found that the home office of Sears, Roebuck & Company had no knowledge of the criminal prosecution of the plaintiff and had not ratified the same and that the employment of a collecting agent, such as the deputy sheriff, did not impliedly endow the deputy sheriff or agent with the right to institute criminal prosecutions for the purpose of collecting debts. The Court commented that it would be a violation of a well-established public policy to use the criminal processes for the purpose of collecting debts and an implied right to institute criminal processes for this purpose would be a violation of this policy and hence, the Trial Court was in error and should have directed a verdict in favor of the defendant employer, Sears, Roebuck & Company. See 18 A.L.R.2d 402 and 92 A.L.R.2d 15. In the Averill case which was appealed from the Circuit Court of Hamilton County, the plaintiff Lyle Luttrell was a professional baseball player employed by the Chattanooga Baseball Club and brought suit against the defendant, Nashville Baseball Club, and its catcher, the defendant, Earl Averill, Jr., for damages as a result of an assault and battery committed by Aver-ill upon the plaintiff during the playing of a regularly scheduled game. Luttrell was at bat and thought that the pitcher was deliberately throwing at his head trying to hit him; Luttrell, in disgust, threw his bat in the direction of the pitcher’s mound. Thereupon, Averill, the catcher, without any warning, stepped up from behind Lut-trell and struck him a hard blow on the side or back of his head with his fist knocking the plaintiff Luttrell unconscious and fracturing his jaw. It was undisputed that there had been no previous animosity or malice between Averill and Luttrell. In holding that the Nashville Baseball Club was not liable for the acts of its employee, Averill, the catcher, our Tennessee Court of Appeals, speaking through the late and much lamented Judge Peabody Howard, held that the act of the agent was wholly independent and foreign to the scope of his employment and the employer was not liable for such acts. We hold that neither the case of Sears, Roebuck & Co. v. Steele nor Averill v. Luttrell is controlling of the issues in the case at bar because of the difference in factual situation. A master is liable for the tortious acts of his servant done in the course of his employment although they may have been done in disobedience of the master’s instructions. McConnell v. Jones, (1949), 33 Tenn.App. 14, 228 S.W.2d 117; Anderson v. Covert (1952), 193 Tenn. 238, 245 S.W.2d 770. In the case at bar the acts of defendant Shelley, reporter Gault, and reporter Walker as reporters and photographers were not wholly independent and foreign to the scope of their employment. On the contrary, their unlawful acts were done directly within the scope of their employment and in furtherance of their employer’s business, namely, to get news stories and pictures. The products of their unlawful acts were used by their employers in the publication of the news stories by newspaper and television. Since the jury disbelieved defendant’s witnesses that plaintiff Odom was, in fact, publicly exposing himself and the jury found that the defendants’ employees made false charges against the plaintiff, we hold that the defendants, Chattanooga Times, Chattanooga News Free Press, and Rust-craft Broadcasting Company, are not entitled in this Court to rely upon the defense that their servants acted to vindicate public justice or redress offenses against society. See 32 Am.Jur.2d, False Imprisonment, Section 41. The assignments of error relating to re-spondeat superior are overruled. The Chattanooga Times, Chattanooga News Free Press, and Rustcraft Broadcasting Company all assign as error the action of the Trial Court in refusing to permit police officer Pomeroy to give his reasons for requesting the defendant, Mrs. Shelley, to telephone police headquarters and make the charges of public and indecent exposure against the plaintiff Odom. Officer Pomeroy testified that when he arrived at the scene he talked to the defendant, Mrs. Shelley, and possibly one or two other women who had gathered in the crowd outside the plaintiff’s offices and when Mrs. Shelley told him that she had seen the plaintiff standing in the window undressed, he asked her to go to a phone and report the charge to the police station. The Trial Judge refused to permit him to state that he had had a similar case which did not stand up in court because the female had not made the complaint. His Honor the Trial Judge refused to permit Officer Pomeroy to go into the reasons for asking Mrs. Shelley to make the phone call to the police station. The rejection of such evidence was harmless error and did not affect the verdict of the jury. The gravamen of Mrs. Shelley’s offense was the false charges and not the person to whom made. For the same reason those assignments of error relating to the refusal by the Trial Judge to admit in evidence a divorce petition filed by plaintiff’s wife against him and in refusing to admit into evidence records of the convictions of the witness Leon Payne are overruled. The assignments of error that the Trial Judge erroneously implied to the jury that there was, in fact, a conspiracy are overruled because it does not appear that such language by the Trial Judge affected the verdict of the jury. The comments were, at most, harmless error. We find no merit in those assignments of error which insist that the Trial Judge should have declared a mistrial because of alleged prejudicial comments made by the plaintiff in the presence of the jury. Some of these comments were improper but from our reading of the record, we are of the opinion that the jury fully understood the issues involved in the litigation and were not influenced in their verdict by the comments of the plaintiff and his attorney during the course of the trial. Therefore, these assignments of error are respectfully overruled. Rustcraft Broadcasting Company, by its assignment of error XIV, insists that the Trial Court erred in permitting the plaintiff to cross-examine Attorney General Ed Davis as to whether or not Davis had been censured by the Hamilton County Grand Jury. The Trial Judge has wide discretion in the matter of cross-examination and we find no abuse of that discretion in the case at bar. The assignment of error is overruled. We find no merit in assignment of error XV by Rustcraft that the Trial Court erred in admitting into evidence only one photograph of the wounded officer, David Brown. We find no abuse of discretion on the part of His Honor the Trial Judge and do not find that the refusal to permit additional photographs affected the verdict of the jury. The assignment of error is, therefore, respectfully overruled. We find no merit in Rustcraft’s assignment of error XVI that the Trial Court erred in reopening the proof at the conclusion of all testimony and that the Court erred in refusing to let the appellant, Rust-craft, introduce testimony of officer David Brown after plaintiff announced he would not read the deposition of Leon Payne. We find no abuse of discretion on the part of the Trial Judge and this assignment of error is overruled. Assignment of error No. XVII by Rust-craft insists that the Trial Court erred in permitting court reporter Mary Dantzler to authenticate the transcript of the criminal trial of Hager Odom and to permit portions thereof to be read to the jury by the plaintiff. We think this evidence was competent and the assignment of error is respectfully overruled. Assignment of error No. XVIII by Rustcraft is that the Trial Judge erred in permitting the plaintiff on cross-examination to put into evidence the testimony of defendant Russell Shelley given in the criminal case as to what he heard his wife say previously. This evidence was admissible for impeachment of the defendant Shelley and wife and also as evidence relating to the alleged conspiracy. If error at all, this was harmless error, and the assignment is overruled. All of the appellants insist that the jury returned an invalid verdict because it was a quotient or gambling verdict. The misconduct on the part of the jury alleged is that the amount submitted by each juror was added and the total divided by twelve and it was agreed by the jury in advance that this would be the verdict of the jury. Appellants cite and rely upon the cases of Elledge v. Todd, 20 Tenn. (1 Humphreys) 43; Bennett v. Baker, 20 Tenn. (1 Hum-phreys) 399; 34 Am.Dec. 655; East Tenn. & Western N. C. Railroad v. Winters, 85 Tenn. 240, 1 S.W. 790. Approximately ten of the jurors testified at the hearing on the motion for a new trial. The substance of their testimony was that after each of the jurors had decided that there had been a conspiracy and that the plaintiff was entitled to recover damages and after each juror had given a tentative figure, it was agreed that the foreman would add the totals of all the amounts suggested by the various members of the jury and arrive at an amount which one of the jurors characterized as a “ball park figure” which they could then discuss and might agree upon. This was done and the jurors, after discussion, did agree upon the average amount which they then apportioned between compensatory damages and punitive damages as hereinabove set out. Each juror emphasized that he was satisfied with the verdict as rendered and if the average amount had been too high, he would not have approved it. A verdict arrived at by averaging various figures is not, in and of itself, illegal. It is only when there is an antecedent agreement, express or implied, to abide by the results that a quotient verdict will be vitiated. On the authority of Mayor and Aldermen of the Town of Morristown v. Inman, 47 Tenn.App. 685, 342 S.W.2d 71, we overrule the assignment of error. Defendants Rustcraft Broadcasting Company and Mr. and Mrs. Shelley insist that the verdicts, as rendered by the jury, are excessive and so excessive as to indicate passion, prejudice or unaccountable caprice on the part of the jury. The plaintiff is an honor graduate of the University of Tennessee School of Law; he is 51 years of age; he has been humiliated and embarrassed by the false charges of being a sex pervert; his law practice has dwindled to a few hundred dollars per year; it will take many years for the plaintiff to rebuild his law practice and remove the stigma which has been placed upon him by the unlawful acts of the defendants. The compensatory damages awarded the plaintiff are not excessive and the assignments of error relating thereto are expressly overruled. The appellant Rustcraft, by assignment of error XXI, insists that the Trial Judge erred in permitting into evidence the life expectancy tables for Mr. Odom since there was neither allegation nor proof about personal injuries resulting in permanent disability. We are not cited to any authority by the appellants in support of this assignment of error nor have we, by our search, been able to find any case analogous upon the facts. Mr. Prosser, in his celebrated textbook on torts, first edition, 1941, page 883, states that malicious prosecution is analogous to libel or the kind of slander which is actionable without proof of damage and recovery of damages may be had without proof of actual harm to plaintiff’s reputation, humiliation and other mental suffering or injury to his feelings. See also Thompson v. Schulz, 34 Tenn.App. 488, 240 S.W.2d 252. We hold that it was proper for the jury to consider the age of the plaintiff and his life expectancy in arriving at the amount of damages he should be awarded for the pain, suffering, humiliation, and embarrassment which he has sustained to the date of the trial and which he will sustain in futuro. The assignments of error, therefore, are respectfully overruled. Finally, all of the appellants contend that the Trial Court erred in not directing a verdict on Count 2 of the declaration which is the punitive damages count in that more than one defendant was sued and the financial worth of only one defendant was shown. As above stated, the jury awarded punitive damages of $45,000.-00 against all of the defendants. Plaintiff proved the net worth of one of the defendant publishing forms to be over $600,000.-00. There was no proof of the net worth of the other defendants. Under Tennessee law separate judgments may not be awarded against joint tort fea-sors. N. C. & St. L. Railway v. Jones, 100 Tenn. 512, 45 S.W. 681; Donegan v. Beasley, 27 Tenn.App. 369, 181 S.W.2d 379. While the allowance of punitive or exemplary damages has been criticized by the text writers, the majority of the states including Tennessee allow punitive damages. Prosser on Torts, First Edition, 1941, page 13. Many courts throughout the nation allow punitive damages against the master or principal for the malicious acts of an agent or servant only when the master or principal has authorized or ratified the act of the agent or servant, or when there is a contractual relation between the plaintiff and the master. 22 Am.Jur.2d, Damages, Section 257, page 350. However, the State of Tennessee has expressly rejected such a rule. See Memphis Street Railway Co. v. Stratton (1915), 131 Tenn. 620, 176 S.W. 105. It is the duty of the Trial Court to determine whether there is material evidence which would justify the award of punitive damages but the allowance of such punitive damages is a matter of discretion with the jury. Hughes, et al. v. Taylor (1946), 29 Tenn.App. 548, 198 S.W.2d 337. Punitive damages are placed upon a defendant for his wrong conduct and with a view to preventing similar wrongs in the future. They are not allowed as a matter of course but only where there are some features of aggravation as where the wrong was done wilfully and maliciously under circumstances of rudeness or oppression or in a manner which evinces wanton and reckless disregard of the plaintiff’s right. Liberty Mutual Ins. Co. v. Stevenson (1963), 212 Tenn. 178, 368 S.W.2d 760, and Booth v. Kirk (1963), 53 Tenn.App. 139, 381 S.W.2d 312. Finally, the appellants contend that a joint judgment for punitive damages against all the defendants cannot stand because the financial standing of only one defendant was proven by the plaintiff. The majority rule was announced in the leading case of Washington Gas Light Co. v. Lansden (1898), 172 U.S. 534, 19 S.Ct. 296, 43 L.Ed. 543. The minority rule which allows a joint judgment for punitive damages against two or more defendants even though the financial standing of all the defendants was not proven is announced in the leading case of Interstate Company, et al. v. Garnett (1929), Miss., 122 So. 756, 63 A.L.R. 1402. Our Tennessee Courts are committed to the rule that financial status of a defendant may be considered along with other facts in assessing punitive damages. Telephone & Telegraph Co. v. Shaw, 102 Tenn. 313, 52 S.W. 163; Suzore v. Rutherford (1952), 35 Tenn.App. 678, 251 S. W.2d 129; and McDonald v. Stone (1958) 45 Tenn.App. 172, 321 S.W.2d 845. However, our Tennessee Courts have never had occasion to rule on the precise question presented here. This Court upheld a joint judgment for punitive damages in the case of International UAW, etc. v. American Metal Products Company (1965), 56 Tenn.App. 526, 408 S.W.2d 682. In the American Metal Products case there was no motion for a directed verdict on the count for punitive damages. The Washington Gas Light case was discussed in the American Metal Products case only in the relationship to the admissibility of certain evidence but the Washington Gas Light case was not analyzed or discussed with reference to the legality of a joint judgment for punitive damages. We hold the better rule to be the minority rule as stated in the opinion of Judge Handy in Bell v. Morrison, 27 Miss. 68, as follows: “It is settled by authorities almost without exception, in England and in the United States, that in actions for injuries to the person or to the character, the jury are not restricted, in giving damages, to the actual, positive injury sustained by the plaintiff, but may give damages as a punishment against the defendant; that not only may the plaintiff receive compensation for the injury inflicted upon him, but that the interest of society may be regarded, and such damages may be awarded as will tend to operate by way of example, and to deter others from similar acts of violence and oppression. See Sedgwick on Damages, 39 et seq., and cases there cited. “If this rule, which is sanctioned by so many high authorities, be just and salutary, it can only be properly and effectively applied by taking into consideration all the circumstances, whether of aggravation or mitigation of the grievance complained of, the situation of the parties as to wealth, character, and influence, and awarding such damages, in view of all these circumstances, as will both render reparation to the plaintiff, and act as an adequate punishment to the defendant. The damages which would operate as a proper punishment to one man might be inadequate to that effect upon another, by reason of their difference in pecuniary condition; and on the contrary, a verdict that would be scarcely regarded by a wealthy man, might be ruinous to a poor man. Hence the necessity, if the principle of exemplary damages be sound, to inquire into the pecuniary condition and circumstances of the defendant, in order, if the jury consider the case worthy of being made an example of, that the verdict may at once be adequate to the injury done to the plaintiff and to society, and just and reasonable to the defendant. “The action was for the joint tort of the defendants, who joined in their pleas. In such a case, it is held to be proper for the jury to assess damages against all the defendants jointly, according to the amount which, in their judgment, the most culpable of them ought to pay. 2 Greenl. Ev. sec. 277. Whatever, therefore, would be competent evidence with that view as to one, would be competent as to all of the defendants. Otherwise a wealthy defendant, who was principally implicated in a wrong of this character, might escape the payment of just and reasonable damages by having others, without character or property, associated in the unlawful act. We therefore think that this evidence was properly submitted to the jury.” Since society is also served by the award of punitive damages, we hold that a plaintiff should not forfeit his right to join joint tort feasors in one suit in order to recover punitive damages. We also hold that the introduction of evidence of financial condition and net worth of one or more defendants is optional both to the plaintiff and to each defendant. The assignments of error of all the defendants below are overruled. APPEAL OF PLAINTIFF HAGER ODOM This Court filed an opinion in this case May 1, 1973, which was withdrawn on our own motion after it was called to our attention that we did not discuss the assignments of error of Mr. Odom. This has been a difficult case. We have had many conferences and more than one proposed opinion has been drafted. The cover sheet of one of the earlier drafts was inadvertently placed on the opinion filed May 1, 1973. Plaintiff Odom insists that not only should the $95,000.00 remittitur suggested by the Trial Judge be restored but that this court should also make an additur which the Trial Judge refused to make. This Court does not have authority to make an additur where the Trial Judge refused to make one. Loftis v. Finch (1973), Tcnn.App., 491 S.W.2d 370. This Court does have authority to reinstate all or part of the remittitur suggested by the Trial Judge. Murphy Truck Lines v. Brown, 203 Tenn. 414, 313 S.W.2d 440. Plaintiff’s damages cannot be evaluated as closely as damages for personal injuries. He will suffer embarrassment and humiliation for the remainder of his life. We hold that the remittitur suggested by His Honor the Trial Judge was too much and $25,000.00 thereof should be restored. Judgment will be entered for plaintiff for $150,000.00 with interest from date of trial below. The costs will be taxed against the defendants. MATHERNE and NEARN, JJ., concur.

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2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

STATE ex rel. Robert WILEY, Appellant, v. Bernard WAGGONER, Sheriff, Appellee. Supreme Court of Tennessee. Nov. 19, 1973. Edward M. Ellis, Knoxville, for appellant. David M. Pack, Atty. Gen., Alex B. Ship-ley, Jr., Asst. Atty. Gen., Nashville, for appellee. OPINION FONES, Justice. Robert Wiley, petitioner herein, filed a petition for writ of habeas corpus in the Knox County Criminal Court against Bernard Waggoner, Sheriff of Knox County, respondent herein. The petition was overruled by the trial court. Petitioner prayed for and was granted an appeal to the Court of Criminal Appeals. The case was transferred to this Court because the single issue presented is a challenge to the constitutionality of a Section of the Uniform Criminal Extradition Act, T.C.A. § 40-1016. The matter has been submitted on the briefs 'of petitioner and the Attorney General of Tennessee, on behalf of respondent. The undisputed material facts of ^this case are that petitioner was indicted Í on April 26, 1972 by the Grand Jury of A Ochiltree County, Texas, for the crime of ^swindling. On December 7, 1972, petitioner was arrested in Tennessee on a Governor’s warrant of extradition issued pursuant to the Uniform Criminal Extradition Act, T.C.A. § 40-1001 et seq. We are entitled to and do presume that the warrant was issued upon a requisition for petitioner by the executive authority of Texas to the Governor of Tennessee. (The requisition document itself is not identified and authenticated, and we can take no cognizance of its existence in this record). On December 20, 1972, petitioner filed his petition for writ of habeas corpus, contending inter alia, that the Governor’s warrant was illegally issued. The Criminal Court of Knox County considered the matters raised by the petition in a hearing at which the petitioner testified, on February 9, 1973. At the close of the hearing, said court overruled the petition, from which action this appeal was taken. Petitioner presents the following assignment of error: “The Trial Court erred in the holding that the Legislature could authorize the Governor to issue a Warrant of Arrest under the Extradition Law.” Under this assignment petitioner contends that T.C.A. § 40-1016 of the Uniform Criminal Extradition Act is unconstitutional. This Section reads as follows: “If the governor shall decide that the demand should be complied with, he shall sign a warrant of arrest, which shall be sealed with the state seal, and be directed to a sheriff, marshal, coroner, or other person whom he may think fit to entrust with the execution thereof; and the warrant must substantially recite the facts necessary to the validity of its issue.” Petitioner’s position is that under the provisions of the Tennessee Constitution, Article II, Sections 1, 2, relating to the separation of powers between the Executive, Judicial and Legislative Departments, the Legislature cannot grant to the Governor a judicial function, to wit, the issuance of an arrest warrant. Article IV, Section 2(2) of the United States Constitution, provides as follows: “A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.” In 1793 the United States Congress implemented this Section of the Constitution by passing an Act, the substance of which has been retained and codified in language similar to the original enactment, at 18 U. S.C.A. § 3182: “Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State, District or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, the executive authority of the State, District or Territory to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear. In the past, Tennessee had in effect statutes originating in the Code of 1858, which provided that upon demand of the Governor of another State for the delivery of a person charged with a crime in such State, the Governor of Tennessee should issue a warrant of arrest for such person. By the Public Acts of 1951, Chapter 240, Tennessee became the thirty-fifth State to adopt the Uniform Criminal Extradition Act. The Act, which had been codified as T.C. A. § 40-1001 et seq., has been adopted in at least 44 states and 2 territories. The Act details the procedure by which the Governor is to cause a fugitive to be arrested. Section 40-1016 of the Act follows generally the provisions found in the federal law and in the prior Tennessee law providing for the issuance of an arrest warrant by the Governor. However, in passing on the constitutionality of Section 40-1016, we must keep in mind that the matter of extradition does not rest upon State Statutes, but, on the contrary, originates with the Federal Constitution, supra, which is implemented by the Congressional enactment, supra. State ex rel. Brown v. Grosch, 177 Tenn. 619, 633, 152 S.W.2d 239 (1941). State legislation on the subject is valid only insofar as it is ancillary to and in aid of the Federal requirements. See 4 Wharton’s Criminal Law and Procedure, Extradition, § 1637, p. 320; 31 Am.Jur.2d, Extradition, § 5, p. 927. The decisions of the Supreme Court of the United States are binding upon us in extradition matters. State v. Cate, 199 Tenn. 195, 285 S.W.2d 343 (1955), and So. Carolina v. Bailey, 289 U. S. 412, 53 S.Ct. 667, 77 L.Ed. 1292 (1933). The United States Supreme Court, in the case of Ex parte Kentucky v. Dennison, 65 U.S. (24 How.) 66, 16 L.Ed. 717, 727-8 (1861), addressed itself to the question of “whose duty it is to have the fugitive delivered and removed to the State having jurisdiction of the crime,” in these words: “The clause in question [U.S.Const., Art. IV, § 2(2)] like the clause in the Confederation, authorizes the demand to be made by the executive authority of the State where the crime was committed, but does not in so many words specify the officer of the State upon whom the demand is to be made, and whose duty it is to have the fugitive delivered and removed to the State having jurisdiction of the crime. But, under the Confederation, it is plain that the demand was to be made on the Governor or executive authority of the State, and could be made on no other department or officer; for the Confederation was only a league of separate sovereignties, in which each State, within its own limits, held and exercised all the powers of sovereignty; and the Confederation had no officer, either executive, judicial or ministerial, through whom it could exercise an authority within the limits of a State. In the present Constitution, however, these powers, to a limited extent, have been conferred on the General Government within the territories of the several States. But the part of the clause in relation to the mode of demanding and surrendering the fugitive is (with the exception of an unimportant word or two), a literal copy of the Article of the Confederation, and it is plain that the mode of the demand and the official authority by and to whom it was addressed, under the Confederation, must have been in the minds of the members of the convention when this article was introduced, and that, in adopting the same words, they manifestly intended to sanction the mode of proceeding practiced under the Confederation — that is, of demanding the fugitive from the executive authority, and making it his duty to cause him to be delivered up.” In the case of Illinois ex rel. McNichols v. Pease, 207 U.S. 100, 28 S.Ct. 38, 52 L. Ed. 121, 125 (1907), the United States Supreme Court restated the principles of law deduced from numerous decisions of that Court construing the Federal constitutional and statutory provisions relating to extradition. These principles, as enunciated by the Court in Pease expressly make it the duty of the Executive of the State where the fugitive is found to cause him to be arrested, surrendered and delivered to the appointed agent of the demanding State, to be taken to that State. This Court, in State ex rel. Redwine v. Selman, 157 Tenn. 641, 12 S.W.2d 368 (1928), addressed itself to the matter of the Governor’s power to issue an arrest warrant, as follows: “(3) The Governor of Tennessee alone was clothed with power to determine whether or not the fugitive should be rendered upon demand of the Governor of the State of Georgia, and to issue the warrant and render the fugitive if the statutory prerequisites appeared. The execution of that power, whether ministerial as held in some jurisdictions, or quasi-judicial as held in others, required an examination of the requisition and a determination of the two questions of law and fact above referred to. Their determination required the exercise of a discretion personal to the Governor and it could not be delegated to another in his absence from the State. Ex parte Pelinski, Mo., 213 S.W. 809.” We note that the “two questions of law and fact” mentioned in the Selman case refer to the criteria in effect at the time Sel-man was decided to be used by the Governor in passing upon a request for a fugitive. These questions were: (1) is the person demanded substantially charged with a crime in the demanding state, and (2) is the person a fugitive from said state. At the present time, T.C.A. § 40-1012 sets out several factors to be considered by the Governor before the warrant is issued. These factors are not inconsistent with the questions for the Governor set forth in Selman. As stated heretofore, extradition is primarily a Federal matter. From our review of the Federal authorities it is clear that the power of the Governor to issue an arrest warrant, pursuant to an extradition proceeding, is a well-settled fundamental principle reaching far back into the constitutional history of this country, and even beyond. See Dennison, supra. The Constitution of the United States implies, and the Federal Statute implementing it expressly vests, authority to grant warrants of extradition in the Chief Executive of an asylum state. This Court observed in Grosch, supra, that the Legislature has no power to limit the right of the Chief Executive to grant warrants of extradition, for the reason that to do so would be in conflict with the supreme law of the land. By the same token, the Legislature has no authority to designate anyone other than the Governor to exercise that power. Petitioner calls our attention to the cases of Pettibone v. Nichols, 203 U.S. 192, 27 S.Ct. Ill, 51 L.Ed. 148 (1906) and Moyer v. Nichols, 203 U.S. 221, 27 S.Ct. 121, 51 L.Ed. 160 (1906). Petitioner urges that these cases say the issuance of a Governor’s warrant of arrest is a judicial or quasi-judicial function. In setting out the facts of the case, the Court, in Pettibone, observed that the Supreme Court of Idaho held the action of the Governor of Colorado, in honoring a requisition, to be “at least quasi judicial”. No further mention was made in Pettibone of the nature of the Governor’s function in issuing a warrant, as this was not at issue. The Moyer decision, cited by petitioner, is a companion case to Pettibone, governed by Pettibone, and contributes little or nothing to our consideration of the matter at hand. However, the Pettibone case and this Court’s decision in Selman, supra, illustrate one point; namely, that Courts have referred to the Governor’s function in issuing an arrest warrant in different ways. This is strictly a matter of terminology, since no court we know of has ruled that the issuance of a warrant of extradition and arrest is a judicial function to be exercised by the judiciary and not the executive. In our opinion, the Governor’s function should be described as executive in nature. Ex parte Germain, 258 Mass. 289, 155 N.E. 12, 51 A.L.R. 789 (1927); 35 C.J.S. Extradition § 2, p. 381-382. We feel that the term “executive function” particularly applies in view of the nature of extradition proceedings. These proceedings have been described as summary, rather than judicial to inquire into the merits of the charge. C.J.S., supra. The object of extradition is to prevent the successful escape of persons accused of crime, whether convicted or un-convicted, and to secure their return for the purpose of trial or punishment in the demanding state. An extradition is simply one step in securing the arrest and detention of the defendant. See 4 Wharton’s Criminal Law and Procedure, Extradition, Sec. 1632, p. 311. On the basis of the foregoing, we are of the opinion that T.C.A. § 40-1016 does not violate the separation of powers between the judiciary and the executive, and is a valid and constitutional enactment. It results that the judgment of the trial court is affirmed. Costs will be assessed against the petitioner. DYER, C. J., McCANLESS, J., and JENKINS and LEECH, Special Justices, concur.

sw2d_508/html/0539-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

The STATE of Tennessee, which sues by Ronald A. WEBSTER, District Attorney General on the relation of Park M. STRADER, Individually, and as Property Assessor for Knox County, Tennessee, et al., Appellants, v. L. D. WORD, County Judge for Knox County, Tennessee, et al., Appellees. Supreme Court of Tennessee. April 15, 1974. W. P. Boone Dougherty, Bernstein, Dougherty & Susano, Knoxville, for appellants. Richard Stair, Sr., Knoxville, for L. D. Word, and others. Everett H. Falk, Asst. Atty. Gen. of Tenn., for State of Tenn., David M. Pack, Attorney General, and others. Foster D. Arnett and Arnett, Draper & Hagood, Knoxville, for Cole-Layer-Trum-ble. OPINION FONES, Justice. The Knox County Assessor and the Knox County Board of Commissioners (hereinafter appellants) filed a complaint in the Chancery Court of Knox County against the County Judge of said County, members of the Quarterly County Court of said County, in their official capacities, Cole-Layer-Trumble Company, the Knox County Board of Equalization, and the State level defendants named in the style hereof (hereinafter appellees). Dual theories for relief are advanced, quo warranto and declaratory judgment. The suit is properly brought, as to form, for an action in quo warranto; that is, in the name of the State by the District Attorney General of Knox County on relation of plaintiffs. Combined therewith, plaintiffs named in the first paragraph hereof sue as individuals and in their official capacities as Assessor and Board of Commissioners, for declaratory relief. This suit results from the reappraisal of property in Knox County as required by T.C.A. §§ 67-1718 to 67-1722, enacted in 1967, with amendments in 1972 and 1973. The County Judge, having received authorization from the Quarterly County Court entered into a contract with Cole-Layer-Trumble Company, professional appraisers and mappers (hereinafter C-L-T), dated April 17, 1970, providing for reappraisal and ownership mapping of all real property in Knox County, in accord with Title 67, Tennessee Code Annotated. CL-T appraised the property and announced the appraised values in November, 1972. This suit was instituted on February 6, 1973. First appellants allege that a controversy exists between appellants and the Knox County appellees as to which governmental body in Knox County had authority to contract for the appraisal; second, appellants allege that, “Defendants have disputed the power, authority and duty of the Knox County Property Assessor to assess real property in Knox County, and additionally to make changes in the appraisals made by the defendant, Cole-Layer-Trumble Company”; third, it is asserted that T.C.A. §§ 67-605 and 67-1721 abrogate the power of the County Assessor to assess real property, vesting that authority in others; that said statutes are in conflict with the Assessor’s statutory duties as provided by T.C.A. §§ 67-633 and 67-616, and that said conflict constitutes a cloud on the authority and duties of the Knox County Property Assessor; fourth, that the Assessor has been advised by large numbers of reputable landowners of Knox County that C-L-T has failed to follow and adhere to the appropriate statutes and to the rules and regulations adopted by the Division of Property Assessments, and approved by the State Board of Equalization; that, as a result of the alleged irregularities, inconsistencies and inequities in the appraisal made by C-L-T, the Assessor will be unable to properly carry out the duties of his office with respect to fixing the values of real property in the County, and that the court should make a full inquiry into the mode, manner and conduct of the appraisals performed by C-L-T; fifth, the Board of Commissioners assert that the contract entered into with C-L-T is void because the Quarterly Court assumed powers which it did not have, in violation of Chapter 183 of the Private Acts of 1937. The foregoing constitutes the contentions of appellants in their cause of action sounding in quo warranto. With respect to the relief sought in that portion of the bill designated as a declaratory judgment action, suffice it to say that appellants assert the unconstitutionality of T.C.A. § 67-1718. Its constitutional faults are said to be the delegation of legislative power to the State Board of Equalization, and inequality of application of the reappraisal requirements, to all counties in the State, relying upon Article 2, Sections 1 and 2, and Article 11, Section 8, Constitution of Tennessee; Fifth Amendment, United States Constitution. Several individuals and corporations, owning real property in Knox County, sought to intervene. Their intervention was denied, but, by agreement, they were accorded the status of amicus curiae. After numerous preliminary proceedings, appellees answered and moved for judgment on the pleadings. The learned Special Chancellor designated by the Chief Justice of this Court to hear the case because of the resignation of the presiding Chancellor, filed a thorough and well-reasoned memorandum opinion, wherein he held that (1) a quo warranto proceeding cannot be maintained for the purposes set out in the complaint; (2) the Reappraisal Act of 1967, as amended, does not violate any provision of the Tennessee or the United States Constitution; (3) the Quarterly County Court was the proper unit of local government to implement the appraisal program in Knox County and its action, and the action of the County Judge pursuant thereto, was valid and binding on Knox County; (4) the Chancery Court of Knox County did not have jurisdiction to review the manner in which the County Board of Equalization and the State Board of Equalization carry out their official duties. Appellants’ four assignments of error are that the foregoing rulings of the Chancellor were erroneous, and we will discuss them in the order recited in the preceding paragraph. The exclusive grounds for an action quo warranto are set out in T.C.A. § 23-2801. Said section provides as follows: “Grounds for action. — An action lies in the name of the state against the person or corporation offending, in the following cases: (1) Whenever any person unlawfully holds or exercises any public office or franchise within this state, or any office in any corporation created by the laws of this state. (2) Whenever any public officer has done, or suffered to be done, any act which works a forfeiture of his office. (3) When any persons act as a corporation within this state, without being authorized by law. (4) Or if, being incorporated, they do or omit acts which amount to a surrender or forfeiture of their rights and privileges as a corporation. (5) Or exercise powers not conferred by law. (6) Or fail to exercise powers conferred by law and essential to the corporate existence.” The principal contention of the appellants on this appeal is that the Chancellor overlooked subsection (5) of T.C.A. § 23-2801. There are no allegations in the complaint that any public official is usurping an office, nor has committed any act that would work a forfeiture of an office, so as to come within the scope of subsections (1) and (2) of the statutes. In his memorandum opinion the Chancellor correctly observed that subsections (1) and (2) provide the only grounds for the maintenance of a quo warranto action against persons holding public office. Subsections (3), (4), (5) and (6) of the above-quoted statute apply to corporation officers, corporations, trustees, etc., but do not apply to public officials. See Caruthers’ History of a Lawsuit, 8th Ed., § 604. All appellees are public officers sued in their official capacity, and not as individuals. A quo warranto action against a public official has been held to be a suit against such person in his individual capacity, and not his official capacity. State v. Stine, 200 Tenn. 561, 292 S.W.2d 771 (1956). Thus we hold that there are no grounds asserted by the appellants for the maintenance of a quo warranto action, and the first assignment of error must be overruled. However, the principal issues that the appellants seek to litigate are justicia-ble controversies in a declaratory judgment action, and will be treated as though plead as a part of the declaratory judgment action, although, in fact, they are recited by the pleader in his action sounding in quo warranto. “Thus if the bill makes out a case for relief, any want of formality, or any misnomer of the bill, or any eccentricity of phraseology will not defeat the complainant’s right of relief on the facts alleged and proved.” Gibson’s Suits in Chancery, 5th Ed., § 52, p. 65. Appellants make no contention in this Court with respect to the effect of T.C.A. §§ 67-605, 67-633 and 67-616 upon the County Assessor’s duties or conflicts between said sections and other sections of Title 67, T.C.A. By Chapter 226 of the Public Acts of 1973, the Legislature repealed Chapter 6 of Title 67 and substituted therefor a new Chapter, codified as Sections 67-601 through 67-648. It appears that all questions in the original bill relating to the former sections of Chapter 6 have been cured by the 1973 Chapter. Appellants contend that T.C.A. § 67-1718 violates the Separation of Powers doctrine embodied in Article 2, Sections 1 and 2, Constitution of Tennessee, in that said Section delegates legislative functions and responsibilities to the Executive Department of State government. More specifically, the contention is made that, “. the reappraisal of property is to be accomplished in accordance with standards, rules and regulations formulated by the Division of Property Assessments and approved by the State Board of Equalization. Nowhere are there any legislative standards or criteria for such rules and regulations.” A brief reference to the background of the legislation under attack is appropriate. In 1966, the Legislature, in extraordinary session, created a Tax Study Commission composed of 25 members, 2 members from the House, 2 members from the Senate, and 21 “knowledgeable and public spirited citizens” with at least 4 of said 21 members to be from each of the Grand Divisions of the State. The Commission was charged with the purpose of “making a thorough examination of ad va-lorem property tax throughout the State, and its administration, and the maintenance of an adequate revenue structure for the local subdivisions of the State.” Chapter 4, Public Acts 1965, Extraordinary Session, effective date April 7, 1966. We take judicial knowledge that one of the results of the study and report made by said Tax Commission was the enactment of Chapter 326, Public Acts 1967. The preamble and first section of said Act is as follows: “Whereas, there has been found to exist great inequalities in the assessments of individual owners of property in most of the counties of the State of Tennessee, so that the reported median assessment ratio cannot be relied upon as a guide to any common level of assessments within the county and the median assessment ratios themselves vary widely among the various epunties; and Whereas, the equality and uniformity of assessment required by the Constitution cannot be completely and fairly achieved without reappraisal and revaluation of property; Be it enacted by the General Assembly of the State of Tennessee: Section 1. There shall be made as promptly as possible a reappraisal or revaluation of all real property for taxation in every county and city of Tennessee which has not had such reappraisal subsequent to January 1, 1965, unless the State Board of Equalization shall determine that reappraisal is unnecessary for a particular county. There shall also be a reappraisal or revaluation of all personal property or classes of personal property which the State Board of Equalization shall determine requires reappraisal to conform to legal standards. The assessment rolls shall be prepared and property shall be reappraised, including ownership mapping, in every city and county, in accordance with standards, rules and regulations formulated by the Division of Property Assessments and approved by the State Board of Equalization. State funds shall not be obligated or advanced toward the cost of any reappraisal which is not made in such manner and according to such standards as shall be approved by the State Board of Equalization. There shall also be a reappraisal or revaluation of all property assessed by the Public Service Commission. The State Board of Equalization is authorized and directed to establish rules and procedures for the appraisal of localized properties, and the Public Service Commission is hereby authorized and directed to enter into contracts or to make such arrangements as are necessary for the competent appraisal of all real estate and tangible property of such public utilities located in each of the ninety-five (95) counties of Tennessee, said appraisals to be made in an orderly manner over the next five (5) years concurrently with the reappraisal of locally assessed properties.” Section 1 of said Act is codified as T.C. A. § 67-1718. By Chapter 773, Public Acts of 1972, (8) years was substituted for (5) years and, as so amended, is the section under constitutional attack. In the preamble to said Act the Legislature recognized a condition in this State of inequality and lack of uniformity in the assessment of property contrary to the mandate of our Constitution, and determined that reappraisal and ownership mapping was a necessary step to remedy that state of affairs. However, a careful study of every legislative enactment from 1967 to date, falling within the purview of the first 17 chapters of Title 67 T.C.A. is necessary for a proper understanding of the legislative scheme to bring about equality of taxation in the ninety-five counties of Tennessee and perpetuate that equality from year to year. It would unnecessarily prolong this opinion to recite a chronology of said Acts. Suffice it to say that Chapters 2, 6, and 17 of Title 67 T.C.A. must be read in pari materia with T.C.A. § 67-1718 to determine whether or not there is any merit to the contention advanced by appellants, that “nowhere” has the Legislature provided standards or criteria for such rules and regulations. Specifically, T.C.A. § 67-606 (a revision of T.C.A. § 67-605 by Public Acts of 1973, Chapter 226, Section 6) provides the basis for valuation of real property, and also personal property. Said Section requires that Assessors shall be guided by and follow the instructions of the appropriate assessment manuals issued by the State Division of Property Assessments, and approved by the State Board of Equalization; that such manuals shall provide for consideration of eight specific factors in determining the value of real property. After providing four factors to be considered in determining the value of personal property, the next paragraph of said statute declares: “It is the legislative intent hereby declared that no appraisal hereunder shall be influenced by inflated values resulting from speculative purchases in particular areas in anticipation of uncertain future real estate markets; but all property of every kind shall be appraised according to its sound, intrinsic and immediate economic value which shall be ascertained in accordance with such official assessment manuals as may be promulgated and issued by the state division of property assessments and approved by the state board of equalization pursuant to law.” The factors that must be given consideration in the assessment manuals are: “(1) location; (2) current use; (3) whether income bearing or nonin-come bearing; (4) zoning restrictions on use; (5) legal restrictions on use; (6) availability of water, electricity, gas, sewers, street lighting, and other municipal services; (7) natural productivity of the soil, except that the value of growing crops shall not be added to the value of the land; and (8) all other factors and evidences of values generally recognized by appraisers as bearing on the sound, intrinsic and immediate economic value at the time of assessment.” T.C.A. § 67-207, § 67-208, § 67-232, and other sections of Title 67 too numerous to detail, further implement and provide guidance and direction for the orderly reappraisal of property state-wide. It is appropriate to observe, at this point, that the work product of C-L-T, or any other organization employed to assist a local tax assessor, is nothing more than a recommendation to the tax assessor and the County Board of Equalization, and is advisory only. The final decision, as to valuation, shall be made by the tax assessor and the Board of Equalization. See T.C.A. § 67-1706. In Department of Public Welfare v. National Help “U” Ass’n et al., 197 Tenn. 8, 270 S.W.2d 337 (1954), Justice Burnett, writing for the Court, adopted the following statement from 11 Am.Jur., Constitutional Law, Section 240, page 955 : “The general principle governing the conditions under which the power to make rules and regulations may be delegated has been stated as follows: A legislature, in enacting a law complete in itself and designed to accomplish the regulation of particular matters falling within its jurisdiction, may expressly authorize an administrative commission, within definite valid limits, to provide rules and regulations for the complete operation and enforcement of the law within its expressed general purpose.” The Legislature, clearly acting within its jurisdiction to regulate and equalize the taxation of property, has provided administrative agencies with standards, criteria and definite limits within which rules and regulations and assessment manuals are to be promulgated. Appellants’ contention that § 67-1718 T.C.A. delegates functions to the executive department in violation of the Separation of Powers doctrine is without merit. Next, it is said that the statute does not apply equally to all counties of the state, contrary to Article XI, Section 8 of the Constitution of Tennessee, and the 5th and 14th Amendments of the United States Constitution. A unitary reading of this statutory scheme for property appraisal for taxation purposes compels the conclusion that adequate standards are provided within the limits of which the discretion of the Board of Equalization must be exercised. The discretion of that body, therefore, lies in its power to determine whether there exists within a given county an inequitable property assessment scheme. The learned Chancellor’s opinion gave distinct recognition to the conditions which prompted the vesting of such discretion in the Board of Equalization. “Prior to the enactment of the Reappraisal Statutes, a number of counties had been ignoring the laws pertaining to assessments, and in those counties some action was necessary, and the duty of seeing that the constitutional requirements, the duty of examining the methods used in the various counties, was delegated to the State Board of Equalization. In those counties where proper appraisals and assessments had been made, no action was necessary, in all others it was mandatory.” The effect of T.C.A. § 67-1718 is to presume conclusively that cities and counties undertaking property reappraisals subsequent to January 1, 1965, have fulfilled the requirement of equality in assessment. As to all others, the Board of Equalization is empowered to ascertain whether such is the case, and to command reappraisal where the requirement is unfulfilled. That an administrative agency may constitutionally be delegated the authority to determine whether a state of facts exists which calls into operation a mandatory statute is a firmly established proposition in Tennessee. Lobelville Special School District v. McCanless, 214 Tenn. 460, 464, 381 S.W.2d 273 (1964); Richardson v. Reese, 165 Tenn. 661, 667, 57 S.W.2d 797 (1933); Leeper v. State, 103 Tenn. 500, 526, 53 S. W.2d 962 (1899). Again, when read in pari materia with the relevant statutes in Title 67 T.C.A., it is apparent that the Legislature properly granted to the State Board of Equalization the discretion to exempt from reappraisal any county whose valuations of property and assessment procedures currently met the standards and criteria declared by the Legislature in said Title. Appellants’ contention to the contrary is without merit and we hold that the reappraisal statutes, of which T.C.A. § 67-1718 is a part, are constitutional. Appellants assign as a third error the holding of the learned Chancellor that the Knox County Quarterly Court was the proper body to enter contracts for the reappraisal of real property under T.C.A. §§ 67-1718 through 67-1722. T.C.A. § 67-1719 reads, in pertinent part: “Financial reappraisal and ownership mapping. — The cost of reappraisal and ownership mapping in each city and county shall be financed by a grant from the state of Tennessee to the county of one-half (½) the amount of said cost and by a loan by the state to the county of the balance of the cost, repayable in annual instalments over a ten (10) year period. In addition to any other contract which may be required, there shall be a contract signed by the county judge or chairman, acting with the approval of the county legislative body, and by the representative of the state board of equalization for repayment on specified dates of the proportion of the cost loaned, and interest thereon at an annual rate of two per cent (2%).” It is the appellants’ essential contention that § 67-1719 contemplates that the Knox County Board of Commissioners would execute reappraisal contracts. Such a contention is met headlong by the elemental fact that the statute is one of general application, affecting all counties in Tennessee. Therefore, the Legislature must be deemed to have intended the plan workable in all counties, and cannot be held to have established such a plan with specific reference to one of two counties in the State with dual governmental units. Appellants also contend that the several Private Acts which established the powers of the Board of Commissioners as an administrative body conveyed authority broad enough to encompass what otherwise might be termed legislative functions. Even if that be so, private acts are held to have been superseded as far as is necessary to give effect to a general statutory plan of statewide applicability. Trotter v. City of Maryville, 191 Tenn. 510, 235 S. W.2d 13, 18 (1950); State ex rel. Weaver v. City of Knoxville, 182 Tenn. 510, 188 S.W.2d 329, 330 (1945). We are of the opinion that the foregoing principle applies as well to negate the effort to urge a construction of a special act which would call into question the meaning of a general act, applicable to all counties. If the Legislature had intended to confer reappraisal authority upon the administrative body of Knox County, they would have done so. We cannot presume to add to the powers of that body by adopting a statutory construction which would have the effect of injecting conflict into the general law or of reading into that law an exception in the case of counties in which the functions of government are executed by both quarterly courts and county commissioners. Further, as ably argued in the brief of counsel for appellees, there is ample prece-dential and factual basis for rejecting appellants’ challenge through the application of the doctrines of estoppel and laches. Because of the interpretation we give to T.C.A. § 67-1719, however, it is unnecessary to rest our decision on that ground; indeed, we do not do so. We hold that the reappraisal statutes, T.C.A. §§ 67-1718 through 67-1722, contemplate that the performance of the duties thereby imposed on the counties of Tennessee shall be undertaken by the legislative bodies of the counties. Those legislative bodies, under T.C.A. § 5-528, are the quarterly courts. Our holding is based upon the necessity of the general application of the statute in question, the natural implication of the language of the statute that the county judge or chairman would execute any necessary contract, and the inference from T.C.A. § 67-1706 that the “governing” (i. e., legislative) body has the responsibility of contracting on behalf of the county in property assessment matters. As their fourth assignment of error, appellants urge that the Knox County Chancery Court erred in holding that it did not have jurisdiction to review the manner in which the County Board of Equalization and the State Board of Equalization carry out their official duties. The learned Chancellor dealt with this contention of appellants: “The next question presented in the Bill of Complaint is the allegation by the Property Assessor for Knox County ‘that he has been advised, by a large number of reputable landowners and citizens of Knox County, that the Defendant, Cole-Layer-Trumble Company, has failed to follow and adhere to the appropriate statutes of the State of Tennessee with regard to real property appraisals and has failed to follow and adhere to the standards, rules and regulations formulated and adopted by the Tennessee Division of Property Assessments and approved by the Tennessee Board of Equalization -,’ While I am of the opinion that this is a question for the Board of Equalization, if this Court did have jurisdiction to review the manner in which appraisals and/or assessments are being made, the above statement and legal conclusion is insufficient to justify an evidentiary hearing.” The Chancellor held that the Knox County Chancery Court had no jurisdiction to hear such a complaint. Counsel for appellants seeks to distinguish this Court’s decisions commanding the exhaustion of administrative remedies by an aggrieved taxpayer before he is granted access to the courts for review. See, e. g., Elliott v. Equalization Board, 213 Tenn. 33, 37-38, 372 S.W.2d 181 (1963) ; Biltmore Hotel Court, Inc. v. City of Berry Hill, 216 Tenn. 62, 80, 390 S.W. 2d 223 (1965). It is argued that where the complaint attacks the constitutional validity of delegated administrative authority, the administrative review process is of no comfort to an aggrieved taxpayer because it presumes the validity of the appraisal program. We need not reach the question presented by appellants’ argument, inasmuch as we have held T.C.A. § 67-1718 to be without constitutional defect. After a reappraisal program has been completed, the duties of assessors, county boards and the State Board of Equalization are prescribed in T.C.A. § 67-1721 with the object of achieving equality and uniformity of assessment, statewide. An aggrieved taxpayer has the administrative reviews provided by T.C.A. § 67-801 et seq. and T.C.A. § 67-821 et seq., after which he may seek judicial review. Appellants have no standing for judicial review in anticipation of the manner in which these administrative agencies will perform their duties. The judgment of the Chancery Court of Knox County is affirmed, at the cost of appellants. DYER, C. J., and CHATTIN and Mc-CANLESS, JJ., concur. LEECH, Special Justice, not participating.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

COMMONWEALTH of Kentucky, Appellant, v. Robert B. HILLEBRAND and Douglas Lee Powers, Appellees. Court of Appeals of Kentucky. March 15, 1974. Rehearing Denied May 24, 1974. Ed W. Hancock, Atty. Gen., Kenneth A. Howe, Jr., Asst. Deputy Atty. Gen., Frankfort, Edwin A. Schroering, Jr., Commonwealth’s Atty., Frank Coryell, Asst. Commonwealth’s Atty., Louisville, for appellant. Frank E. Haddad, Jr., Laurence E. Higgins, Louisville, for appellees. JONES, Justice. Appellee Robert B. Hillebrand, Director of Building and Housing for the City of Louisville, was indicted under KRS 432.350 for accepting a bribe; and Appellee Douglas Lee Powers was indicted under KRS 431.160 for having been an accessory before the fact of accepting a bribe. The indictment was returned in November 1971 (the alleged offenses having occurred in September 1971), and the defendants were tried in the Jefferson Circuit Court on May 11, 1973. At the close of the evidence for the Commonwealth and upon motion of defendants’ counsel the trial court directed a verdict of acquittal. The Commonwealth now appeals seeking certification of the law. KRS 21.140. In late August 1971 Powers contacted H. M. Dunn, Jr., then president of American Building and Loan Association (hereinafter American). The two met, and Powers told Dunn that there were structural problems involving property upon which American held mortgages. At a subsequent meeting Powers told Dunn that he (Powers) could remedy the difficulties and would see that official files relating to the American property would be destroyed upon payment of $15,000. Dunn was led to understand that condemnation complaints would be filed against the American property if the money was not forthcoming. Dunn and Powers arranged a meeting with Hillebrand, who was to give assurances that the payment would result in a halt to the condemnation proceedings, at which meeting the payment was to be made. Meanwhile Powers had contacted Ed Sutherland and had told him that for a certain sum of money paid to Powers, Sutherland could obtain a certain license from the City Building and Housing Department without his taking the usual tests. The sum of money, including two marked twenty-dollar bills, was paid to Powers for the license. Members of the Louisville Police Department, with Dunn’s permission, placed recording devices in the office where the above-mentioned meeting was held on September 25, 1971; and they recorded all conversation during the meeting. At the meeting of Dunn, Hillebrand and Powers, the purpose of which was to pass $15,000 from Dunn to Powers in exchange for assurances from Hillebrand that condemnation proceedings would be stopped and files destroyed, Hillebrand stated that upon payment of $15,000 he would destroy the files and stop the condemnation proceedings. During the meeting Dunn offered the money to Hillebrand who directed that it be given to Powers. Powers, after accepting the money, made statements relative to his ability to control various members of governmental departments. Upon leaving the meeting Hillebrand and Powers were arrested. Powers possessed the $15,000 which had just been paid to him, and Hil-lebrand possessed the above-mentioned marked twenty-dollar bills, which had been given to Powers by Sutherland. At trial the court excluded all testimony and evidence relating to the Powers-Sutherland transaction and the marked money as well as all testimony and evidence relating to that portion of the taped conversation in which the parties discussed Powers’ ability to control various governmental departments. The Commonwealth first argues that the trial court should have permitted the introduction of evidence as to the Powers-Sutherland transaction and the marked money. The contention is that such evidence would tend to show a pattern of conduct that was relative to the issue of intent. That is to say that the Commonwealth contends that it would show that when illicit funds were paid to Powers he in turn paid off Hillebrand for Hille-brand’s cooperation. Appellees assert that the trial court’s ruling was proper because in all Kentucky cases in which the court has allowed the introduction of such evidence, the evidence has been only of other completed, crimes and because evidence that certain money paid by Sutherland to Powers had found its way into Hillebrand’s pocket is not evidence of a completed crime. See: Jenkins v. Commonwealth, 167 Ky. 544, 180 S.W. 961 (1915); Lee v. Commonwealth, Ky., 242 S.W.2d 984 (1951) ; and Edwards v. Commonwealth, Ky., 489 S.W.2d 23 (1972). Appellees are incorrect in their interpretation of Kentucky law. In Lee v. Commonwealth, supra, the defendant was charged with aiding and abetting the obtaining of money under false pretenses (viz., the selling of stolen meat to a store owner). Therein the Commonwealth was allowed to introduce evidence that the defendant, earlier the same day that he committed the offense, had attempted to sell meat which had been described as being similar to the stolen meat, to another store owner. Certainly the evidence was not conclusive as to another crime. It is entirely possible that the first offer was bona fide and that the defendant actually owned the meat he offered to sell to the first store owner. Therefore we will not bind ourselves by such a rule as appellees suggest, and we hold that the trial court erred in not permitting the Commonwealth to introduce evidence relating to the Powers-Sutherland transaction and to the marked money, because such evidence would tend to show a pattern of conduct that was relative to the issue of intent. The Commonwealth next contends that the trial court improperly excluded evidence relating to statements made by Powers and recorded by police, at the meeting where the $15,000 was paid, immediately preceding the arrest. In response to the Commonwealth’s contention appel-. lees assert that Powers’ statements did not relate to the crime charged and were properly excluded because they were irrelevant. In United States v. Matot, 146 F.2d 197 (1944), the Second Circuit Court of Appeals held, per L. Hand, C. J., at 199, “The exclusion of evidence, which does not too much entangle the issues and confuse the jury, merely because of its logical remoteness from the issue, is always a hazard, and is usually undesirable. It is always hard to say what reasonable people may deem logically material, and all doubts should be resolved in favor of admission, unless some definite rule, like that against hearsay, makes that impossible.” And Professor Wigmore has written that “ . . . any and every statement of an accused person, so far as not excluded by the doctrine of confessions . . . or by the privilege against self-incrimination is usable against him as an admission.” 6 J. Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law, § 1732, at 99 (3d ed. 1940). See United States v. Rouse (5th Cir.) 452 F.2d 311 (1971), citing Wig-more, supra. And the case law in Kentucky and in other jurisdictions seems to support this point of view. In Eisner v. Commonwealth, 375 S.W.2d 825 (1964), following her conviction for prostitution the appellant urged this court to reverse, claiming that the trial court had erred when it permitted a police officer to testify that appellant stated to him, while she was free on bail and awaiting trial, that “ . . . she was a common whore but was not plying her trade at that time. We observe that appellant made this remark voluntarily and at a time when she was free on bail. The remark constitutes an admission against interest having probative value tending to establish appellant’s guilt of the offense charged.” Eisner v. Commonwealth, supra, 827. We affirmed the trial court. It is, as we stated, true that the above-quoted testimony relates to the crime charged, but only in the most general way. The statement does not relate directly to the particular act for which the defendant was tried; but, rather, it relates to other past acts on her part. In Glasscock v. Commonwealth, Ky., 307 S.W.2d 188 (1957), the appellant contended that his statement which was introduced at trial was not relevant to the crime charged and should not have been admitted into evidence. The appellant had written, before trial, a letter to the girl of whom he was accused of having had carnal knowledge. The letter touched upon several topics; but it did not in any way relate directly to, or mention the act of, the alleged carnal knowledge. We held that it was not error to admit the statement into evidence, and we affirmed the conviction. And in Grace v. Commonwealth, 302 Ky. 796, 196 S.W.2d 417 (1946), on facts similar to those in Glasscock v. Commonwealth, supra, we again affirmed the trial court. Here the defendant, charged with having had carnal knowledge of a young girl, upon learning that the girl was pregnant, wrote a letter to the girl’s mother, in which letter he merely offered to pay the girl’s medical expenses and to help support the baby if the charges were dropped. We held that the statement was admissible. In Kitchen v. Commonwealth, 275 Ky. 564, 122 S.W.2d 121 (1938), the appellant had been convicted of detaining a woman against her will. We held that it was not error for the trial court to have allowed the introduction of the appellant’s statement, when told by neighbors that they had just witnessed his deed, “God forgive.” Surely this statement by the accused cannot be said to relate directly in any way whatever to the crime charged. See also Dickinson v. State, 222 Ind. 551, 55 N.E.2d 325 (1944); and State v. Dreher, 166 La. 924, 118 So. 85 (1928). We will adhere to the above-cited reasoning, and we hold that it was error for the trial court to exclude from evidence testimony as to statements made by the accused at the time of the offense charged, merely because of the logical remoteness from the issue. The Commonwealth next contends that the trial court erred when it directed a verdict of acquittal at the close of the case for the Commonwealth. The Commonwealth’s evidence showed that Hillebrand had agreed that upon payment of $15,000 to Powers, he (Hillebrand) would halt condemnation proceedings against the American property and would destroy the official files relating to the property. That Hillebrand refused to touch the money and directed that it be handed to Powers is of no consequence. Hillebrand might later receive a share of the money, or he might never receive a share of the money. The statute states, in pertinent part: “Any . . . officer ... of any . . . city . . . who takes or agrees to take any bribe to do or omit to do any act in his official capacity shall be fined . . . [etc., setting out the appropriate punishment.].” KRS 432. 350(2). In order to come under this statute it is necessary that the agreement to take the bribe occur while the one accepting the bribe is an officer. Tharp v. Nolan, 119 Ky. 870, 84 S.W. 1168 (1905). It is not necessary, however, that value accrue to the official during his term of office. It is certainly conceivable that an officer could accept a bribe whereby he himself would never receive value, but instead would direct that value be paid to friends, relatives, or to some other person or organization. Else parties could agree to a bribe to be paid, after the officer’s term had expired, to the officer or to anyone, in exchange for acts or omissions on the part of the officer during his term, and be exempt from prosecution under this section. Even though no evidence as to Powers’ statements and as to the Sutherland-Powers transaction involving the marked money was admitted into evidence, as would have been proper, the Commonwealth, at the conclusion of its evidence, had made out a case submissible to the jury. Thus it was error for the trial court to direct a verdict of acquittal at the close of the Commonwealth’s case. The law is so certified. All concur.

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Marvin Perry ROOKER, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. March 22, 1974. Rehearing Denied May 24, 1974. Dale B. Mitchell, Somerset, for appellant. Ed W. Hancock, Atty. Gen., Douglas E. Johnson, Asst. Atty. Gen., Frankfort, for appellee. VANCE, Commissioner. The appellant, Marvin P. Rooker, Jr., was convicted on June 21, 1973, in the Pulaski Circuit Court of the crime of trafficking in controlled substances and was sentenced to one year in the state penitentiary. From that judgment he appeals. On the afternoon of January 20, 1973, the Commonwealth’s Attorney prepared an affidavit to be sworn to by the Pulaski County Sheriff, Gilmore Phelps. Sheriff Phelps took this document to the home of the Pulaski County Judge, John W. Garner. Judge Garner signed the jurat which indicated that the affidavit was subscribed and sworn to before him. A search warrant was issued based upon that affidavit. During the search of the described premises, the sheriff and other officers confiscated marijuana, marijuana pipes and hashish. The appellant was one of nine people arrested. The appellant made a motion to suppress the evidence and a hearing on said motion was held on April 20, 1973. Both the sheriff and the judge testified that at no time did the judge administer an oath or affirmation to the sheriff concerning the affidavit. The judge testified that he never read the affidavit before issuing the warrant. He did not know for what items they were searching or where the premises to be searched were located. The appellant contends that the evidence was illegally seized because the State and Federal Constitutions require a determination of probable cause by an impartial magistrate before issuance of a search warrant and there can be no such determination where the magistrate does not read the affidavit upon which the warrant is based. We agree. The Bill of Rights of the Kentucky Constitution, Section 10, states: “The people shall be secure in their persons, houses, papers and possessions, from unreasonable search and seizure; and no warrant shall issue to search any place, or seize any person or thing, without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.” The Fourth Amendment of the Constitution of the United States, which was made applicable to the states under the Fourteenth Amendment in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The purpose of the affidavit is to present to the issuing authority a factual basis for an independent determination of probable cause in issuing the search warrant. No warrant should issue until an independent determination of probable cause based upon a common-sense reading of the entire affidavit has been made. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1964). Part of the protection of the Fourth Amendment consists of requiring that inferences in determining probable cause be drawn by a neutral and detached issuing authority instead of the police or government agents. United States v. Lef-kowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877 (1932); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948). Where a judge issues a search warrant based upon an affidavit which he does not read, he makes no determination of probable cause but merely serves as a rubber stamp for the police. Such action is improper even though the affidavit actually shows probable cause for the issuance of the warrant. We conclude that the search warrant should not have been issued because a determination of probable cause was not made and that the evidence obtained as a result of the search warrant was inadmissible at appellant’s trial. The judgment is reversed and the case remanded for proceedings not inconsistent with this opinion. OSBORNE, C. J., and JONES, MILLI-KEN, PALMORE, REED, STEINFELD and STEPHENSON, JJ., sitting. All concur.

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James M. SEYMOUR, Appellant, v. STATE FARM MUTUAL INSURANCE COMPANY et al., Appellees. Court of Appeals of Kentucky. March 22, 1974. Rehearing Denied May 24, 1974. D. H. Robinson, Robinson, Rechtenwald, Tackett & DeMoss, Louisville, for appellant. Joe H. Taylor, Hogan, Taylor, Denzer & Bennett, Louisville, for appellees. CULLEN, Commissioner. James M. Seymour, while a pedestrian upon a city street in Louisville, was struck by an automobile operated by Eugean Bailey, an uninsured motorist. Seymour sued his own insurance carrier, with which he carried uninsured-motorist coverage, and Bailey. At the close of the evidence the insurance carrier moved for a directed verdict on Seymour’s claims on the ground that Seymour was barred by his own negligence, and the motion was sustained. Seymour has appealed from the judgment which dismissed his action. We are reversing the judgment because in our opinion the evidence warranted submission of the case to the jury on a last clear chance issue. The accident occurred at the place where Ellison Avenue, a four-lane street running east, makes a “T” intersection with Barrett Avenue, a four-lane street which runs north and south. The streets were covered with snow and ice. The time of day was 9 a. m. Seymour crossed the area of the intersection diagonally, from a point on the east side of Barrett Avenue a few feet north of the intersection, towards a point on or near the southwest corner of the intersection. He said that he was just a step from the curb on Barrett, where the sidewalk on Barrett continues south of the intersection, when he was struck by the Bailey car. He further said that before starting across the intersection he saw the Bailey car approaching on Barrett from the north a “good block” away, which he considered sufficiently distant to permit him to cross in safety. Bailey testified that he saw Seymour from the moment the latter commenced crossing the street and he (Bailey) did not at first consider it necessary to slow his speed because Seymour had ample time to complete the crossing; however, when Seymour got almost to the curb of Barrett on the southwest corner of the intersection, Seymour turned to his left and started walking down Barrett, to the south, in the traffic lane next to the curb. Bailey then applied his brakes and attempted to cut his car to the left, but because of the snow and ice he was unable to stop or change direction, and his car slid slowly into Seymour. The substance of Bailey’s defense is that he assumed that Seymour would continue his angle of crossing and step up on the sidewalk, whereas Seymour instead changed his course and started walking down the street. Seymour’s testimony, as above noted, denied the change of course. There is some inconsistency in Seymour’s testimony as to the exact point of the accident, and some of his statements could be construed as admitting that the point of the accident was several feet south of the intersection (where Bailey said it was). These statements also could be construed, however, as meaning that the point of the accident was several feet south of the south line of Ellison Avenue, extended, rather than several feet south of the point where the curved curb at the southwest corner of the intersection terminates its arc and the curb becomes a straight line on Barrett Avenue. Under the latter construction, there is no inconsistency in Seymour’s version of the accident that he was about to step up on the curb, continuing his established angle of crossing, when he was struck. We think it is clear that Seymour was contributorily negligent as a matter of law in crossing the street other than within a crosswalk when the Bailey car was known by Seymour to be approaching (all of the evidence is that the Bailey car was driving at a slow speed). KRS 189.-570; Couch v. Holland, Ky., 385 S.W.2d 204; Satterly v. Stiles, Ky., 409 S.W.2d 820; Cassinelli v. Begley, Ky., 433 S.W.2d 651; Dickerson v. Martin, Ky., 450 S.W.2d 520. We find no merit in Seymour’s contention that because at the very end of his diagonal trip across the street he entered into the area of an unmarked crosswalk, he brought himself under the protection afforded by KRS 189.570 to a pedestrian in a crosswalk. It is obvious, we think, that-the statute refers to pedestrians crossing in a crosswalk, not to those who enter upon the crosswalk only at the termination of the act of crossing. Seymour’s contributory negligence did not warrant a directed verdict against him, however, if there was a submissible issue of last clear chance. We think there was such an issue. Under Seymour’s version of the accident, he did not deviate from the straight path in which he crossed the intersection and he was about to step upon the curb when he was hit. Admittedly, he had his back to Bailey all of the time and it would be reasonable to find that Bailey knew Seymour was inattentive. So if Seymour’s testimony be accepted, Bailey could be found to have had a last clear chance. See General Telephone Company v. Yount, Ky., 482 S.W.2d 567; Nixon v. Morris, Ky., 433 S.W.2d 364; Marshall v. Merrifield, Ky., 431 S.W.2d 870; Payne v. Zapp, Ky., 431 S.W.2d 890; French v. Mazzoli, Ky., 433 S.W.2d 122; Shea v. Bruner, Ky., 426 S.W.2d 482; Fenwick v. Daugherty, Ky., 418 S.W.2d 243, and Frank v. Silvers, Ky., 414 S.W.2d 887. Even under Bailey’s version of the accident a permissible finding of last clear chance would be precluded only if it be considered that Seymour did not get into a position of peril until he turned from his crossing path and started down the street, at which time it was too late for Bailey to do anything to avoid the accident. We are not persuaded that such a consideration would be valid, since Seymour might reasonably be thought to be in peril so long as his act of crossing the street remained uncompleted, in view of his previous disregard for traffic rules, his inattentiveness to approaching vehicles, and the slippery and snowy condition of the street. We are reversing the judgment for error in not permitting the case to go to the jury under a last clear chance instruction. Seymour asserts additional error in the refusal of the trial court to permit a police officer to testify as to the existence of an unmarked crosswalk, by customary usage, extending straight across Barrett Avenue at the south end of the intersection. It is a sufficient answer, as hereinbefore stated, that Seymour was not crossing the street in any crosswalk, marked or otherwise. However, we are impelled to point out that the existence of an unmarked crosswalk at an intersection is a matter of statute rather than custom. See Ellis v. Glenn, Ky., 269 S.W.2d 234; Clark v. Smitson, Ky., 346 S.W.2d 780; Frank v. Silvers, Ky., 414 S.W.2d 887. The judgment is reversed for further proceedings in conformity with this opinion. All concur.

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Henry GAILEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. April 19, 1974. Anthony M. Wilhoit, J. Vincent Aprile, II, Frankfort, for appellant. Ed W. Hancock, Atty. Gen., Robert W. Riley, Asst. Atty. Gen., Frankfort, for ap-pellee. REED, Justice. The appellant, Henry Gailey, was indicted for killing John Noe and wounding John Noe’s son, Bert Noe. The jury found Gailey guilty of manslaughter for the killing of John Noe and fixed his punishment at fifteen years’ confinement in the penitentiary; the jury also found him guilty of maliciously shooting and wounding Bert Noe and for this offense fixed his punishment at two years’ confinement in the penitentiary. Both the appellant and the Commonwealth agree that the trial court ordered the sentences to be served concurrently. Appellant asserts prejudicial error occurred when the trial judge refused to direct a verdict in his favor and also when the trial judge denied him the right to cross-examine Clara Lumpkins, a codefendant. We are unpersuaded that prejudicial error warranting a reversal was committed in either instance. The appellant Gailey and two friends drove to Clara Lumpkins’ house. Gailey took his pistol with him into her house because, he said, he wanted to prevent its possible theft from his car. Shortly after the three arrived at the Lumpkins house, the decedent, John Noe, his son, Bert Noe, and a third man also arrived and joined the others. According to the evidence, all of the men, along with Clara Lumpkins and her daughter Rita, then started dancing and drinking and “fooling around.” The evidence is contradictory concerning what happened next. It appeared that Bert Noe and Gailey had an argument, but each accused the other of being the aggressor. Gailey said that John Noe came from another room holding a knife in his hand while the argument was in progress. According to Bert Noe, the argument began again and Gailey “took a swing at him.” Bert Noe said that he then knocked Gailey down and began to hit him with his fists; at this point John Noe begged his son to let Gailey up. Bert said he complied with his father’s entreaties. Also, according to Bert Noe, when he and Gailey got up, Gail-ey produced a pistol and shot him in the right leg. Whereupon, he called out to his father that he had been shot, and the father began to move toward him from across the room. At this point Gailey wheeled and shot John Noe and then turned back to Bert Noe and shot him again hitting him in the left leg. According to the prosecution’s evidence, Gailey then turned again toward the elder Noe and shot him a second time. As a result of this, John Noe staggered out the front door and fell off the porch. He died as a result of his wounds. Trooper Bill Riley investigated the shooting. Clara Lumpkins made a written statement that after Bert Noe and Gailey began to fight she got her gun and “just started shooting.” She was indicted as an accessory after the fact. Gailey and Clara Lumpkins were tried together. Gailey claimed self-defense. He testified that Bert Noe precipitated the original disagreement at which time John Noe appeared with a knife. Gailey said he was afraid for his life and that John Noe “had been in trouble” and “murdered one or two.” At the trial, Trooper Riley read Clara Lumpkins’ statement to the jury. Clara testified in her own defense and was examined by her attorney and cross-examined by the Commonwealth’s attorney. Although she contradicted her previous statement concerning her use of a pistol on the occasion and stated that she did not see the whole affray, she undertook to bolster Gailey’s self-defense plea by testifying that she did see a knife in John Noe’s hand immediately before he was shot. Neither her direct examination nor her cross-examination incriminated Gailey in any particular. When Gailey’s counsel undertook to ask a leading question in his cross-examination of her the prosecutor objected, and the trial judge admonished the cross-examiner not to ask leading questions. When Gail-ey’s counsel made a general objection to that ruling, the trial judge stated: “Your purpose is just as direct.” Gailey’s counsel then proceeded with his examination of the witness and elicited from her additional favorable testimony directly supporting Gail-ey’s self-defense plea. Gailey argues that he was entitled to a directed verdict because all of the evidence indicated that his plea of self-defense was conclusively established. In Wheeler v. Commonwealth, 472 S.W.2d 254 (1971), we considered when a directed verdict of acquittal is required where the defendant relies on a plea of self-defense. In Wheeler we were confronted with another instance of a killing during the course of a drinking party. From the total evidence in this case, we find that a jury could reasonably infer that one or more of the several elements that qualify or enter into the conclusive establishment of the legal right of self-defense were missing as was also true in Wheeler. Among those elements are the reasonableness of the defendant’s belief of imminent danger of great bodily danger or loss of life and the character of the reasonableness of the judgment of the necessity to shoot four times to avert that danger. Under the circumstances related by the contradictory evidence, we think the trial court properly submitted the issue of the credibility and acceptability of the plea of self-defense to the jury for its determination. Although the Public Defender in his brief in behalf of appellant directly asserts that the right of cross-examination was denied by the trial judge, the record establishes that this assertion is simply not true. Clara Lumpkins was the converse of a hostile witness so far as Gailey was concerned. Gailey admitted the killing and the wounding and undertook to excuse his conduct by the claim of self-defense. Clara Lumpkins testified in her own behalf and as a codefendant with Gailey. Nothing in her testimony even remotely incriminated Gailey in any particular, but she surely supported his plea of self-defense. If Gailey’s attorney’s examination of her could truly be described as “cross” examination, then, ordinarily, leading questions are allowable. Assuming then that the trial judge’s action in directing the examining attorney not to ask leading questions was error, we nevertheless, find no indication preserved in the record that Gailey was in any way prejudiced. The right to confront any witness and elicit evidence from him and to contradict and impeach him is in the essence of due process, a constitutional right. -The right to ask leading questions in appropriate circumstances, however, is ac-tually an interrogation technique and is not of constitutional proportions. In Chambers v. State, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), on which appellant’s brief so strenously relies, a completely different problem was involved. Chambers was indicted and tried for murder by the state of Mississippi. Another man, named McDonald, made, but later repudiated, a written confession of the murder for which Chambers stood accused. McDonald also orally admitted the killing on three separate occasions, each time to a different friend. At Chambers’ trial, the prosecution did not call McDonald as a witness. When Chambers attempted to call McDonald as a defense witness and elicit testimony from him and impeach and contradict him, the attempt failed because of the combined effect of two rules of Mississippi law. The first rule applied by the trial court was the Mississippi “voucher” rule that a party could not impeach his own witness. The applicable rule in Kentucky is the direct converse. > CR 43.07. In our jurisdiction, a witness' may be impeached by any party without regard to what party produced him. The second rule applied to Chambers’ detriment was that the proffered testimony of the three persons to whom McDonald, spontaneously and as a close acquaintance, confessed was inadmissible in evidence because it was hearsay. The Supreme Court regarded the application of the “voucher” rule as error but refused to reverse on that ground alone. The hearsay ruling was also declared error, and the combination of these errors was determined to have resulted in a denial of due process. In the case sub judice, Gailey had ample , opportunity to elicit testimony, confront all witnesses, impeach and contradict any witness, and there is no complaint of the exclusion of any relevant evidence. None of the determinative elements in Chambers is present. We find no significant impingement of a basic constitutional right. The judgment is affirmed. All concur.

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COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. S. E. SEXTON and Dorothy Sexton, Appellees. Court of Appeals of Kentucky. April 19, 1974. Carl T. Miller, Jr., Gen. Counsel, Dept, of Highways, Frankfort, Tyler C. Bourne, Byrd & Alexander, Paducah, Kenneth P. Alexander, Paducah, for appellant. Raymond B. Dycus, Smithland, for ap-pellees. CATINNA, Commissioner. S. E. Sexton and his wife, Dorothy Sexton, owned an ell-shaped tract of approximately twenty-one acres located at the intersection of U.S. Highway 62-641 and Kentucky 917, approximately 800 feet west of the Cumberland River Bridge. One side of the tract fronted on Kentucky 917, and between 200 and 225 feet fronted on U.S. Highway 62-641. At the intersection, Sexton owned a grocery store and filling station, and extending eastwardly along Highway 62-641 toward the river there were located a frame residence and office and a motel consisting of three units. There were three cottages facing Kentucky 917. For the purpose of widening Highway 62-641 so that it would be a four-lane road from the Cumberland River bridge to the bridge at the Tennessee River, the Department of Highways condemned an area of 0.21 acres which consisted of all the frontage on Highway 62-641 and extended northwardly along Highway 917 approximately 72 feet, the tract being wider at the east and west ends than it was in the center. There were included in the land taken the store building and service station; the motel was not taken. The tract was taken for the purpose of building an access road from Kentucky 917 in an eastwardly direction across Sexton’s land and onto another tract. The necessity of the access road was brought about by the fact that after the department completed the project it erected a chain-link, access-control fence along U.S. 62-641 from the bridge west to 917 and along 917 for a distance of 72 feet. The access road was to enable Sexton to continue to use the residence, office, and motel located on his property which had formerly fronted on Highway 62-641. However, as the access road took the parking area, it was not possible for occupants to park in front of the motel without blocking the road. There was a bluff to the rear of the motel which restricted parking in that area. By way of summary, the department took all of Sexton’s frontage on U.S. 62 and erected a barrier in the form of an access fence which denied him the use of this property in conjunction with the highway. Sexton also lost the grocery store building, service station, and parking area for the residence and motel units. There was a county-court award of $44,500 which was appealed by the department with a resultant circuit-court verdict of $50,000 upon which verdict judgment in the amount of $44,500 was entered. The department asserts as the only error the fact that “the verdict is palpably excessive and is not supported by evidence of sufficient probative value.” The evidence as to the values of the property before and after the taking, together with the verdict of the jury, was as follows: DIFFER-WITNESS BEFORE AFTER ENCE Gilliam $ 92,000 $64,000 $28,000 Sloan 88,850 65,375 23,475 FOR APPELLEES Sexton 150,000 75,000 75,000 Smith 135,500 90,000 45,500 Stegar 145,500 91,000 54,500 Fugate 125,000 75,000 50,000 VERDICT Jury 140,000 90,000 50,000 The Highway Department devoted approximately seven pages of its twelve-page brief in quoting evidence given by Sexton’s witnesses in an effort to disqualify them because they did not give the exact area of the tract taken. However, each of the witnesses testified that he was familiar with the property before and after the taking and that he knew what property was being taken. In fact, the evidence indicates that these witnesses had been upon the property after the department had removed the store building and marked the tract which it proposed to use. The department does not question the qualification of these witnesses as experts or as competent appraisers of real estate, and we do not feel that the fact that the witnesses did not state with exactitude the area of the tract being taken has any substantial bearing upon their evidence or opinions expressed. In truth, if the department had not made its maps and plans available, its own witnesses would have been unable to give the exact area of the tract that was taken. The values testified to by Sexton’s witnesses were supported by substantial facts concerning the before and after values which they gave in the evidence. Upon the testimony of these witnesses, there was sufficient evidence of probative value to support the verdict of the jury, and it will not be disturbed. Com., Dept, of Highways v. Tyree, Ky., 365 S.W.2d 472 (1963); Com., Dept, of Highways v. Stocker, Ky., 423 S.W.2d 519 (1968); Com., Dept, of Highways v. Griffin, Ky., 465 S.W.2d 271 (1971); Com., Dept, of Highways v. Snedegar, Ky., 466 S.W.2d 954 (1971). Cf. Com., Dept, of Highways v. Friend, Ky, 500 S.W.2d 405 (1973). The judgment is affirmed. All concur.

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Leon SANDLIN et al. Appellants, v. CITY OF RICHMOND et al. Appellees. Court of Appeals of Kentucky. April 19, 1974. Thomas D. Shumate, Shumate, Shumate & Flaherty, Richmond, for appellants. John D. Sword, Sword & Floyd, Richmond, for appellees. STEINFELD, Justice. This is an appeal from a judgment which dismissed that part of a complaint which sought (1) to permanently enjoin the City of Richmond from operating a sanitary landfill and dumping facility, and (2) to have permits issued by the Kentucky Department of Health for the operation of such facilities declared invalid. We affirm. Richmond had previously operated an incinerator garbage disposal system but was prohibited from operating it by the Kentucky State Board of Health. On December 2, 1970, Richmond filed an application with the Kentucky Department of Health seeking permits to construct and conduct a sanitary landfill facility on land which it proposed to lease from Mr. and Mrs. Hugh Lovett. The application disclosed the types and sources of materials to be disposed of, the types and sizes of equipment to be used, the. soil conditions, method of operation, pollution and flooding probabilities, and other information. On December 16, 1970, Richmond obtained construction and operation permits and six days later entered into a lease with the Lovetts for the use of their land. The appellants, citizens of Madison County, argue that the trial court erred in not permanently enjoining Richmond from operating this facility because such operation from its inception was a public nuisance and it cannot be operated without violating the rules and regulations of the Kentucky Department of Health. After hearing conflicting evidence, the trial court found, “ * * * that there was no evidence to show that the operation of the landfill site was being conducted so as to be a nuisance at this time. Three exhibits filed in the record * * *, indicate that the landfill is being closely supervised by the public health officials and, as of March 18, 1971, was meeting all legal requirements of the State Health Department in regard to a sanitary landfill.” We cannot say that these findings, if erroneous at all, were clearly erroneous. CR 52.01. They will not be disturbed. Ward v. City of Ashland, Ky., 476 S.W.2d 205 (1972). The next argument is that the permits issued to Richmond are invalid because there was no public hearing held prior to their issuance. KRS 211.700 to 211.730, which were the statutes relating to solid waste disposal, required no such hearing. KRS 211.713 provided: “Permit required for construction or operation of solid waste disposal site or facility. — No person shall establish or construct, or operate, maintain or permit the use of a new solid waste disposal site or facility after June 13, 1968, without first having obtained from the department (of health) a permit to establish or construct the site or facility or a permit to maintain and operate the site or facility pursuant to rules and regulations promulgated by the board (of health).” The judgment is affirmed. All concur. . KRS 211.700-211.730 were repealed by Acts 1972 (1st Ex.Sess.), Ch. 3, Sec. 93, effective January 1,1973.

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Caselaw Access Project

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David Charles BANKS et al., Appellants, v. Ira WILHOITE et al., Appellees. Court of Appeals of Kentucky. April 19, 1974. William A. Young, Herbert D. Liebman, Frankfort, for appellants. William M. Johnson, Frankfort, for ap-pellees. CULLEN, Commissioner. On February 19, 1963 Ira Wilhoite and wife purchased from Robert Lee Penn a 5.81-acre parcel of Penn’s farm, and on the same day Atmore Wilhoite (Ira’s brother) purchased from Penn a 4.65-acre parcel of Penn’s farm adjoining Ira’s parcel on the east. The deed for each parcel described the parcel as “fronting on Cliff-side Drive, a street heretofore dedicated for public use,” and the description in each deed fixed the north line of . Cliffside Drive as the southern boundary of the parcel conveyed. Penn died in 1968 and in 1969 his heirs sold the remaining portion of his farm, at auction. David Banks and his wife purchased the portion south of the Wilhoite parcels. The deed from the heirs to the Bankses made no reference to Cliffside Drive and it purported to convey to the Bankses all the land south of the Wil-hoites’ southern boundary line. The Bankses subsequently refused to recognize the existence of Cliffside Drive as a public street and made their position clear by locking a gate. The Wilhoites then brought the instant action seeking a declaration that Cliffside Drive is a dedicated public street. After a trial of the issues, the circuit court entered judgment declaring that the deeds from Penn to the Wilhoites constituted a dedication of Cliffside Drive to public use and that Penn’s heirs and the Bankses as their grantees were estopped to assert that Cliffside Drive is not a public street. The court found that Cliffside Drive was a street 35 feet in width extending from Sullivan Lane (a public road) on the west of the original Penn farm a distance of 2448 feet in an easterly direction along and adjacent to the southern boundary of the Wilhoite parcels. The Bankses and the Penn heirs have appealed from that judgment. The record discloses that “Cliffside Drive” had its genesis in a plat which Robert Lee Penn had prepared, prior to 1963, for subdivision of his farm into building lots and baby farms. Cliffside Drive was platted as a street 35 feet in width, running in an easterly direction from Sullivan Lane along the southern boundary of a tract platted as “Farm No. 4” and along the northern boundary of a tract designated “Penn Acres No. 2.” The plat never was recorded, but when the Wilhoites were negotiating with Penn he showed them the plat, and at that time the boundaries of the platted street were marked on the ground with “pegs”. The parcels purchased by the Wilhoites were the west and middle thirds (approximately) of the tract platted as “Farm No. 4,” although they were not purchased by that designation or described in the deed by any reference to the plat. The parcel subsequently purchased by the Bankses is substantially what was platted as “Penn Acres No. 2,” plus the disputed street area. The Wilhoites purchased and used their parcels for farm purposes and did not reside there, so their access requirements were minimal. Shortly after they bought the parcels Penn built a fence along their southern boundary and used the land to the south, including the street area, as pasture land. The Wilhoites testified that this was by agreement. The fence had an unlocked gate at the entrance from Sullivan Lane, and two gates into the Wilhoite parcels. The Wilhoites used the street area as their means of access but the street never was surfaced or improved. The appellants admit that the dedication of land for a use such as a street rests primarily and basically upon the intention of the owner-dedicator, and that the act of dedication may be by deed. See City of Owensboro v. Muster, 111 Ky. 856, 64 S.W. 840. We have no difficulty in finding ample evidence of intention to dedicate in the flat-out statements in Penn’s deeds to the Wilhoites that Cliffside Drive is “a street heretofore dedicated for public use,” and in the use in those deeds of Cliffside Drive as a boundary of the conveyed parcels. The fact that the dedication is by way of reference in the deeds, rather than by express dedicating language, is not an obstacle, because there is ample authority for the proposition that a dedication may be made by a sufficient reference in a deed to a street on the grantor’s premises. See 26 C.J.S. Dedication § 15, p. 427. See also Wright v. Williams, Ky., 77 S.W. 1128. We do not say that any reference will be enough; we simply hold that the particular reference here involved was ample to show the required element of intent. We do not construe the opinion in Foulk v. City of Louisville, 270 Ky. 828, 110 S.W.2d 665, as expressing a contrary view. The holding there, that a reference in a deed to “the first fifteen-foot alley” west of a certain street did not constitute a dedication, meant only that the particular reference was not sufficient to show the intent to dedicate. The fact that the way involved in the Foulk case was an alley is significant, because alleys more frequently are intended to be private or for limited use and thus there is less basis for an inference of the intent to dedicate for public use. See 23 Am.Jur.2d, Dedication, sec. 23, p. 21. As concerns the matter of acceptance of the dedication, the rule is that in case of a dedication by a plat, or by a sale by reference to a plat, no acceptance is required to make the dedication effective as to a grantee. See Salyers v. Tackett, Ky., 322 S.W.2d 707; Potter v. Citation Coal Company, Ky., 445 S.W.2d 128; Volpen-heim v. Westerfield, 216 Ky. 157, 287 S.W. 545; Burnett v. Henderson, 238 Ky. 431, 38 S.W.2d 262 ; 26 C.J.S. Dedication § 52, pp. 530, 531; 26 C.J.S. Dedication § 58, p. 543. We think the same rationale is applicable to a dedication by reference in a deed, because in either case elements of es-toppel are involved. We do not consider it fatal to the dedication in the instant case that the deeds to the Wilhoites did not define the width or length of Cliffside Drive. The width and length of a dedicated street depend on the intention of the grantor as manifested in the dedication instrument and gathered from the surrounding circumstances. 26 C.J.S. Dedication § SI, pp. 527, S28. We think it was permissible and appropriate for the circuit court to resort to the proposed plat, as a surrounding circumstance, to determine the width and length of Cliffside Drive. The judgment is affirmed. All concur.

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Caselaw Access Project

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Thea CALLAHAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. April 19, 1974. Anthony M. Wilhoit, Public Defender, J. Vincent Aprile, II, Asst. Public Defender, Frankfort, for appellant. Ed W. Hancock, Atty. Gen., George Geoghegan, III, Asst. Atty. Gen., Frankfort, for appellee. PALMORE, Justice. Thea Callahan and Kenneth Harris were jointly indicted and tried under KRS 433.-140 for the armed robbery of a liquor store in Lexington. Each was found guilty, Harris as the principal perpetrator of the offense and Callahan as an aider and abettor. Callahan appeals from the judgment sentencing him to 10 years’ imprisonment in accordance with the verdict. According to the evidence the jury was authorized to and obviously did believe, on the night of February 2, 1972, Harris entered the store alone, and while he was browsing through the merchandise on display Callahan came in. Harris then proceeded to hold up the store employes at gunpoint and placed $528 in currency from the cash register into a brown paper bag. Callahan, though present, “just stood there” with his hands in his pockets “and watched the whole thing,” saying naught and making no overt movement. Harris made the employes lie face down on the floor and said, “Don’t get up until we are gone.” When the employes got up from the floor both men were gone. Shortly thereafter Harris was identified from photographs at the police station. Callahan was identified by one of the employes about a year later in a police line-up. At the time of the robbery Harris was living in Lexington with a girl named Faye. According to Faye’s testimony, both Harris and Callahan had spent the afternoon of February 2, 1972 “drinking all day and in and out” until about 10:00 P.M., at which time they departed in Harris’ automobile. They returned some two hours or more later and “had a brown paper bag with money in it,” which they divided on the following morning and got “$200 and some dollars apiece from it.” Also during the following morning at Faye’s place Harris and Callahan, having procured a morning newspaper in which the robbery was reported, talked about the newspaper article and laughed about it “because it said something about they could pass for brothers.” Faye did not report any of this information to the police until November of 1972, when she and Kenneth had a falling out and separated. Callahan denied ever having been in Faye’s home or in the liquor store that was robbed. In view of the evidence we are of the opinion that appellant’s contention that he was entitled to a directed verdict of acquittal does not merit an extended discussion. While it may be true that mere presence at the scene of a crime during its commission will not suffice to prove aiding and abetting, nor will a mere association with the principal perpetrator before, during or afterward, the testimony in this case proves much more than that. Two additional circumstances, for example, are the division of the money and the fact that Callahan denied and thus sought to conceal his presence. If in truth he was there, as the jury was entitled to believe, his very denial of it was an indication of guilt. There was no basis for an instruction on the theory that Callahan may have been no more than an accessory after the fact, and it would have been an error to give it. Cf. Reed v. Commonwealth, 270 Ky. 447, 109 S.W.2d 1198, 1199 (1937). “The offense of being an accessory after the fact is a substantive crime which cannot have its beginning until the principal offense has been committed, and is not a lesser degree of the principal crime.” Wharton’s Criminal Law and Procedure, § 112 (1974 Supp.); State v. McIntosh, 260 N.C. 749, 133 S.E.2d 652, 655 (1963); State v. Key, Mo., 411 S.W.2d 100, 103 (1967). The judgment is affirmed. All concur.

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NORTON COAL CORPORATION, a Kentucky corporation, Appellant, v. Louis AUSTIN, etc., et al., Appellees. Court of Appeals of Kentucky. April 19, 1974. Frank C. Ingraham, Nashville, Tenn., for appellant. Albert W. Spenard, Madisonville, for ap-pellees. CULLEN, Commissioner. On June 11, 1968, Norton Coal Corporation brought the instant action against various officers, representatives and members of the United Mine Workers and its District No. 23, seeking to recover damages for disruption of business resulting in the loss of contracts for the mining and sale of coal, alleged to have been caused by wrongful acts of the defendants committed on June 12, 1958. The defendants pleaded the five-year statute of limitations, KRS 413.120, and moved for summary judgment which was granted. The plaintiff has appealed from that judgment contending that the ten-year statute, KRS 413.160, applies, rather than the five-year statute. The ten-year statute, KRS 413.160, is in the form of a catch-all provision, as follows: “An action for relief, not provided for by statute, can only be commenced within ten (10) years after the cause of action accrued.” The five-year statute, KRS 413.120, has a number of subsections covering various kinds of actions. Subsection (7) covers: “An action for an injury to the rights of the plaintiff, not arising on contract and not otherwise enumerated.” The appellant concedes that its action sounds in tort, but argues that the damages it seeks to recover arose on contract in that the damages resulted from loss of contracts which the plaintiff had with users of coal. We think it is clear that the words “not arising on contract” in subsection (7) of KRS 413.120 refer to “action” rather than to “injury”, and that the mere fact that the damages are related to contract does not preclude application of the statute. It is true that the Federal District Court for the Western District of. Kentucky, in a similar factual situation, held that the 10-year statute applied rather than the five-year statute. See Riverside v. United Mine Workers of America, 6th Cir., 410 F.2d 267. However, in that case, the argument for application of the five-year statute was addressed only to subsection (2) of KRS 413.120, which covers actions “upon a liability created by statute,” and no mention was made of subsection (7). The Federal District Court correctly held that subsection (2) did not apply, and from that reasoned that the catch-all ten-year statute applied. We do not accept that decision as authority for the nonapplication of subsection (7) of KRS 413.120. The appellant’s reliance on United Mine Workers of America v. Meadow Creek Coal Company, 6th Cir., 263 F.2d 52, is we think also misplaced. There the three-year limitation statute of Tennessee, T.C.A. § 28-305, held inapplicable covered “injuries to personal or real property.” The type of injury there involved was the same as in the instant case, and of course it did not consist of an injury to tangible property, to which the Tennessee statute obviously was limited. Our statute, however, covers injuries to “rights,” which is broad enough to cover intangible rights of the kind here in question. The judgment is affirmed. All concur.

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Caselaw Access Project

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Bruce DODSON, as Attorneys in Fact for and on Behalf of the Subscribers at Casualty Reciprocal Exchange, Appellant, v. Ruth KEY et al., Appellees. Court of Appeals of Kentucky. April 19, 1974. Ben T. Cooper, Mayer, Cooper & Kiel, Louisville, for appellant. Clarence Bartlett, Bartlett, McCarroll & Munley, Owensboro, for appellees. PALMORE, Justice. This case presents two liability insurance questions not heretofore decided by this court, which are: 1. An insurance company settles a tort claim against its insured, though it is uncertain whether the coverage of its policy applies. The policy contains a subrogation clause providing, “In the event of any payment under this policy, the company shall be subrogated to all the insured’s rights against any person or organization,” etc. Does the company have a cause of action against another insurer based upon the premise that its own policy was not applicable and the other insurer’s policy was? We answer that question “yes.” 2. An automobile liability insurance policy undertakes to pay on behalf of the insured all sums which he “shall become legally obligated to pay as damages because of bodily injury . . . sustained by any person, caused by accident and arising out of the ownership, maintenance or use” of an automobile described in the policy. It defines the word “use” as follows: “Use of the automobile for the purposes stated includes the loading and unloading thereof.” While using a truck covered by the policy, and for an authorized purpose thereunder, employes of the insured deliver a load of merchandise to a customer of the insured and negligently leave it stacked in a dangerous condition on the customer’s front porch. As a result of this negligence the pile of merchandise falls over and injures the customer’s daughter while she is attempting to move it on the day following the delivery. Is the insurer liable under the loading and unloading provision of the policy? Our answer to this question also is “yes.” On the morning of October 6, 1959, employes of the Webster County Lumber Company delivered a load of sheetrock to the home of Coleman Key in Providence, Kentucky, and stacked it edgewise against the wall on the porch. Some 24 hours later, when Mr. Key’s daughter Ruth and her sister-in-law attempted to remove a sheet of the material, the entire stack fell over and injured Ruth. She brought suit against the lumber company on the theory that her injury had been caused by the negligence of its employes in stacking the sheetrock in such a manner that it was likely to fall over. She lost the suit in the trial court, but the judgment was reversed on a memorandum opinion by this court, following which the lumber company’s public liability carrier, Casualty Reciprocal Exchange (represented by the appellant herein, Bruce Dodson, and for that reason hereinafter called Dodson), settled the claim for $4000. Meanwhile it had brought this suit against Ohio Casualty Insurance Company, the appellant herein, joining Ruth Key and its insured, the lumber company, as parties defendant, for a declaratory judgment to the effect that Ohio Casualty’s policy covered the claim. It now appeals from a judgment in favor of Ohio Casualty. The public liability policy issued by Dodson excluded the lumber company’s operations in the loading or unloading of automobiles. Ohio Casualty’s automobile liability policy covered its liability for bodily injury and property damage “arising out of the ownership, maintenance or use of the automobile” including “the loading or unloading thereof.” The policies were therefore mutually exclusive with respect to the particular liability involved in this case. The trial court held that the accident causing Miss Key’s injury did not arise out of the unloading of the vehicle and was not covered by Ohio Casualty’s policy, bypassing the threshold questions of whether Dodson had a justiciable cause of action against Ohio Casualty and whether in settling the claim against the lumber company it was a “volunteer.” Since we have reached a different conclusion, it is necessary to deal with the latter questions as well. Ohio Casualty relies largely on Fidelity & Casualty Co. v. Martin, 163 Ky. 12, 173 S.W. 307 (1915), and upon the fundamental theory that one who is not party to a contract can have no rights under it. The Fidelity & Casualty case involved an early form of automobile liability insurance under which the insurer undertook to “indemnify” the insured against loss from any liability imposed upon him by law for damages on account of death or bodily injuries caused by the use, ownership or maintenance of the covered automobile. “Loss” was defined in the policy as “a loss that the assured has actually sustained by the assured’s payment in money . of a final judgment rendered after a trial in a suit against the assured,” etc. After the insured party had had an automobile accident in which a pedestrian was injured, the pedestrian recovered a verdict and judgment against him for $4500 but was unable to collect it and so brought suit against the insurance company. Under the terms of the policy and the classic theory of indemnity the court held that because the insured had not paid the judgment the insurance company was not liable. Such a result would not, of course, occur under a modern insurance policy similar to Ohio Casualty’s contract with the lumber company. “It is well settled, under both federal and state declaratory judgment acts, that the remedy of declaratory judgment is a proper one for the determination of questions arising from the construction and operation of insurance policies . . . the declaratory judgment action has been found to be a convenient method of determining controversies between insurance companies themselves, either by direct actions or by joinder or intervention, with respect to such questions as which of two or more insurers is liable under its particular policy and their respective liabilities and obligations.” 22 Am.Jur.2d Declaratory Judgments § 40 (1965). “An insurer may obtain a declaratory judgment to determine the obligation of several insurers under their respective liability policies where there is a controversy as to which policy covers the accident.” Id., § 46. See also Henderson v. Selective Insurance Company (DC WD Ky., 1965), 242 F. Supp. 48, and Commercial Standard Ins. Co. v. American Emp. Ins. Co. (6 Cir. 1954), 209 F.2d 60, for discussion of the rights of an insurer by way of subrogation to those of the insured. It is our opinion that Dodson clearly had standing to maintain this declaratory judgment action against Ohio Casualty. Ordinarily one who discharges the debt of another without a legal or moral obligation to do so is considered a volunteer and will not be subrogated to the discharged debtor’s rights against another. See, for example (though we are not at all satisfied that it represents a sound application of the principle), Bonnie v. Maryland Casualty Co., 280 Ky. 568, 133 S.W.2d 904 (1939). In any event, it was held in Commercial Standard Ins. Co. v. Amer. Emp. Ins. Co. (6 Cir. 1954), 209 F.2d 60, that the “volunteer” theory does not apply to “conventional” subrogation, which is founded upon contract or agreement, as distinguished from “legal” subrogation, which is founded on equitable principles of restitution and unjust enrichment, and that payment by one insurer of more than it owed under its policy did not prevent recovery from another insurer which owed the excess. Quite aside from the question (which we need not decide) of whether the “volunteer” principle applies at all to “conventional” subrogation, it is well settled that one who pays the debt of another is not a volunteer if in so doing he is acting to protect some interest of his own. Evans’ Adm’r v. Evans, 304 Ky. 28, 199 S.W. 2d 734, 737 (1947). “It would seem that one acting in good faith in making his payment, and under a reasonable belief that it is necessary to his protection, is entitled to subrogation, even though it turns out that he had no interest to protect.” 50 Am.Jur. Subrogation § 23 (1944). And so, under a factual situation quite analogous to this, a district appellate court of California held in a well-reasoned opinion that an insurer which had paid part of a judgment its policy did not bind it to pay was entitled to recover from another insurer whose policy did cover the loss. Employers Mut. Liab. Ins. of Wis. v. Pacific Ind. Co., 167 Cal.App.2d 369, 334 P.2d 658 (1959). We find ourselves in agreement with the philosophy expressed by the following passage from that opinion: “Equity would be performing a very poor function if by refusing under the circumstances of this case to consider plaintiff as the subrogee of Atkinson, it permitted defendant to escape its clear liability to Atkinson. Where, as here, a reasonable doubt exists as to his own liability to a third party, a person making a payment to that party which should have been made by a second party, cannot as to such payment be considered a volunteer or interloper.” 334 P.2d at p. 664. Hence it is our opinion that in making a good-faith settlement of the claim against the lumber company under circumstances in which it had reasonable cause to believe it might be held liable, Dodson was not a volunteer. There has been a great deal of litigation throughout the country over the scope of the standard clause in automobile liability insurance policies defining “use” as including the “loading and unloading” of the insured vehicle. Strangely, it seems not to have come up in this court until now. Many courts have chosen between the conservative “coming to rest” theory and the more liberal “complete operation” doctrine. For comprehensive discussions and compilations of authority, see Couch on Insurance 2d, § 45-123 et seq. (1964); Apple-man, Insurance Law and Practice, § 4322 et seq. (1962), and Supplement (1972); Annotation, Risks within “loading and unloading” clause of motor vehicle liability insurance policy, 95 A.L.R.2d 1122 (1964), supplementing an earlier annotation at 160 A.L.R. 1259; and 7 Am.Jur.2d Automobile Insurance § 87 et seq. (1963), and Cumulative Supplement (1973). The necessity of choosing between these two viewpoints, or some variation of one or the other, originates in the premise that the accident must have occurred during what is determined to be the process of loading or unloading. Cf. 7 Am.Jur.2d Automobile Insurance § 88. That may be a valid premise if the phraseology of the contract can be reasonably construed as providing coverage only for accidents that happen during the time or times the vehicle is being used, but when the policy specifically covers accidents “arising out of” its use, as Ohio Casualty’s policy in this case does, it seems clear to us that it is the causative negligence, rather than the injurious consequences, that must occur in the use of the insured vehicle. Even under the “coming to rest” doctrine the act of stacking the materials on the customer’s porch was a part of the process of unloading the truck. That was the negligent act which caused the injury. By any logic, the injury therefore arose out of the unloading of the vehicle and was covered by Ohio Casualty’s policy. “In the case at bar, the injury was allegedly caused by the negligent placing of the parcel. The cases seem to agree that the process of unloading includes at least the entire operation during which the article is lifted and removed from the vehicle up to the moment when the article has actually come to a place of rest outside the vehicle and the connection of the vehicle with the process of unloading has ceased. In the case at bar, we think unloading began, when the insured lifted the parcel from the truck, and ended when insured placed the parcel in front of plaintiff’s door. The causative negligence charged is negligence which occurred during the unloading of the truck .... By the instant policy, insurer agreed to pay on behalf of insured sums which insured shall become legally obligated to pay because of bodily injury 'arising out of’ the use, including unloading, of the truck .... The instant policy does not require that the injury occur during or in the course of the unloading. The insurer did not so limit its liability ... . Plaintiff’s injury here allegedly resulted from negligent placing of the package. The placing of the package was part of the unloading. We are of opinion that the injury thus allegedly arose out of the unloading, and that, because the policy covered injuries arising out of the unloading, the policy covered insured’s liability to pay for the injury here.” Pacific Indemnity Company v. Run-A-Ford Company, Ala., 276 Ala. 311, 161 So.2d 789, 791-792 (1964). The judgment is reversed for further proceedings consistent with this opinion. All concur. . Though not disclosed by the pleadings, the fact of the settlement was brought out in the arguments presented to the trial court, and presumably the case was practiced on the theory that the payment had been made. Cf. OR 15.02. Considering, however, the basic purposes of declaratory judgment, it is immaterial.

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Caselaw Access Project

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Raymond HAGGARD, Appellant, v. CITY OF DAYTON et al., Appellees. Court of Appeals of Kentucky. April 19, 1974. Peter F. Beasley, Cobb, Combs, Beasley & Oldfield, Covington, Morris Weintraub, Newport, for appellant. Bruce Henneberg, Bernard J. Balu, Kurt J. Meier, Newport, for appellees. CULLEN, Commissioner. Raymond Haggard, proprietor of Mike’s Cafe in the City of Dayton, Kentucky, made application in May 1973 for renewal of the distilled spirits and malt beverage licenses he held for the cafe premises. His application for renewal of his city licenses was approved by the city alcoholic beverage control administrator and on the basis of that approval his state licenses were renewed in accordance with KRS 243.370. However, on June 29 Haggard received the following letter from the city clerk-treasurer of Dayton: “This letter is to advise you that by action of the Board of Council, of the City of Dayton, Campbell County, Kentucky, and Mr. Edward Bosch, City Liquor Administrator, your application for the renewal of your City Beverage License (beer and whiskey) has not been approved. “Your existing City of Dayton Beverage license expires June 30, 1973.” Haggard then brought the instant action in the Campbell Circuit Court, against the city, the city alcoholic beverage control administrator, and the city clerk-treasurer, demanding that the city be ordered to renew his licenses. The defendants moved to dismiss the complaint on the ground that the court did not have jurisdiction because Haggard’s sole remedy was by appeal to the State Alcoholic Beverage Control Board under KRS 241.200. The circuit court sustained the motion and entered judgment dismissing the complaint. Haggard has appealed from that judgment. KRS 241.200 makes provision for appeals to the state board from orders of a city alcoholic beverage control administrator, the appeals to be governed by KRS 243.550 to 243.590. Those statutes obviously contemplate an appeal upon the administrative aspects of the order, to provide a review of the administrative discretion of the city administrator. In the instant case there was no formal order of the city administrator to appeal from — only the letter from the city clerk-treasurer making reference to a purported decision by the city administrator, in conjunction with the city council, not to approve the application for renewal of the licenses. If, however, the letter be treated as the equivalent of an order, the fact remains that the city administrator previously had approved the application and the state licenses had been renewed on the basis of that approval. Furthermore, the record indicates that the city administrator did not make a judgment decision on the facts in withdrawing approval, but simply deferred to the action of the city council, which he thought had the “final approval.” So the question, as concerns the purported order of disapproval, is whether the city administrator had the legal authority to withdraw his approval, by deferment to the action of the city council, after the state licenses had been issued on the basis of that approval. That question is one of law, not of administrative discretion. Under the circumstances, we think that judicial relief was not precluded. See Preston v. Meigs, Ky., 464 S.W.2d 271; Harrison’s Sanitarium, Inc. v. Commonwealth, Dept, of Health, Ky., 417 S.W.2d 137. Accordingly, it is our opinion that the trial court erred in dismissing the complaint for lack of jurisdiction. The judgment is reversed with directions for further proceedings in conformity with this opinion. All concur.

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Caselaw Access Project

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Tommy J. TALENT, Petitioner, v. CITY OF ABILENE et al., Respondents. No. B-4267. Supreme Court of Texas. April 24, 1974. Rehearing Denied May 22, 1974. Robinson & Wilson, James E. Robinson, Abilene, for petitioner. Robert D. Cheatham, City Atty., Abilene, for respondents. McGEE, Justice. Petitioner Talent brought suit against the City of Abilene and its Firemen’s and Policemen’s Civil Service Commission in the 42nd District Court of Taylor County, Texas, under the provisions of Article 1269m, § 18 to set aside the order of the Firemen’s and Policemen’s Civil Service Commission of the City of Abilene which permanently dismissed Petitioner. The trial court upheld the Commission’s order; that judgment has been affirmed. Talent v. City of Abilene, 499 S.W.2d 724 (Tex. Civ.App. — Eastland 1973). We reverse the judgments of the courts below and render judgment for Petitioner. Petitioner Talent will be herein referred to as Talent; the Civil Service Commission will be referred to as the Commission. The Commission’s order of dismissal stemmed from Talent’s refusal, after having previously answered all questions put to him, to take an ordered polygraph test to inquire about the circumstances by which Talent was charged with receiving and concealing a stolen pickup truck. The record does not disclose that Talent was ever indicted or convicted of the crime. That order was as follows: “Special Order. September 21, 1972. To: Tommy J. Talent, Senior Fireman. From': D. C. Musick, Fire Chief. You are hereby directed to accompany me to the Texas Department of Public Safety, Midland, Texas, Friday, September 22, 1972, for the purpose of undergoing a polygraph examination, a lie detector test. We will depart from #1 Fire Station at 9:00 a. m. “The purpose of this examination is to ascertain if you have been truthful in your statements to me regarding your possession of a stolen pickup. This examination will in no way pry into your personal or private life. Only the circumstances of the stolen pickup being in your possession will be discussed. “The following questions will be asked of you during this examination: “1. Do you know who you got your pickup from? 2. Did you know the pickup was stolen? 3. Did you suspect the pickup being stolen ? 4. Did you steal the pickup ? 5. Did anybody ever indicate to you that the pickup was stolen? 6. Did you get any papers with the pickup ? 7. Do you have any papers for the pickup ? 8. Did you give a draft for $2,700 for the pickup? 9. Did you give $500 for the pickup? 10.Have you been truthful in your statements concerning the stolen pickup ? “You are hereby advised that no criminal charges or prosecution will result from this examination. D. C. Musick, Fire Chief.” The record discloses that Talent became aware through his relation to a used car dealership that a number of stolen cars were being sold in the vicinity. .Talent requested the police department to inspect a pickup truck he had recently acquired to determine if it were stolen. An inspection indicated that the truck had been stolen, and the police recovered it from Talent. Talent then notified his chief that the police had found the truck to have been stolen. Talent was later arrested and charged with receiving and possessing stolen property. Talent and Chief Musick discussed the charges on at least two occasions. Chief Musick and Bill Olson, the city personnel director, went to Talent, and in Chief Musick’s words, “[W]e told him that we wouldn’t like for a man to be working for the City or in the Fire Department, rather, being under the charge, being charged with a felony, and asked him if he would be willing to take off, a leave of absence without pay, until it was cleared up.” Talent refused that request, then acceded to a suggestion to use his vacation leave. When Talent’s vacation leave was used up, Chief Musick ordered the polygraph test. Musick stated at trial, “. . . he ha [d] n’t done anything to get it cleared up after his vacation. And the responsibility of the job, and so forth, it was my belief that Tommy shouldn’t come back to work at full pay, I mean; on the Department, under charge, as a felony.” A Firemen’s and Policemen’s Civil Service Commission is required by Article 1269m, Section 5 to provide grounds for removal of firemen and policemen. Any rule or regulation so prescribed is invalid unless it states one or more of the grounds stated, as enumerated: “Conviction of a felony or other crime involving moral turpitude; violations of the provisions of the charter of said city; acts of incompetency; neglect of duty; discourtesy by said employee to the public or to fellow employees while said employee is in line of duty; acts of said employees showing a lack of good moral character; drinking of intoxicants while on duty, or intoxication while off duty; or whose conduct was prejudicial to good order; refusal or neglect to pay just debts; absence without leave; shirking duty, or cowardice at fires; violation of any of the rules and regulations of the Fire Department or Police Department or of special orders, as applicable.” Section 16a of Article 1269m discloses that the purpose of the Article is to secure “efficient Police and Fire departments, composed of capable personnel, free from political influence, and with permanent tenure of employment as public servants [Emphasis added]. Pursuant to its statutory duty the Abilene Commission promulgated Section 23 of its Civil Service Rules containing the following grounds for suspension or dismissal, inter alia: “(1) Indictment or conviction of a felony or any other crime involving moral turpitude. “(8) Conduct prejudicial to good order. “(13) Violation of any rule or regulation of the Civil Service Commission, Fire Department or Police Department or of special orders, as applicable.” Section 23 of the Abilene rules concludes : “In cases where, in the interest of public policy, it becomes necessary to suspend a Fireman or Policeman who has been indicted by a grand jury, the employee so involved shall be requested to file an appeal with the Civil Service Commission pending the final outcome of the charges.” In compliance with Section 29 of the Civil Service Rules, the Chief filed a written statement with the Commission setting out the grounds for the indefinite suspension. Section 29 provides, inter alia: “The written statement . . . to be filed by the department head with the Commission shall not only point out the civil service rule alleged to have been violated by the suspended employee, but shall contain the alleged acts of the employee which the department head contends are in violation of the civil service rules. It shall not be sufficient for the department head merely to refer to the provisions of the rules alleged to have been violated and in case the department head does not specifically point out the act or acts complained of on the part of such employee, it shall be the duty of the Commission promptly to reinstate him. In any civil service hearing hereunder, the department head is hereby restricted to his original written statement and charges, which shall not be amended, and no act or acts may be complained of by said department head which did not happen or occur within six (6) months immediately preceding the date of suspension by the department head. No employee shall be suspended or dismissed by the Commission except for violation of the civil service rules, and except upon a finding by the Commission of the truth of the specified charges against such employee.” The basis for Talent’s dismissal was laid solely on his refusal to take the polygraph test. The written statement to the Commission from Chief Musick alleged violations of grounds numbers 8 (conduct prejudicial to good order) and 13 (violation of a rule, regulation, or special order) of Section 23 of the Civil Service Rules. The Chief’s narrative of the events constituting violation of those rules clearly indicates violation of the special order to be the basis for the suspension. Chief Musick wrote: “Honorable Civil Service Commission City of Abilene Ábilené; Texas. “Re: Indefinite suspension of Tommy J. Talent, Senior Fireman. “Gentlemen: “Please be advised that Senior Fireman Tommy J. Talent of the Abilene Fire Department was ordered indefinitely suspended by me September 26, 1972, at 10:00 o’clock a. m. Senior Fireman Talent was suspended and is recommended to be permanently dismissed from the Abilene Fire Department for violating the following Civil Service Rules and Regulations of the City of Abilene: “Section 23, (8) — CAUSES FOR REMOVAL OR SUSPENSION — For conduct prejudicial to good order. “Section 23, (13) — CAUSES FOR REMOVAL OR SUSPENSION — For violation of any rule or regulation of the Civil Service Commission or Fire Department or of special orders, as applicable. “Senior Fireman Talent was arrested by Abilene police August 30, 1972, on a felony warrant from Erath County, Texas charging him with receiving stolen property, a 1972 pickup. He was released on $1,000.00 bond August 30, 1972. Since the date of his arrest, Senior Fireman Talent has not returned to active duty in the Fire Department. He has been on vacation leave with pay until the time I ordered his indefinite suspension. “When I first learned of the arrest of Senior Fireman Talent, I met with him and asked him to tell me the full story of how he came in possession of the stolen vehicle. He told me he did not steal the pickup and did not know it was stolen until the police officers told him it was stolen. He stated he bought the pickup here in Abilene about three months before his arrest from a man from Weatherford, Texas, that he did not know and that he could not remember the man’s name. Senior Fireman Talent told me he gave the man $500.00 in cash and a draft for $2,700.00 for the pickup. He stated he did not get a receipt or any papers on the vehicle from the man from Weatherford and that he has not seen or heard from him since. “Due to the nature of the criminal charge filed against Senior Fireman Talent, and based on the fact that he is employed in a public safety profession and charged with the responsibility of protecting the lives and the property of the citizens of Abilene, I issued a written special order to Senior Fireman Talent directing him to undergo a polygraph examination to verify his statements to me regarding his possession of the stolen pickup. When Senior Fireman Talent was handed this special order September 21, 1972, he stated he did not think he would take the examination. He then failed to report to the #1 Fire Station at 9:00 a. m. on September 22, 1972, as directed by the special order. Assistant Fire Chief G. I. Powell waited at the #1 Fire Station until after 9:30 a. m. to take Senior Fireman Talent to the examination but Chief Powell did not see or hear from him. “Senior Fireman Talent’s action in this matter is in direct violation of the above cited rules. Senior Fireman Talent failed to obey the written special order of the Fire Chief to undergo a polygraph examination and such failure to obey the written special order of the Fire Chief is prejudicial to the good order of the Fire Department. “You will find attached hereto my special order of September 21, 1972 to Senior Fireman Talent. “A copy of this order of suspension will be served on Senior Fireman Talent by me and Senior Fireman Talent is hereby informed and advised that he has ten (10) days after receipt of his copy within which to file a written appeal with the Firemen’s and Policemen’s Civil Service Commission of the City of Abilene, Texas, at the office of the Director of Civil Service in Room 210, City Hall, 555 Walnut Street, Abilene, Texas. “Yours very truly, D. C. Musick, Fire Chief.” On both direct and cross examination Chief Musick stated that both violations dealt with the single incident of refusal to comply with the order to take the polygraph test. On cross examination Chief Musick further stated in effect his position had been that Talent would not have been allowed to return to his post unless he took the test and the test results had been favorable to Talent. Petitioner has challenged the validity of the order on successive grounds. First, he argues that a fire chief is without legal authority to order a lie detector inquiry into the criminal activity of a fireman when the charged crime does not relate to the fireman’s performance of his official duties or to his accounting for his public trust. Second, he argues that even if a fire chief has such authority, the special order authority may not be used to circumvent the statutory requirement of conviction of a crime or the civil service rules requirement of indictment or conviction of a crime. Third, Talent argues the order unreasonable in that it asks about conduct functionally unrelated to a fireman’s duties. Fourth, Talent argues the order was illegal on the grounds that since the officer who ordered Talent to answer questions lacked statutory authority to grant immunity, the order would have compelled him to give admissible testimony against himself. Because we are convinced Talent is correct in his first argument, we reverse the judgments below without reaching Talent’s other points. Neither the briefs of counsel, nor briefs of Amici Curiae, nor our own research have disclosed any express authority granting a fire chief the power to compel those under his supervision to undergo lie detector investigation of their character after employment. Further, we hold that under the circumstances of this case, the fire chief exceeded his implied authority in ordering the polygraph test. The question is not before us and we do not decide whether a law enforcement official has implied authority to order polygraph tests be taken by his or her subordinates concerning subject matters related to performance of their public trusts. A fire chief is not a law enforcement official and has no roving commission to detect crime or to enforce the criminal law. He has no indictment power. His subordinates, although they may have extraordinary access to the property of others, are not employed as law enforcement officers. We do not mean to be understood as forbidding the use of polygraph tests by public officials when there is cause to believe a public employee has performed his official duties illegally. We do hold, however, that a fire chief has no authority to order such a test of a tenured employee about non-employment related subjects. In Jackson v. Firemen’s & Policemen’s Civil Service Commission, 466 S.W.2d 412 (Tex.Civ.App.— Houston [1st Dist.] 1971, writ ref’d n. r. e.) a dismissal was upheld for violation of a special order pursuant to a city-wide policy that all city employees live within the city limits. It could be there presumed that living within the city limits was reasonably related to maintaining an efficient fire fighting force because of the expectations of greater proximity to one’s reporting station and of ease of communication. No such presumption can here be indulged. It was said by way of limitation of special orders in Jackson, “It would be an unreasonable interpretation to hold that suspension is authorized for the violation of a special order if it is clearly unreasonable or unrelated to the duties of a fireman. Such an interpretation would render meaningless the enumeration of grounds for suspension found in Section 5 of the Act.” Id. at 414. We have carefully examined those cases cited by the Court of Civil Appeals and relied on by the Commission which uphold dismissals of policemen in situations involving refusals to take lie detector tests, or which raise constitutional objections to tests by seeking declaratory judgment. Because each of those cases involves charged dereliction of official duties or the intentional damage to public property while off duty, they are factually distinguishable from the instant case and are not disposi-tive of this fact situation. The judgment of the Court of Civil Appeals is reversed and hereby rendered that Petitioner be reinstated as a Senior Fireman with the Abilene Fire Department effective the twenty-sixth day of September, 1972, at 10:00 o’clock a. m. Dissenting opinion by REAVLEY, J., joined by WALKER, STEAKLEY and DANIEL, JJ. REAVLEY, Justce dissenting. I agree with the concurring opinion of Chief Justice McCloud of the Court of Civil Appeals; the judgment of that Court should be affirmed. The police found a stolen 1972 pickup truck in the possession of Fireman Talent, who then went to Fire Chief Musick to explain how he came to have the truck. It was the first word the Fire Chief received of the matter. Fireman Talent’s explanation was enough to leave doubts. He said that he bought the truck by giving $500 cash and a $2700 draft to be cashed later to someone he did not know and could not name. He had no receipt, no title papers, and no address or means of obtaining further proof or papers. This is the account of a 28 year old man, a fireman for over 6 years, who has spent time at his father’s used car lot and owned several vehicles previously. Fireman Talent was arrested and charged with receiving stolen property. Fire Chief Musick then tried to obtain from Talent a better explanation of his involvement. Instead he found Talent’s response to be unconvincing and inconsistent. The Fire Chief had a responsibility to Fireman Talent: to respect the rules of job tenure and to treat Talent fairly. He also had a responsibility to the other 127 people in his department where discipline and mutual trust are necessary. He had the people of the City of Abilene to serve. Abilene’s ordinances provide that its firemen and policemen must be persons of good moral character. The Civil Service Rules and Regulations of Abilene include as a cause for removal or suspension: “Acts or conduct of an employee showing a lack of good moral character.” The reasons for removal are not limited to conduct while on duty; they include intoxication while off duty, refusal or neglect to pay just debts, as well as the aforementioned lack of good moral character. These same grounds are included in Section 5, Article 1269m, Vernon’s Ann.Civ.St. By providing these grounds for discharge, I would say that the Legislature and City of Abilene recognized that policemen and firemen should be credible and trustworthy. It is not enough to say that a fireman has never taken off a firehose; if he is a dishonest person, the City of Abilene does not want him staying at the fire station or coming into their homes and stores. This is their right, and in my opinion Fireman Talent’s rights must accede thereto. Fire Chief Musick sought to meet these responsibilities and resolve his doubts by ordering Talent to answer certain questions under the observation of an experienced polygraph examiner. The Fire Chief had resolved similar problems on five prior occasions; those five people had all passed their examinations satisfactorily and had been retained in employment. Fireman Talent refused to obey the order and was discharged. The order was justified if the inquiry was a proper one. This Court now holds “that a fire chief has no authority to order such a test of a tenured employee about non-employment related subjects.” As I understand the distinction by the majority of Jackson v. Firemen’s & Policemen’s Civil Service Commission, 466 S.W.2d 412 (Tex.Civ.App.1971, writ ref’d n. r. e.), it is that the fireman’s place of residence is related to the efficiency of the fire fighting force, but that the honesty of the fireman is not. It appears, further, that the majority would hold differently if the honesty of a policeman were the inquiry. I regard the holding to be contrary to the statute (Art. 1269m) and without any justification. WALKER, STEAKLEY and DANIEL, JJ., join in this dissent. . All statutory rferences are to Vernon’s Tex.Rev.Civ.Stat.Ann. (1963).

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AMERICAN PLANT FOOD CORPORATION, Appellant, v. The STATE of Texas, Appellee. Nos. 48155, 48156. Court of Criminal Appeals of Texas. April 24, 1974. Rehearing Denied May 15, 1974. James & Terrell, Kerrville, Sewell, Ju-nell & Riggs, Houston, for appellant. Carol S. Vance, Dist. Atty. James Brough & Mike Parks, Asst. Dist. Attys., Houston, and Jim D. Vollers, State’s Atty., Austin, for the State. OPINION ODOM, Judge. These appeals are from convictions for the offense of water pollution; punishment was assessed at a one thousand dollar fine in each cause. The first ground of error attacks the statute under which this conviction was obtained; contending it is void because Article 698c, Vernon’s Ann.P.C., Section 21.553 of the Water Code, and Article 7621d-2, Sec. 3.05, Vernon’s Ann.C.S., all define this same offense yet provide for different penalties, thereby rendering the statutes so indefinite as to be inoperative, citing Stevenson v. State, 145 Tex.Cr.R. 312, 167 S.W.2d 1027. Initially we observe that Article 7621d-2, supra, establishes the Gulf Coast Waste Disposal Authority, and Section 3.05 thereof grants that authority the power to bring a civil suit for collection of civil penalties and injunctive relief. The creation of this civil remedy no more renders the criminal provisions indefinite than the creation of administrative sanctions for violations of the Texas Liquor Control Act renders criminal sanctions for such violations indefinite. See Articles 666-1 et seq. and 667-1 et seq., V.A.P.C. Next, we must consider whether Article 698c, V.A.P.C., and Section 21.553 of the Water Code, V.T.C.A., are in such conflict as to be inoperative. We note that the Legislature in enacting the 1974 Penal Code expressly repealed Article 698c, V.A. P.C., effective January 1, 1974. Acts 1973, 63rd Leg., p. 993, ch. 399, sec. 3. But also, effective June 16, 1973, Article 698c, supra, was expressly repealed by Acts 1973, 63rd Leg., p. 1780, ch. 653, sec. 7. The story does not end here, however, because prior to either of these express repeals of Article 698c, supra, we find that article was repealed by necessary implication upon the enactment of Sections 21.551 through 21-564 of the Water Code, Acts 1971, 62nd Leg., pp. 216-219, ch. 58. Those sections of the Water Code follow very closely the language of Article 698c, V.A.P.C.; the criminal offense section (21.552), follows Article 698c, Secs. 2 and 3, verbatim; and the certified Session Laws cite the Penal Code Article as the source. The repeal of Article 698c, supra, by necessary implication was accomplished by enactment of Section 21.564, Water Code, which provides: “To the extent that any general or special law . . . makes an act or omission a criminal offense, and which act or omission also constitutes a criminal offense under this subchapter, the other general or special law is repealed, but only to that extent.” Thus we see that Article 698c, supra, was repealed upon the enactment of Section 21.553, supra, and consequently there could be no conflict between the two. Appellant’s prosecution and conviction could only have been under Sections 21.552 and 21.553 of the Water Code. Appellant also contends the statute is unconstitutionally vague on its face. Section 1.002, Water Code, provides: “The Code Construction Act (Article 5429b-2, Vernon’s Texas Civil Statutes) applies to the construction of each provision in this code, except as otherwise expressly provided by this code.” Article 5429b-2, Sec. 3.12, V.A.C.S., in relevant part, provides: “If any provision of a statute or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the statute which can be given effect without the invalid provision or application and to this end the provisions of the statute are severable.” The record reflects that appellant was charged with a violation of Section 21.-552(a), Water Code, which provides: “No person may discharge, or cause or permit the discharge of, any waste into or adjacent to any water in the state which causes or which will cause water pollution unless the water is discharged in compliance with a permit or other order issued by the Texas Water Quality Board, the Texas Water Development Board, or the Texas Railroad Commission.” Appellant contends the vagueness of the statute resides in its definition of water pollution, which is stated in Sec. 21.551(2), Water Code, as follows: ‘Water pollution’ means the alteration of the physical, chemical, or biological quality of, or the contamination of, any of the water in the state that renders the water harmful, detrimental, or injurious to humans, animal life, vegetation, or property, or to public health, safety, or welfare, or impairs the usefulness or public enjoyment of the water for any lawful or reasonable purpose.” Specifically, appellant asserts that the possibility of conviction for causing water pollution that only “impairs the usefulness or public enjoyment of the water” renders the statute void for vagueness, even though said condition is only disjunctively an element of the offense. Clearly this disjunctive element, even if too vague for enforcement as a definition of prohibited water pollution, would not render the entire statute void, but could be effectively severed from the definition in accordance with the legislative intent expressed in Article 5429b-2, Sec. 3.12, supra. The challenged element being but disjunctive, to be entitled to reversal appellant must show that its case was tried and submitted upon this theory, since clearly if the prosecution were based upon any other definition of water pollution as disjunc-tively defined in Section 21.551(2), supra, appellant would be no more prejudiced by any vagueness in the challenged phrase than if it had been tried under Section 21.552(b), supra, which does not require any showing of water pollution whatsoever. No statement of facts is in the record, and we are unable to determine from the record upon what theory appellant was in fact tried and convicted. Absent a showing that appellant’s convictions may in fact rest upon the challenged theory, at least in part, nothing is presented for review. By the second ground of error, appellant complains of the allegations in the complaint and information. This ground is multifarious in that it raises at least three separate grounds, the first two claiming the allegations are general, vague and indefinite, and the third claiming the information does not allege a criminal offense. Chapter 21 of the Code of Criminal Procedure sets forth the requirements of indictments and informations as to form. Article 21.21 thereof enumerates the requisites of an information, and provides in part: “7. That the offense be set forth in plain and intelligible words; . . . ” Article 21.23, V.A.C.C.P., provides: “The rules with respect to allegations in an indictment and the certainty required apply also to an information.” Articles 27.08 and 27.09, V.A.C.C.P., enumerate the causes for an exception to the substance and the form, and accordingly distinguish substance from form. In part they provide: Art. 27.08: “There is no exception to the substance of an indictment or information except: “1. That it does not appear therefrom that an offense against the law was committed by the defendant; “2. That it appears from the face thereof that a prosecution for the offense is barred by lapse of time, or that the offense was committed after the finding of the indictment; . . . ” Art. 27.09: “Exceptions to the form of an indictment or information may be taken for the following causes only: “2. The want of any requisite prescribed by Articles 21.02 and 21.21 We observe that, as stated in 30 Tex.Jur. 2d, Indictment and Information, Sec. 13: “An indictment or information consists of four prominent parts: (1) the caption, (2) the commencement, (3) the charge, and (4) the conclusion. The first, second, and fourth of these constitute the formal parts of the pleading; the third, the charging part, is the vital portion.” We point out this distinction between the formal parts of the information and the charge in order to avoid from the outset any confusion of that distinction with the distinction between exceptions to the form of an information and exceptions to the substance thereof. For example, an exception to the substance of an information based upon Article 27.08(2), supra, would be based in part upon the formal part of the information in that the date of the “findings” of the information is contained in the formal part, not in the charge. Also, omission of the conclusion, though a formal part, is a fatal defect in substance, not a defect of form alone, and renders the indictment insufficient to support a conviction. Cox et al. v. State, 8 Tex.App. 254, at 305 et seq. Likewise, an exception to the form of an information under Article 27.09(2), supra, will be to the charge if it be directed to a failure to comply with Article 21.-21(7), supra, requiring that the charge set forth the offense in plain and intelligible words. Unless the deficiency under Article 21.21(7), supra, be of such a degree as to utterly fail to charge that an offense against the law was committed by the defendant (cf. Art. 27.08(1), supra), then it is objectionable only as to form and not as to substance. This distinction between an objection to the charge based on substance and one based on form, subtle though it be, is well founded in reason, in justice, and in the logic of the Code of Criminal Procedure. If the charge alleges an offense was committed by the defendant, then it is sufficient in law to support a verdict of guilty if one be rendered thereon. If it does not so allege, then it is utterly' insufficient and any conviction based thereon is void. A void conviction may be challenged at any time and thus an exception to the substance of the State’s pleading, as set forth in Article 27.08, supra, may be raised for the first time on appeal. See, e. g. Pospishel v. State, 95 Tex.Cr.R. 625, 255 S.W. 738, wherein the rule was recognized over half a century ago: “In Osborne v. State, 93 Tex.Cr.R. 54, 245 S.W. 928, it was recognized that if the defect be one of substance advantage of it could be taken for the first time on appeal. We are not discussing or considering lack of form or duplicity. The distinction between those defects and one of substance is clearly drawn in Melley v. State, 93 Tex.Cr.R. 522, 248 S.W. 367. “Whether failure in an indictment to charge an offense is a defect of substance is not left to conjecture. Article 575, Code of Criminal Procedure, [now Art. 27.08, supra,] settles that question.” If the charge is sufficient in substance under Article 27.08(1), supra, it may still be subject to an exception under Article 27.09(2), supra, for some deficiency under Article 21.21(7), as that provision is further clarified by Articles 21.03, 21.04, 21.11 and 21.17, V.A.C.C.P. and prior decisions of this Court. In Terry v. State, Tex.Cr.App., 471 S. W.2d 848, the defendant contended that the indictment was vague, general, and indefinite, and failed to allege the constituent elements of the offense sought to be charged. In that case the trial court had overruled the defendant’s motion to quash, which this Court found to be reversible error, citing Articles 21.04 and 21.11, supra, and reciting the rule as follows: “The indictment must allege on its face the facts necessary (1) to show that the offense was committed, (2) to bar a subsequent prosecution for the same offense, and (3) to give the defendant notice of precisely what he is charged with.” Terry v. State, supra, at 852. The issue there having been raised in the trial court, all issues raised under both Articles 27.08 and 27.09, supra, were before this Court for consideration. Had the matter been raised for the first time on appeal, only such issues cognizable under Article 27.08, supra, (to-wit: that the indictment failed to allege the constituent elements of the offense sought to be challenged), would have been before the court. See Pospishel v. State, supra. The last two requirements stated in Terry, supra, that the State’s pleading must allege facts sufficient to bar a subsequent prosecution for the same offense and sufficient to give the defendant notice of precisely what he is charged with, though relating to the substance of the charge in one sense, are, in contemplation of exceptions under Articles 27.08 and 27.09, supra, grounds for an exception to the form under Articles 27.09(2) and 21.21(7), and not for an exception to the substance under Article 27.08(1). Clearly any such defect would not render the information void or insufficient to support a conviction. Quoting with approval from early authorities, this Court in Melley v. State, 93 Tex.Cr.R. 522, 248 S.W. 367, stated: “Duplicity in an indictment is the join-der of two or more distinct offenses in one count . ‘In the matter of principle, it would seem to be a defect of such mere form as aught to be deemed cured by the verdict, because the objection is one which relates simply to the convenience of the defendant in making his defense, while by not taking the objection he seems to have suffered no inconvenience, and, therefore, to have waived it.’ ” We think the observations made there with respect to an exception for duplicity apply with equal logic to an exception for failure to give notice of precisely what the defendant is charged with and failure to allege sufficient facts to bar a subsequent conviction. Prior to trial any such requirements are for the defendant’s convenience and may be raised, but if he goes to trial without raising any such objection, he may not urge them for the first time thereafter, since it must be presumed he has found the charge sufficient to his own satisfaction. He may not wait to see whether the jury will acquit him, and then, upon an adverse verdict, claim for the first time that he had no notice or that the charge will not bar a subsequent conviction. Only if the defect be of such a degree as to charge no offense against the law, and thereby be void, will the exception to the substance be considered for the first time on appeal under Article 27.08(1), supra. In each of the instant cases, appellant filed motions to quash. However, it does not appear from the records that said motions were ever brought to the attention of the trial court, or that a ruling was ever secured thereon. Consequently, only such defects as would render the indictments insufficient to support the convictions may be considered after judgment or by this Court. Two of the three grounds multifariously raised by appellant’s second ground of error admittedly claim only that the allegations in the informa-tions are general, vague, and indefinite. They may not be raised for the first time following judgment. See Wilson v. State, Tex.Cr.App., 398 S.W.2d 291 (on motion for rehearing). The third contention asserts the information does not allege a criminal offense, and if valid would constitute fundamental error requiring consideration in the interests of justice even if not properly raised. Art. 40.09, Sec. 13, V.A. C.C.P. Appellant contends the informa-tions are defective for not negating the provisions of Section 21.555, Water Code, which provides: “Any waste discharge otherwise punishable under this subchapter which is caused by an act of God, war, riot, or other catastrophe, is not a violation of this subchapter.” This exception is in a separate section from the provision which states the offense, and a prima facie case can be made without proof negating the exception. It is not an essential requirement that it be negated in an information. See Salazar v. State, Tex.Cr.App., 423 S.W.2d 297; McKnight v. State, 161 Tex.Cr.R. 472, 278 S. W.2d 150; Baker v. State, 132 Tex.Cr.R. 527, 106 S.W.2d 308. In the third ground of error, appellant contends it received no notice of the trial date and was thereby denied due process of law, citing Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), and others. In Boddie, supra, the Court stated that an individual must be given an opportunity to be heard in order to satisfy the requirements of due process, but recognized that “the hearing required by due process is subject to waiver.” In the instant cases appellant had actual notice of the criminal proceedings instituted against it and had filed motions therein. Appellant corporation cannot now complain that it had no notice, particularly after voluntarily absenting itself from attendance of settings of which it had notice and at which the trial setting was made. Section 21.561, Water Code. The record shows no denial of due process, but only a lack of diligence. By the fourth ground of error, appellant asserts error occurred when no record of the trial was made by a court reporter. Appellant did not request that a court reporter takes notes of the trial proceedings, in accordance with Article 40.-09(4), V.A.C.C.P., nor does the record reflect that appellant sought to reconstruct a record of the trial proceedings in whole or in part by an agreed statement in accordance with Article 40.09(14), supra, nor does the record indicate any attempt to preserve any events occurring at the trial proceedings for review by formal bill of exception in accordance with Article 40.-09(6), supra. No error is shown. The appellant in its fifth ground of error asserts reversal is required because the causes went to trial without the trial court having ruled on its motions to quash and application for deposition. The record does not reflect that said motions were ever brought to the attention of the court, and appellant admits it voluntarily absented itself from settings for hearings, of which it had knowledge and at which it could have urged said motions. No error is shown. Finally, appellant asserts the summons should have been quashed as defective. The summons is not in the record. Nothing is presented for review. Finding no reversible error, the judgments are affirmed. . It will also be observed that any defect in the matters set forth in the other provisions of Article 27.08 also go to the very sufficiency of the indictment or information to support the particular conviction based thereon. It is this quality of the sufficiency of the State’s pleading as a matter of law to support the conviction that makes the deficiency one of substance. . Such was also the case in Moore v. State, Tex.Cr.App., 473 S.\V.2d 523, the defendant therein having secured a ruling on his motion to quash, all objections to the State’s pleading were properly preserved for consideration on appeal. . We do note that, even if properly preserved, appellant’s contentions: would be without merit. It asserts vagueness in failure to allege the substance that was causing the pollution, and in failure to allege the method by which the pollution reached the waters polluted. The informations charged appellant did “discharge and permit the discharge of industrial waste” into the alleged water and negatived the permit clause in the terms of Section 21.552(a), Water Code. “Discharge” is defined in the statutes and need not be further alleged in the indictment. Cf. Smith v. State, Tex.Cr.App., 502 S.W.2d 133. Further allegations as to how the substance was transported from its point of origin to the point at which it was discharged would be merely evidentiary. Cf. Cameron v. State, Tex.Cr.App., 401 S.W.2d 809. As to the substance, the information alleged industrial waste, which term is defined in the statutes and needed no further pleading. Indeed, unless a permit or other order be issued permitting the discharge of certain substances, a proper case could be made without expert testimony as to the precise chemical content of the waste. Appellant’s contention that the chemical nature of the substance should be alleged is without merit. If such were required, might not each separate waste compound in the discharge constitute a separate offense? The allegation of “industrial waste” was sufficient.

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2024-08-24T03:29:51.129683

Michael Edward CHASE, Appellant, v. The STATE of Texas, Appellee. No. 46796. Court of Criminal Appeals of Texas. Jan. 16, 1974. Rehearing Denied May 15, 1974. Emmett Colvin, Jr. and Lawrence B. Mitchell, Dallas (both on appeal only) for appellant. Henry Wade, Dist. Atty., W. T. West-moreland, Jr., Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., Buddy Stevens, Asst. State’s Atty., Austin, for the State. OPINION DAVIS, Commissioner. Appeal is taken from a conviction for murder. Penalty was assessed by the jury at life. While the sufficiency of the evidence is not challenged, a brief recitation of the events which give rise to appellant’s grounds of error is deemed necessary in order that appellant’s contentions may be discussed with greater clarity. Appellant, a seventeen-year-old high school student, lived with his parents in Dallas. The appellant and the deceased, a schoolmate, attended a party on the night of August 21, 1970. The deceased was to spend the night with appellant and they left the party together. Appellant’s parents were away from home for the night. On August 24, 1970, the body of the deceased was found on the bank of the Trinity River. The body was encased in a green sleeping bag. A large rope was bound around the body. Appellant gave officers a written statement on September 4, 1970, that deceased had been at his home on the night of August 21, 1970. On September 10, 1970, at a time when the State contends that its investigation had not focused on appellant, a search was made of appellant’s home without a warrant. On September 14, 1970, an arrest warrant issued and appellant was taken into custody. A short time after his arrest, appellant made an oral confession to officers. On October 7, 1970, a search warrant was obtained and appellant’s home was searched for the second time. At the outset appellant contends that the trial court lacked jurisdiction over the appellant in that Article 2338-1, Vernon’s Ann.Civ.St, denied the appellant the equal protection of the law guaranteed by the Fourteenth Amendment to the Constitution of the United States in establishing a different age requirement for conferring juvenile jurisdiction for males than females. Appellant, a seventeen-year-old male at the time of the alleged offense on August 22, 1970, urges that had he been a female rather than a male, the applicable law at the time in question would have required that the case pending against him be transferred to the juvenile court. This court’s decision in Ex Parte Matthews, Tex.Cr.App., 488 S.W.2d 434, is dis-positive of appellant’s contention. While Ex parte Matthews, supra, held that the disparity in the age classification between males and females was unconstitutional, this court went on to hold that every person was amenable to punishment under the Penal Code (Article 29, Vernon’s Ann. P.C.) except persons under the age of fifteen (Article 30, Section (a)(1), V.A.P.C.) after excising the seventeen-eighteen year old classification from Article 2338-1, V. A.C.S., and Article 30, V.A.P.C. Thus, the court had jurisdiction of appellant in the instant case. See Hill v. State, Tex.Cr. App., 504 S.W.2d 484 (1974). Appellant contends that the court erred in admitting an oral confession in that such confession did not comply with the requirements of Article 38.22, Section 1(e), V.A.C.C.P. Appellant urges that while his oral confession may have been explanatory it did not lead to any of the instrumentalities of the crime and is therefore inadmissible. The pertinent portion of Article 38.22, V.A.C.C.P., provides: “1. The oral or written confession of a defendant made while the defendant was in jail or other place of confinement or in the custody of an officer shall be admissible if: “(e) It be made orally and the defendant makes a statement of facts or circumstances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed.” Pursuant to an arrest warrant, appellant was taken into custody on September 14, 1970. After being arrested at the school he was attending, officers read appellant the “Miranda” warnings and, according to the officers, appellant stated he understood them. After entering the squad car, appellant made an oral confession in which he stated that a bayonet was the murder weapon; that a rope was taken from the carport at appellant’s home which was used to bind the deceased; that the plywood board found with the body was a table top that came from his younger brother’s room and that the sleeping bag the body was found in belonged to a friend. After arrival at the sheriff’s office, appellant was taken before a justice of the peace and from there to an interview room where the oral confession continued. Appellant stated that he and the deceased went to appellant’s home after a party. According to Officer Williamson, appellant related that he and the deceased had an argument, but appellant would not talk about the incident surrounding the death of the deceased. Appellant stated that when he awakened the next morning, he found the deceased lying on the floor; that appellant went to the carport and got a sleeping bag and the rope and after placing the deceased in the sleeping bag he dragged the body to a tin shed behind the house. Later, appellant returned to the shed, placed the deceased in the bed of a pickup, covered the body with a piece of plyboard and drove to the river.. Upon arrival at the river, appellant placed the deceased on the plyboard and dragged deceased to the water. After deceased was placed in the water, appellant put the plyboard over him. Appellant argues that the officers already had all of the instrumentalities of the crime in their possession and nothing was recovered as a result of the oral confession. The sleeping bag and the ply-board were found with the body. A piece of rope and the bayonet were recovered in the officers’ search of appellant’s home on September 10, 1970. In Ashley v. State, Tex.Cr.App., 362 S. W.2d 847, cert, denied 372 U.S. 956, 83 S. Ct. 955, 10 L.Ed.2d 10, defendant contended that no proper predicate had been laid authorizing the admission of an oral statement because the officers already had the deceased’s automobile in their possession. After defendant’s arrest, defendant’s purse was emptied on a desk and defendant stated that keys emptied therefrom belonged to deceased’s automobile. The keys were subsequently determined to fit deceased’s automobile. This court found that such evidence was sufficient to show that the automobile had been under the control and in the possession of the defendant. The court went on to hold that the oral statement made at the time defendant identified the keys as belonging to deceased’s vehicle was, under the facts and circumstances of the case, authorized to be admitted into evidence. In Valtiero v. State, 153 Tex.Cr.R. 260, 219 S.W.2d 73, where a hat belonging to the victim was discovered by following the defendant’s directions, this court said: “The facts here present demonstrate that facts and circumstances may be stated by an accused which unquestionably are inculpatory and conduce to establish his guilt, and yet neither lead to the recovery of stolen property, or the instrument with which the offense was committed.” The facts found to be true must be incriminating. Shelton v. State, 168 Tex. Cr.R. 432, 328 S.W.2d 445. When the facts or circumstances asserted have not led to the discovery of items or information previously unknown to the State, confessions have been held inadmissible. Tag-gart v. State, 149 Tex.Cr.R. 91, 191 S.W.2d 728; Willoughby v. State, 87 Tex.Cr.R. 40, 219 S.W. 468; Baggett v. State, 65 Tex. Cr.R. 425, 144 S.W. 1136. When, however, the statement of the accused has led to the discovery of items or information not theretofore discovered by the State, the “found to be true” requirement of Article 38.22, Section 1, V.A.C.C.P., has been satisfied. Wilson v. State, Tex.Cr.App., 473 S.W.2d 532 (recovery of stolen vehicle); Ashley v. State, supra (identification of keys in defendant’s possession); Stelman v. State, 123 Tex.Cr.R. 330, 58 S.W.2d 831 (location of victim and victim’s wound) ; Sweat v. State, 115 Tex.Cr.R. 130, 29 S. W.2d 756 (location of burglary and identification of stolen property) ; Williams v. State, 115 Tex.Cr.R. 28, 27 S.W.2d 233 (location of murder). The foregoing authorities dictate that Article 38.22, Section 1(e), V.A.C.C.P., requires that some evidence be found as a result of the defendant’s statement which bolsters the reliability of the facts and circumstances in the statement that conduce to establish guilt. In appellant’s oral statement to the officers the plyboard which was found with deceased’s body was described by appellant as having come from his brother’s room; that it was a table top and the hinges on the board supported it against the wall; and the metal eye hooks on the board were hooked to chains. When the officers went to appellant’s home on October 7, the ply-board was taken to appellant’s brother’s room. The plyboard was found to fit up to the wall with chains fastened thereto just as appellant had described in his oral confession. Photographs were taken of the plyboard attached to the wall and introduced into evidence. The information obtained from appellant and confirmed by the officers taking the plyboard to appellant’s home is like the identification and determination of the origin of the keys in Ashley v. State, supra. The origin of the plyboard was unknown to the officers prior to appellant’s statement and the determination of the truth of such statement conduced to establish appellant’s guilt. Under these facts and circumstances, the appellant’s oral statement was authorized to be admitted into evidence. Appellant next contends that his oral confession was inadmissible in that there was no showing that the arrest warrant was based on probable cause. The record reflects that the court granted appellant’s motion to discover the warrant of arrest for appellant and the affidavit in support thereof. The sole thrust of appellant’s argument is that the State failed to establish, after due objection, that the arrest warrant was based on probable cause and therefore the oral confession should have been suppressed. In support of his contention, appellant points to the testimony of Officer Williamson: “Q. ... I will ask you if you were present when Mr. Oxford of the Dallas Sheriff’s office swore out an affidavit charging Michael Edward Chase with the murder of Reuel Dean Hanks? “A. I was. “Q. All right. I will ask you as a result of the affidavit that was filed in support of his accusation if an arrest warrant was issued. “A. It was.” Appellant calls our attention to another place in the record where the same information was elicited from Williamson and due to the fact that the testimony does not vary in any material respect it will not be repeated. The trial court, in its findings of fact and conclusions of law in overruling appellant’s motion to suppress the oral confession, found (among other findings) "... there is no evidence to show that the affidavit upon which the arrest warrant is founded contains warrants sufficient to qualify as probable cause to issue the said warrant. The court further finds that the detention of the defendant, Michael Edward Chase, was in fact lawful despite the defective arrest occurring at its inception.” In Lacefield v. State, Tex.Cr.App., 412 S.W.2d 906, it was held that a confession otherwise shown to have been voluntary is not rendered inadmissible by the fact that the accused was under arrest or in custody at the time, even though the arrest may have been under invalid process or without any process or legal right. See De Leon v. State, Tex.Cr.App., 466 S.W.2d 573; Randolph v. State, Tex.Cr.App., 493 S.W.2d 869. Appellant does not claim nor does the record reflect that the statement was not voluntary. It is not disputed that appellant was properly warned before making the oral statement. The evidence supports the court’s finding that there was ample reason to detain appellant and that his detention did not vitiate the confession. The record does not demonstrate, nor is it contended that appellant was held incommunicado for an extended period of time, denied food or drink or critically deprived of his capacity for self-determination. Coercion has not been urged or established. We hold that the trial court’s findings that the oral confession was admissible are supported by the evidence. Appellant next contends that evidence was seized on October 1 at appellant’s home pursuant to search warrant which was based upon an affidavit which failed to show probable cause. Thc search warrant and affidavit are in the record and are, therefore, properly before the court for review. The affiant, Officer Oxford, recites in the affidavit that he was in appellant’s home on September 10, 1970, in connection with the investigation of the death of the deceased and while there observed a hemp rope approximately % inch in diameter and 15 to 18 feet in length. The affidavit further sets out the warning given appellant before he made an oral statement on September 14, 1970, in the presence of affiant and then states: “He [appellant] then stated that the above rope was used by him in connection with the murder of Reuel Hanks.” Affiant concludes, “I do believe the above described rope is an instrumentality of the crime of murder and is presently located at the above described premises.” Appellant urges that the affidavit and warrant call for a search of “mere evidence” and that such a search is not authorized under Article 18.01, V.A.C.C.P., the pertinent portion of which reads: “A ‘search warrant’ is a written order, issued by a magistrate, and directed to a peace officer, commanding him to search for personal property, and to seize the same and bring it before such magistrate; or it is a like written order, commanding a peace officer to search a suspected place where it is alleged stolen property is commonly concealed, or implements kept for the purpose of being used in the commission of any designated offense.” Appellant argues that since the crime in question had already been committed the rope from which a piece was used to dispose of the body of the deceased was not an implement “kept for the purpose of being used in the commission of any designated offense.” Under the narrow construction of Article 18.01, V.A.C.C.P., urged by appellant, officers would be precluded from obtaining a search warrant for a bottle of poison from which a fatal dose was administered. Such a strict construction of Article 18.01 is not in harmony with Article 1.26, V.A. C.C.P., providing: “The provisions of this Code shall be liberally construed, so as to attain the objects intended by the Legislature: The prevention, suppression and punishment of crime.” Further, precedent does not require such an unnecessarily strict construction as urged by appellant. In Cagle v. State, 14 Tex.Cr.R. 354, 180 S.W.2d 928, where a search warrant issued for implements used in aiding in commission of offense of keeping a policy game, this court held that a book containing social security numbers of employees of defendant seized in the search should have been excluded, saying: “We are at a complete loss to discover how it would be possible for a book containing social security numbers of purported employees to be used in conducting a policy game, or to be classed as an implement for such purpose.” This court in Cagle went on to say: "... if property was seized which was not used or usable in committing the offense but was only of evidential value in establishing accused’s guilt of the crime charged, such evidence should, upon objection thereto, have been excluded.” (Emphasis supplied.) The distinction between Cagle v. State, supra, and the instant case is apparent. While records of social security numbers of defendant’s employees could not be used in committing the offense of conducting a policy game, the rope from which a piece was taken to bind the deceased’s body was property “used or usable in committing the offense” of murder. We reject appellant’s contention that the affidavit did not furnish probable cause for issuance of the search warrant. Appellant contends that the officers went beyond the scope of the search warrant in placing a plyboard (found near deceased’s body) against a wall in appellant’s home, matching the screw holes in the board with those on the wall, attaching chains on the wall to the board and photographing the “fitting.” Pictures of the board positioned against the wall were introduced into evidence. Appellant urges that obtaining the search warrant for the rope was a “ruse” for the officers to accomplish the “fitting” of the board to the wall. Having heretofore determined that the search warrant was valid, the officers were legally upon the premises attd the warrant did not restrict the portion of appellant’s home they were to search. In Tocher v. State, Tex.Cr.App., 501 S. W.2d 921 (1973), it was contended that photographs taken at the scene where a murder occurred “were not within the scope of the search warrant issued by the Justice of the Peace, since they were not ‘weapons and implements’ of the crime as stated in the search warrant.” As in Tocher, the officers were on the premises pursuant to a search warrant, the pictures taken reflect nothing more than the officers were able to observe at the scene, and there is nothing to indicate that the wall depicted was in any way obscured from the view of the officers as they conducted a search through appellant’s home. We conclude that the taking of the complained of pictures did not constitute a search and seizure within the meaning of the Fourth Amendment. See Tocher v. State, supra, and cases cited therein. In his last contention appellant contends that the court erred in admitting evidence seized at appellant’s home on September 10, 1970, in violation of appellant’s Fourth and Fourteenth Amendment rights. The record reflects that officers went to appellant’s home on September 10, 1970. According to the officers, appellant was not a suspect at this time. Upon arrival at appellant’s home, the officers told appellant’s parents that they had come to a “dead-end” in the investigation of the deceased’s death and that they wanted to see the rooms that appellant had earlier described in an affidavit given them. Officer Williamson testified that appellant’s parents were very cooperative and appellant’s father said “we could do anything we wanted to in the house.” The officers advised appellant’s parents that they would like to bring Officer Kitchen from the Crime,, Scene and Search Section to the house and appellant’s father responded, “You can bring anyone you want to out. You can do anything you feel is necessary for the investigation.” Appellant was present a portion of the time and, according to Williamson, appellant showed them through the house. The thrust of appellant’s contention is that the State has not sustained its burden of showing that a valid waiver of a constitutional right was given. In support of this contention appellant points to the fact that appellant’s parents were not informed of their right to refuse the search and urges that a person must be informed that consent can be withheld before there can be a valid consent. In Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 8S4 (1973), as in the instant case, the party alleged to have given the consent was not advised that he had a right to refuse to consent. The United States Supreme Court said: “Voluntariness is a question of fact to be determined from all the circumstances; and that, while the subject’s knowledge of his right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.” See Lowery v. State, Tex.Cr.App., 499 S.W. 2d 160; Cole v. State, Tex.Cr.App., 484 S.W.2d 779; De Voyle v. State, Tex.Cr. App., 471 S.W.2d 77. The instant case is unlike Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); Lowery v. State, Tex.Cr.App., 499 S.W.2d 160; Pa-prskar v. State, Tex.Cr.App., 484 S.W.2d 731, where coercive factors were present in obtaining consent to search. After reviewing the circumstances surrounding the giving of the consent to search, we conclude that the trial court’s findings in admitting the evidence found at appellant’s home on September 10, 1970, are supported by the evidence. Arguments advanced in appellant’s pro se brief have been disposed of under contentions discussed in this opinion. Finding no reversible error, the judgment is affirmed. Opinion approved by the Court. . Prior to November 1, 1972, Article 2338-1, Section 3, V.A.C.S., established the age requirements that placed a person within the jurisdiction of the juvenile court by defining “ehild” to mean any female person over the age of ten years and under the age of eighteen years and any male person over the age of ten years and under the age of seventeen years. Effective November 1, 1972, Article 2338-1, Section 3, Y.A.C.S., was amended defining the word “child” to mean any person over the age of ten years and under the age of seventeen years, . In Lacefield v. State, supra, this court, speaking through now Presiding Judge Onion, pointed out that state and federal courts have had occasion to pass on the contention that a confession following an illegal arrest is ipso facto inadmissible under Wong Sun v. United States, 371 U.S. 471, 83 S.Ot. 407, 9 L.Ed.2d 441, and that such contention has been:generally rejected. See numerous federal and state cases cited in Lacefield v. State, supra. . Article 18.01, V.A.C.C.P., “Search Warrant,” and Article 18.02, V.A.C.C.P., “Grounds for Issuance,” were amended by the 63rd Legislature, effective January 1, 1974. . The record reflects that the officers were ur the search warrant. able to find the rope which was the subject of

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Norman Paul COWART, Appellant, v. The STATE of Texas, Appellee. No. 48007. Court of Criminal Appeals of Texas. April 10, 1974. Rehearing Denied May 15, 1974. Glenn Hausenfluck, Fort Worth, for appellant. Ed Paynter, Dist. Atty., and Glenn Heatherly, Asst. Dist. Atty., Abilene, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION DAVIS, Commissioner. Appeal is taken from a conviction for perjury. Punishment was assessed by the jury at two years. The record reflects that appellant entered a plea of nolo contendere before the court to an indictment charging him with the offense of felony theft in Cause No. 10.842-A in the 42nd Judicial District Court of Taylor County on January 17, 1972. The charge of perjury in the instant case is based upon appellant’s testimony in said felony theft case. The indictment alleges that appellant did “ . . . willfully state and testify that he had never before been convicted of a felony offense in the State of Texas or any other State, which statement was material to the issue in said cause, and which statement was deliberately and willfully made and was deliberately and willfully false. . . . ” The indictment further alleges that appellant was convicted on the 1st day of April, 1968, for the felony offense of forgery of a United States Treasury check in violation of Title 18, U.S.C., Section 49S, in the United States District Court for the Northern District of Texas, in Cause No. CR-4 — 577. At the outset appellant contends that there is a variance between the allegations in the indictment and the proof in that no evidence was introduced to support facts alleged in the indictment. Appellant urges that the indictment alleges the elements of the felony theft offense upon which he was tried in Cause No. 10.842-A, and that since the “State having described the judicial proceeding with such particularity became obligated to prove same. . . . ” The indictment in the instant case recites that appellant “was duly and legally charged by indictment” and then sets out the elements of the felony theft charge in substantially the same language as appears in the indictment in said Cause No. 10.842-A. The indictment in Cause No. 10,842-A was introduced in the trial of the instant case, along with the judgment of conviction in which appellant was granted a two year probated sentence. The indictment in Cause No. 10,842-A, introduced into evidence, is not at variance with the felony theft indictment described in the perjury indictment. The appellant’s reliance on McElroy v. State, 154 Tex.Cr.R. 20, 224 S.W.2d 715 and other similar cases, holding that where the State sets forth descriptive averments in an indictment or information (such as make and license number of an automobile driven by a defendant in a driving while intoxicated case) and is thereby required to prove those descriptive allegations, is misplaced. Under the reasoning advanced by appellant, the State in a subsequent offense, driving while intoxicated case, would be required to prove the elements of the offense in the previous conviction such as date, intoxication and operation of motor vehicle by defendant if same were alleged in the indictment. Clearly, this is not the law. We reject appellant’s contention that the State was required ⅛ prove the elements of the felony theft case in which appellant was alleged to have committed perjury. Appellant contends the evidence is insufficient to prove the offense of perjury in that there is no evidence that appellant knew at the time he testified that “he had never before been convicted of a felony offense in this state or any other state.” Appellant, testifying in his own behalf, stated that it was his understanding that when he fulfilled the terms of the six month probation granted him in the United States District Court for the Northern District of Texas on April 1, 1968, that the case would be dismissed and it would be as though he were never convicted. Appellant further testified that he did not know he was making a false statement when he testified in the felony theft case that he had never been convicted of a felony. In May v. State, 125 Tex.Cr.R. 194, 67 S.W.2d 266, it was held that alleged mistake in making affidavit for submission to jury on issue of suspended sentence that defendant had never been convicted of a felony or assumption that pardon justified such statement held no defense to charge of perjury. See Castro v. State, 124 Tex. Cr.R. 13, 60 S.W.2d 211. In a perjury case it has long been held that the State need not allege and prove that accused knew a statement to be false when he made it. Gauthier v. State, 496 S.W.2d 584 and cases cited therein. The court in the instant case instructed the jury that they could not convict appellant of perjury unless they found “from the evidence beyond a reasonable doubt that at the very time the defendant made the false statement under oath, if he did, he knew that such statement was false, if it was; and if you have a reasonable doubt that the defendant knew such statement was false at the time it was made, if you have found beyond a reasonable doubt that it was false, then you will acquit the defendant and say by your verdict not guilty.” The jury chose not to believe appellant, as they had a right to do, and resolved the issue of whether appellant knew the statement was false against him. See Castro v. State, supra. No error is shown. Appellant contends that his conviction in the United States District Court for the Northern District of Texas did not constitute a conviction in “this state or any other state.” Appellant points to his Exhibit No. 1 which shows the ceding of exclusive legislative and constitutional jurisdiction over the land on which the federal courthouse in Fort Worth is located to the United States of America on March 8, 1932. Appellant urges that the State cannot define what constitutes a crime on such area and that such areas are subject to the exclusive criminal jurisdiction of the United States Government. Appellant urges that those areas over which the federal government has acquired legislative jurisdiction are subject to the exclusive criminal jurisdiction of the United States Government and in support thereof cites Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442, 83 L.Ed. 455; United States v. Unzeuta, 281 U.S. 138, 50 S.Ct. 284, 74 L.Ed. 761; United States v. Watkins, 22 F.2d 437 (N.D.Cal.1927). In the instant case appellant was not tried for an offense which occurred on land ceded the United States Government. The offense for which appellant was convicted in the instant case was the making of a false statement in a state court, an offense of which the court clearly had jurisdiction. Appellant’s argument that the State cannot define what constitutes a crime on land ceded to the United States is likewise without merit. The State introduced evidence, uncontradicted by appellant, that appellant’s conviction in federal court was for a felony offense. In Arnold v. State, 127 Tex.Cr.R. 89, 74 S.W.2d 997, where it was contended that a conviction in a federal court could not be used for the purpose of enhancing penalty, it was stated: “The offense was committed in the State of Texas, and the prosecution and conviction were had in a federal court sitting in this state.” See Lopez v. State, 171 Tex.Cr.R. 672, 352 S.W.2d 747. We reject appellant’s contention that a conviction in the United States District Court for the Northern District of Texas did not constitute a conviction in “this state or any other state.” Appellant’s remaining contentions are general allegations of error. No discussion or argument is advanced in support of same. No authorities are cited. Nothing is presented for review under Article 40.09, Section 9, Vernon’s Ann.C.C.P. The judgment is affirmed. Opinion Approved by the Court. . Willson’s Texas Criminal Forms, See. 352, provides for the charge against the defendant in the cause in which he is alleged to have committed perjury before a court in a criminal case to be described substantially as alleged in the indictment therein. . The record reflects that the trial in Cause No. CR-4r-577 in the United States District Court for the Northern District of Texas was held in the federal courthouse in Fort Worth. . In the recent case of Johnson v. State, 498 S.W.2d 198, this court rejected a contention that an offense committed on a United States Air Force base could not be proved to show a violation of the conditions of a probated sentence in a state court.

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Clyde Perry McCLINTICK, Appellant, v. The STATE of Texas, Appellee. No. 48149. Court of Criminal Appeals of Texas. Feb. 27, 1974. Rehearing Denied May 1, 1974. Charles W. Tessmer and Ronald L. Gor-anson, Dallas, for appellant. Ted Butler, Dist. Atty., Luden Campbell, Douglas C. Young, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty., and Buddy Stevens, State’s Asst. Atty., Austin, for the State. OPINION DOUGLAS, Judge. This is an appeal from a conviction for the offense of possession of marihuana. The court assessed punishment at five years. w Appellant contends that the trial court erred in accepting his plea of guilty on the ground that Article -26.13, Vernon’s Ann. C.C.P., was not complied with when the court failed to inquire if he so pled because of “any persuasion or delusive hope of pardon.” The admonishment correctly gave the range of punishment. The trial court ascertained that appellant was pleading guilty because he was guilty and not from fear and not because he had been promised anything. Appellant apparently recognizes that sufficient compliance with the statute was made under this Court’s holdings in Espi-nosa v. State, Tex.Cr.App., 493 S.W.2d 172, and Mitchell v. State, Tex.Cr.App., 493 S.W.2d 174, as he urges that we overrule our decisions there and adopt the dissenting view in each of those cases. This we decline to do. It appears that in the present case the court was in a better position to determine that appellant was not pleading guilty because of “ . . . persuasion or delusive hope of pardon” by ascertaining that he had not been promised anything, nor was he doing it out of fear. Williams v. State, Tex.Cr.App., 497 S.W.2d 306; Mitchell v. State, supra. As in Williams, supra, the appellant also contends that it was error for the trial court not to question him about his sanity. Article 26.13, supra, provides that a plea of guilty shall not be received unless it plainly appears that the defendant is sane. The record reflects that the trial court asked appellant’s counsel if he had an opinion as to the appellant’s sanity, to which counsel replied that in his opinion the appellant was of sound mind. The court was able to observe appellant and converse with him. No issue of appellant’s sanity was raised. Absent a showing that an issue of sanity was made at the time the guilty plea was entered, the appellant cannot complain on appeal of the trial court’s failure to ask questions or adduce evidence as to his sanity. Williams v. State, supra; Kane v. State, Tex.Cr.App., 481 S.W.2d 808. We hold as we did in Espinosa v. State, supra, and Kane v. State, supra, and as we do here, that while the exact language of Article 26.13, supra, should be used in admonishing defendants, the admonishment in question reflects sufficient compliance with the statute. The judgment is affirmed. ONION, P. J., and ROBERTS, J., dissent. OPINION ON THE APPELLANT’S MOTION FOR REHEARING DALLY, Commissioner. The Appellant’s Motion for Leave to File the Motion for Rehearing was granted. The appellant complained that due consideration was not given to the following ground of error raised in his appellate brief filed in the trial court. “The failure of the trial court to inquire of the appellant if he had anything to say in his own behalf prior to sentencing rendered the sentence illegal.” It is the appellant’s contention that Article 42.07, Vernon’s Ann.C.C.P. does not replace the common law right of allocution; that is, the opportunity for a defendant to present his personal plea to the Court in mitigation of punishment before sentence is imposed. He argues that therefore Article 1.27, V.A.C.C.P. would give him the right to common law allocu-on. The appellant admits that he did not raise this contention before the trial court prior to the imposition of sentence. We therefore find that nothing is presented for review. See Graham v. State, 498 S.W.2d 197 (Tex.Cr.App.1973); Valdez v. State, 479 S.W.2d 927 (Tex.Cr.App.1972); Johnson v. State, 14 Tex.Cr.R. 306 (1883). The appellant’s motion for rehearing is overruled. Opinion approved by the Court. . Article 42.07, Y.A.C.C.P. provides: “Before pronouncing sentence, the defendant shall be asked whether he has anything to say why the sentence should not be pronounced against him. The only reasons which can be shown, on account of which sentence cannot be pronounced, are: “1. That the defendant has received a pardon from the proper authority, on the presentation of which, legally authenticated, he shall be discharged. “2. That the defendant is insane; and if sufficient proof be shown to satisfy the court that the allegation is well-founded, no sen-508 S.W.2d — 39Vz fence shall be pronounced. Where there is sufficient time left, a jury may be impaneled to try the issue. Where insufficient time does not remain, the court shall order the defendant to be confined safely until the next term of the court, and shall then cause a jury to be impaneled to try such issue; “3. Where there has not been a motion for a new trial or a motion in arrest of judgment made, the defendant may answer that he has good grounds for either or both of these motions and either or both motions may be immediately entered and disposed of, although more than ten days may have elapsed since the rendition of the verdict; and “4. When a person who has been convicted escapes after conviction and before sentence and an individual supposed to be the same has been arrested he may before sentence is pronounced, deny that he is the person convicted, and an issue be accordingly tried before a jury as to his identity.” . Some of the history of common law allocution is recited in Green v. United States, 365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961). . Article 1.27, V.A.C.C.P. provides: “If this Code fails to provide a rule of procedure in any particular state of case which may arise, the rules of the common law shall be applied and govern.”

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John T. CAMERON, Appellant, v. The STATE of Texas, Appellee. No. 48150. Court of Criminal Appeals of Texas. Feb. 27, 1974. John T. Montford, Lubbock, for appellant. Jim D. Vollers, State’s Atty., and Buddy Stevens, Asst. State’s Atty., Austin, for the State. OPINION DAVIS, Commissioner. Appeal is taken from a conviction for robbery by firearms where a plea of guilty was entered before the jury. Punishment was assessed at five years. In his sole contention, appellant urges that the court erred in not properly admonishing him upon his plea of guilty as to range of punishment as required by Article 26.13, Vernon’s Ann.C.C.P. The record reflects that the court admonished appellant as to range of punishment as follows: “The Court: Mr. Cameron, the court must admonish you of the consequences of such a plea before the Court can accept the plea of guilty. You understand that if you are found guilty in this matter that you will be subject to a punishment of five years to life in the Texas Department of Corrections ? “The Defendant: Yes, I do.” Article 1408, Vernon’s Ann.P.C., provides that when a firearm or other deadly weapon is used in the commission of a robbery the punishment shall be “death or by confinement in the penitentiary for any term not less than five years.” Appellant argues that he could have conceivably received a thousand year sentence, since the court correctly instructed the jury in his charge to assess punishment “for any term not less than five years.” The almost identical question was before this court in the recent case of Jorden v. State, Tex.Cr.App., 500 S.W.2d 117, where it was contended the trial court incorrectly admonished defendant in a murder case as to the range of punishment upon a plea of guilty. In Jorden, the trial court admonished appellant that punishment for such offense was “ . . . confinement in the Texas Department of Corrections for not less than two years nor more than life”; whereas the statutory range under Article 1257, V.A.P.C., is “ . . . life or for any term of years not less than two.” This court divided in Jorden with the majority concluding that the omission in the admonishment could not have misled him to his detriment. In a footnote the majority stated an accused cannot be assessed a penalty greater than “life” in prison. In the instant case, we conclude that the omission in the admonishment could not have misled appellant to his detriment. Jorden v. State, supra. No reversible error being shown, the judgment is affirmed. Opinion approved by the Court. ONION, P. J., and ROBERTS, J., dissent. ODOM, Judge (concurring). I fully agree with the affirmance of this case. However, since this court is divided on the interpretation of this mandatory statute, I will express myself further on why I align myself with the majority. Article 26.13, V.A.C.C.P., provides that: “If the defendant pleads guilty, or enters a plea of nolo contendere he shall be admonished by the court of the consequences-, and neither of such pleas shall be received unless it plainly appears (to the trial court) that (1) he is mentally competent, and (2) is uninfluenced (a) by any consideration of fear, (b) or by any persuasion, (c) or delusive hope of pardon, prompting him to confess his guilt.” (Emphasis, numbers and letters added.) Article 1.26, V.A.C.C.P., provides that: “The provisions of this Code shall be liberally construed, so as to attain the objects intended by the Legislature: The prevention, suppression and punishment of crime.” It is clear that Article 26.13, supra, is a two part statute. The first part causes no problem with any of the members of this court since it is clearly mandatory that the defendant be admonished as to the consequences of his plea. However, the second part tells us that it must plainly appear to the trial court that the defendant is mentally competent and uninfluenced (by fear, persuasion, or delusive hope of pardon). No magic words need be stated by the trial court in making the determination. For example, the magic words “delusive hope” may not be as well understood by a defendant as some others. It is, of course, necessary that the records before us contain sufficient language to show that such does, in fact, plainly appear. This statute’s first part appears to the writer to be mandatory because of the way it is written. The first part is separated from the second part by a semicolon. Webster’s Dictionary defines a semicolon as “a mark of punctuation conventionally used chiefly to separate units that contain elements separated by commas, and to separate co-ordinate clauses having a relationship in meaning not explicitly stated.” A semicolon shows that two sentences, each of which should stand alone, have been combined into one sentence. In 79 C.J.S., at page 1038, it is written: “The main reason for using the semicolon is that the break is too decided for the comma, and it has been said that the semicolon is used only to separate parts of a sentence more distinctly than a comma.” (Emphasis added.) The Supreme Court of Texas states: “ . . . it is settled that every word in a statute is presumed to have been used for a purpose; and a cardinal rule of statutory construction is that each sentence, clause and word is to be given effect if reasonable and possible. .” Perkins v. State, 367 S.W.2d 140, at 146 (Tex.Sup.1963). I submit that the legislature expressed its intent to make only the first part of Article 26.13, V.A.C.C.P, mandatory by the inclusion of a semicolon. I concur. .Compare, e. g., McClintiok v. State, Tex. Cr.App., 508 S.W.2d 616 (this day decided) ; Ex Parte Williams, Tex.Cr.App., 500 S.W.2d 127; Harris v. State, Tex.Cr.App., 500 S.W. 2d 126; Jorden v. State, Tex.Cr.App., 500 S.W.2d 117; Johnson v. State, Tex.Cr.App., 500 S.W.2d 115; Williams v. State, Tex.Cr. App., 497 S.W.2d 306; Higginbotham v. State, Tex.Cr.App., 497 S.W.2d 299; Prude-liomme v. State, Tex.Cr.App., 495 S.W.2d 941; Mayse and Ross v. State, Tex.Cr.App., 494 S.W.2d 914; Heathcock v. State, Tex. Cr.App., 494 S.W.2d 570; Martinez v. State, Tex.Cr.App., 494 S.W.2d 545; Clayton v. State, Tex.Cr.App., 493 S.W.2d 176; Mitchell v. State, Tex.Cr.App., 493 S.W.2d 174; Espenosa v. State, Tex.Cr.App., 493 S.W.2d 172. . See also and compare the five opinions in Jones v. State, Tex.Cr.App., 496 S.W.2d 566 where the court was divided in the interpretation of Article 40.09, Section 4, V.A.C. C.P., another mandatory statute. . Prior to January 1, 1974, the Article used “sane” instead of “mentally competent.” . It is noted that Section 1.05(b) of the 1974 Penal Code provides for construction of sucli code under Sections 2.01, 2.02, 2.04 and 3.01 through 3.12 of the Code Construction Act .(Article 5429b-2, Vernon’s Texas Civil Statutes). Section 2.01 states, in part: “Words and phrases shall be read in context and construed according to the rules of grammar and common usage.” . See Mitchell v. State, supra, wherein the court, speaking through Judge Douglas, stated: “More defendants would understand the question asked than one framed in the words of the statute.”

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Ex parte Dario CASAREZ. No. 48205. Court of Criminal Appeals of Texas. May 1, 1974. Fred Fick, Fort Worth, for appellant. Jim. D. Vollers, State’s Atty., Austin, for the State. OPINION ON PETITIONER’S MOTION FOR REHEARING ODOM, Judge. Our opinion on original submission is withdrawn, but we adopt the following statement of the facts in this case contained therein: “This is a post-conviction habeas corpus proceeding brought under the provisions of Article 11.07, Vernon’s Ann.C.C.P., by the petitioner, an inmate of the Texas Department of Corrections. “Petitioner was convicted of the offense of ‘burglary of a private residence at nighttime by the use of firearms’ in Cause No. 72,603 in the Criminal District Court of Tarrant County on May 12, 1967, and assessed a term of eighteen years’ confinement. No appeal was perfected. “Petitioner filed an application for writ of habeas corpus alleging that his conviction was tainted by the admission in evidence, during the punishment stage of the trial, of a prior aggravated assault conviction which was void because he was not represented by counsel at the time of the trial of that case, and was indigent, and was deprived of his right to counsel. The trial court did not conduct a hearing, but entered findings of fact and conclusions of law denying the application on July 31, 1973. “Pursuant to our order of September 6, 1973, the trial court appointed counsel for petitioner, and conducted an evidentiary hearing on November 12, 1973 to determine the merits of petitioner’s contentions. Evidence was heard, after which the trial court found that at the trial in Cause No. 72,603, supra, resulting in petitioner’s conviction and eighteen-year sentence, evidence of three convictions of petitioner for misdemeanor aggravated assault was introduced by the State at the punishment stage of the trial, in each of which prior convictions the punishment included imprisonment in jail; that petitioner was indigent and confined in jail at the time of each of the convictions; that he was not represented by counsel in any of the cases; that he was not advised of his right to appointed counsel; and that petitioner did not knowingly and intelligently waive his right to counsel. “In addition, the court also found that ‘The evidence concerning the three prior convictions of petitioner was not objected to by petitioner or his attorney, and was admitted into evidence before the jury.” The findings of fact are supported by the record. Under prior decisions of this Court the prior convictions were void and therefore inadmissible on the trial of Cause 72,603, supra. E. g., Ramirez v. State, Tex.Cr.App., 486 S.W.2d 373. See also Walker v. State, Tex.Cr.App., 486 S. W.2d 330; Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 2S8, 19 L.Ed.2d 319; Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530; Tucker v. United States, 389 U.S. 888, 88 S.Ct. 128, 19 L.Ed.2d 189; Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374. The facts in this case are distinguishable from those found in Aldrighetti v. State, 507 S.W.2d 626 (1974), in that petitioner was assessed punishment including imprisonment upon his prior misdemeanor convictions, whereas Aldrighetti’s prior misdemeanor conviction resulted in no such confinement being assessed. The situation in Aldrighetti was therefore held to be outside the scope of the requirement of counsel in misdemeanor cases announced in Ar-gersinger v. Hamlin, supra. Petitioner’s trial resulting in the challenged conviction as stated above was had on May 12, 1967, over five years before the decision in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), upon which our opinion in Ramirez, supra, was grounded. Consequently, counsel’s failure to object upon a ground not yet established as a defect of constitutional magnitude did not constitute a waiver. Ex parte Taylor, 484 S.W.2d 748 (Tex.Cr.App. 1972). The relief prayed for is granted. The petitioner is ordered released to the Sheriff of Tarrant County to answer the indictment in Cause No. 72,603 in the Criminal District Court of that county. It is so ordered. . “On November 1, 1973, petitioner filed in the trial court a supplement to his petition alleging two additional prior void misdemeanor convictions introduced in evidence in Cause No. 72,603.

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Charles Michael SKUNDA, Appellant, v. The STATE of Texas, Appellee. No. 48090. Court of Criminal Appeals of Texas. May 1, 1974. Melvyn Carson Bruder and Barry P. Helft (Court-appointed), Dallas, for appellant. Henry Wade, Dist. Atty., and John H. Hagler, Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION DOUGLAS, Judge. This is an appeal from a conviction for the offense of murder. The punishment was assessed by the court at life. Dean Densman, the deceased, was a confidential informer who had furnished information to the narcotics section of the Dallas police department. Michelle Raley testified that the appellant, whose street name was “Speed Freak Charlie,” had told her that he intended to kill Dean Densman. James E. Carver, Jr., testified that after the appellant had been arrested and been released on bond he, the appellant, told him, Carver, “He ratted on a bunch of people. He ratted on me, so I killed him.” Allan Ray Lassiter testified that he had seen the appellant and Densman at a Dallas restaurant shortly before the shooting. Immediately after hearing four or five gunshots fired, he saw the appellant turn and run into a nearby alley. A white Pontiac with license number MRV 806, driven by a woman, was then seen speeding away from the scene. Bill James McRae, Jr., testified that he had sold a handgun to the appellant. The .32 caliber gun found in appellant’s possession when he was arrested was shown to be the same gun McRae had sold him and also to have been the same gun which fired the fatal shots. Appellant’s sole contention is that the pistol seized from his possession was improperly admitted into evidence because it was obtained as the result of an unlawful arrest. The circumstances surrounding the arrest were as follows: D. L. Carpenter, the officer who arrested appellant, testified that on the day in question a dispatch was put out over the police radio to be on the lookout for a 1965 white Pontiac Tempest with license number MRV 806. The radio dispatch related further that a witness had seen a car fitting the description speeding away from the scene of a shooting and that the car was probably being driven by a white female. He also testified that he was specifically looking for the appellant. Officer Carpenter testified that he first observed the car travelling from Carroll Avenue to Elm Street and that the sole reason he stopped the vehicle was because of the earlier radio dispatch. When Officer Carpenter stopped the vehicle, the appellant was driving and was the sole occupant of the car. Carpenter informed the appellant that he was looking for the car and that a white female was driving it. The appellant said, “Oh, yeah, that was Marie. I loaned her my car.” Within a few seconds after he had stopped the appellant, Officer L. S. Lamountain arrived. Officer Lamountain testified that upon his arrival the appellant and Officer Carpenter were standing just behind the appellant’s car and in front of Carpenter’s patrol car. He walked over to the appellant’s car and observed a brown paper bag on the seat. Lamountain testified that the brown paper bag was wrapped so that there appeared to be a gun inside the bag. He then opened the car door and reached in and picked up the package. It contained a pistol. The car was specifically described to include the license number. Although the reason is not clear from the record, the officers were also looking for the appellant in connection with the homicide, apparently as a result of the police broadcast. The trial court had sufficient evidence to conclude that there was probable cause for the officer to stop the car. After the car was stopped, the brown paper bag containing what appeared to be a pistol was in plain view and, therefore, was lawfully seized by the officers. Coleman v. State, Tex.Cr. App., 500 S.W.2d 472; Jackson v. State, Tex.CrApp., 449 S;W.2d 279. No reversible error having been shown, the judgment is affirmed.

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Ex parte Tommy Neil THOMPSON. No. 48541. Court of Criminal Appeals of Texas. May 1, 1974. Roger D. Sanders, Sherman, for appellant. Jim D. Vollers, State’s Atty., Austin, for the State. OPINION GREEN, Commissioner. This is an appeal from an order of the trial court after a habeas corpus hearing held for the purpose of seeking a reduction of bail before trial in two cases where appellant stands indicted for the offense of delivery of a controlled substance; namely, cocaine in one indictment and methamphetamine in the other. Both offenses are alleged to have been committed in January, 1974. Appellant contends that the court abused its discretion in refusing to reduce the amount of bail to a reasonable amount. The record reflects that appellant was arrested on February 15, 1974 in the case involving methamphetamine, but was released on his own recognizance. Three days later he was again arrested, this time in the case charging delivery of cocaine. After this arrest, he was placed in jail, and bail was set by the court at $10,000.00 in each case. The record reflects that appellant, 22 years of age, had no money and no other material assets. Before his arrest, he lived in Grayson County with his mother. She testified that her sole assets, which she was willing to borrow on to assist appellant in furnishing bail, was a- non-negotiable savings certificate of deposit in the amount of $2,700.00. Appellant testified in answer to a question by his counsel that the cases against him “were strong,” but on cross-examination stated that he was not indicating that he would plead guilty. Counsel argues that “appellant does have this collateral to offer, however, in lieu of hail; his ties to Grayson County; his family’s ties to Grayson County; his obedience to his mother and her directives to be present at trial, his clean prior record with the police, and the fact that at one point four days before appellant’s final arrest, the Sheriff of Grayson County believed in him enough to release him on personal bail.” Article 17.15, Vernon’s Ann.C.C.P., provides : “The amount of bail to be required in any case is to be regulated by the court, judge, magistrate or officer taking the bail; they are to be governed in the exercise of this discretion by the Constitution and by the following rules: “1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with. “2. The power to require bail is not to be so used as to make it an instrument of oppression. “3. The nature of the offense and the circumstances under which it was committed are to be considered. “4. The ability to make bail is to be regarded, and proof may be taken upon this point. Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.” In fixing the amount of bail, the court should consider the nature of the offense, the punishment permitted under the law, the accused’s criminal record, if any, as well as the accused’s ability or inability to make bail. Ex parte Josey, Tex.Cr. App., 500 S.W.2d 148; Ex parte Gomez, Tex.Cr.App., 499 S.W.2d 158. The inability to make bail does not, alone, control the amount. Gomez, supra; Holliman v. State, Tex.Cr.App., 485 S.W.2d 912. The punishment provided by law for the offenses of which appellant stands indicted is confinement for any period of years not less than five nor more than 99, or life. Controlled Substances Act 1973, Art. 4.-03(b)(1); art. 4.02; Art. 4.01(b) (1). Considering all of the evidence in the record, and applying the foregoing legal principles, we find the bail in the total sum of $20,000.00 in the two cases to be excessive. We conclude that the trial court abused its discretion in setting total bail in that amount. Josey, supra; Ex parte Skinner, Tex.Cr.App., 496 S.W.2d 633. Appellant is granted bail in the sum of $7,500.00 in each of the two cases. It is so ordered. Opinion approved by the Court.

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STATE of Texas ex rel. Carol VANCE, District Attorney 176th Judicial District, Harris County, Texas, Relator, v. William HATTEN, District Judge, 176th District Court, Harris County, Texas, Respondent. No. 48690. Court of Criminal Appeals of Texas. May 8, 1974. Elaine Hocker and Jim Skelton, Houston, for respondent. Carol S, Vance, Dist. Atty., Andy Tobias and Jim Moss, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., for relator. OPINION PER CURIAM. This is an action seeking the issuance of writ of mandamus against William Hatten, Judge of the 176th District Court of Harris County, Texas. Leave to file the application for writ of mandamus was granted and the application is before this court upon petition and answer supported by brief and oral argument. The following events give rise to this proceeding. Paula Ann Kelly was indicted in Harris County on September 23, 1971, for the offense of murder with malice alleged to have occurred “on or about” the 13th day of September, 1971. On March 21, 1972, Kelly waived trial by jury and entered a plea of guilty before the 176th Judicial District Court to the charge against her, the State having waived the death penalty then in effect. Her punishment was assessed at two years’ confinement in the Texas Department of Corrections on July 6, 1972, by said court. The court denied her motion for probation. On August 7, 1972, she was formally sentenced. Notice of appeal was then given. On the 4th day of April, 1973, this court affirmed the judgment of the trial court in Cause No. 46,778 and on the 20th day of April, 1973, mandate issued by this court addressed to the 176th District Court of Harris County which in part stated, “We command you to observe the order of our said Court of Criminal Appeals in this behalf and in all things to have it duly recognized, obeyed and executed.” The record before us reflects that on March IS, 1974, in a hearing before the 176th Judicial District Court Judge William Hatten, the following transpired: “THE COURT: ... it appears that heretofore on or about July the 6th, 1972, you [Paula Ann Kelly] appeared in this court and entered a plea of guilty “After having read the indictment to you, the Court found that the Defendant was guilty and that the Defendant had committed the offense as alleged in the indictment and assessed punishment at two years confinement in the Texas Department of Corrections. Now are you ready to be sentenced in that case ? “MR. SKELTON (Defense counsel) : Yes, Your Honor, we are. “THE COURT: Is it your desire, Paula Ann Kelly ? “THE DEFENDANT: Yes, sir. “THE COURT: All right, then it appearing to the satisfaction of this court that the ends of justice and best interest of the public as well as of you, the Defendant, will be subserved thereby, the Court is suspending the imposition of this sentence and placing you on probation for two years so long as you comply with the following conditions of probation. “Now, it appears that, likewise, that the two years is now past from the time you were originally sentenced. There will be no further reason for you to appear before your probation officer in reference to this case . . . ” The record reflects that counsel for the State was present and urged that the court was without jurisdiction to take such action. The court nevertheless entered the following order: “On this the 15th day of March, A.D. 1974, the Court ordered the alias capias on the Mandate returned. The Defendant, Paula Ann Kelley, appeared in person with counsel, Jim Skelton, the State appeared by her District Attorney. The Court granted the motion of the Defendant that the sentence imposed against the Defendant, Paula Ann Kelly, on August 7, 1972 be set aside and ordered the imposition of this sentence suspended and Defendant placed on adult probation as of August 7, 1972.” Four days later, on March 19, 1974, the 176th District Court entered its order terminating probation, setting aside the judgment of conviction, and dismissing the indictment. Relator seeks a writ of mandamus to compel William Hatten, Judge of the 176th District Court, to set aside the order dated March 15, 1974, setting aside sentence imposed against Paula Ann Kelly on August 7, 1972, and ordering the imposition of sentence suspended and placing the said Paula Ann Kelly on probation as of August 7, 1972. Relator further asks that respondent Hatten be compelled to set aside the order of March 19, 1974, dismissing the indictment and setting aside the judgment of conviction, and that the clerk and sheriff of Harris County be directed to carry out the necessary process to effect the sentence. First, we must determine whether this court has jurisdiction to grant the relief prayed for. Article V., Section 5 of the Constitution of Texas, Vernon’s Ann.St., provides that this court and the judges thereof “shall have the power to issue the writ of habeas corpus, and under such regulations as may be prescribed by law, issue such writs as may be necessary to enforce its own jurisdiction.” Article 4.04, Vernon’s Ann.C.C.P., provides that the “court and each member thereof shall have, and is hereby given, power and authority to grant and issue and cause the issuance of writs of mandamus and certiorari agreeable to the principles of law regarding said writs, whenever in the judgment of said court or any member thereof the same should be necessary to enforce the jurisdiction of said court.” While this court has no general power to issue writs of mandamus, it can issue mandamus to enforce its own jurisdiction. See Ex parte Giles, Tex.Cr.App., 502 S.W.2d 774; Bradley v. Miller, Tex. Cr.App., 458 S.W.2d 673; State ex rel. Vance v. Clawson, Tex.Cr.App., 465 S.W. 2d 164. We must next determine whether the issuance of mandamus is applicable under the facts presented by the instant proceeding. The question may be succinctly stated. May a district court suspend the execution of sentence and place upon probation one convicted in that court of a felony offense after an appeal has been made to and conviction affirmed by the Court of Criminal Appeals of this State and after the issuance of mandate by said court and before the convict has actually begun serving the sentence imposed? An affirmative answer to this question would render the entire appellate process nothing more than an exercise in futility. “The Court of Criminal Appeals is the court of last resort in this state in criminal matters. This being so, no other court of this state has authority to overrule or circumvent its decisions or disobey its mandates.” State ex rel. Wilson v. Briggs, 171 Tex.Cr.R. 479, 351 S.W.2d 892; State ex rel. Vance v. Clawson, supra. Respondent cites Article 42.12, Section 3, V.A.C.C.P., where it is provided that judges of courts having original jurisdiction shall have the power, “after conviction or a plea of guilty . . . where the maximum punishment assessed against the defendant does not exceed ten years imprisonment, to suspend the imposition of the sentence and place the defendant on probation.” He argues that the term “conviction” contemplates a final judgment, including the return of a mandate by an appellate court. This argument was answered adversely to respondent in State v. Klein, 154 Tex.Cr.R. 31, 224 S.W.2d 250, where it was held that the District Court of Willacy County did not have jurisdiction after issuance of mandate from this court to consider the question of probation under the judgment of conviction which had been affirmed by this court. Once this court has acquired jurisdiction it is only by judgment of this court that jurisdiction over the case is restored to the 176th District Court of Harris County. By judgment, order and mandate of this court, the 176th District Court of Harris County acquired jurisdiction of the case only to see that the judgment of this court was carried out. State v. Klein, supra. We hold that the 176th District Court clearly did not have jurisdiction to suspend execution of sentence and place respondent Kelly on probation under the facts herein. We conclude that the issuance of a writ of mandamus is necessary to protect this court’s jurisdiction and to insure that the mandate of this court not be thwarted and the relator has no other adequate remedy. The respondent Hatten is directed to set aside his orders of March 15, 1974, and March 19, 1974, setting aside sentence imposed against Paula Ann Kelly on August 7, 1972 (and ordering imposition of sentence suspended and placing Kelly on probation) and dismissing the indictment and setting aside the judgment of conviction. Respondent is further directed to issue a capias for Kelly’s arrest and to perform the ministerial duty of carrying out the mandate of this court. No motion for rehearing will be entertained. It is so ordered.

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Roberto HEREDIA, Appellant, v. The STATE of Texas, Appellee. No. 48272. Court of Criminal Appeals of Texas. May 1, 1974. Thomas Rocha, Jr., San Antonio (On appeal only), for appellant. James A. Mashburn, Dist. Atty., Jerry Buckner, Asst. Dist. Atty., Midland, and Jim D. Vollers, State’s Atty., Austin, for the State. OPINION ODOM, Judge. This is an appeal from a conviction for the offense of possession of heroin. Appellant having been previously convicted of a felony violation of the Texas Uniform Narcotic Drug Act (see Art. 725b, Section 23(a), Vernon’s Ann.P.C.), and having been found to have been twice previously convicted of a felony less than capital (see Art. 63, V.A.P.C.), punishment was assessed at life imprisonment. Appellant in his first ground of error contends reversible error was committed when the trial court permitted the reading to the jury, at the commencement of the guilt stage of the trial, of that portion of the indictment alleging the prior conviction of a felony violation of the Texas Uniform Narcotic Drug Act over his timely objection, and relies upon Article 36.01, Subd. 1, Vernon’s Ann.C.C.P., which provides: “The .indictment or information shall be read to the jury by the attorney prosecuting. When prior convictions are alleged for purposes of enhancement only and are not jurisdictional, that portion of the indictment or information reciting such convictions shall not be read until the hearing on punishment is held as provided in Article 37.07.” The State relies upon Parasco v. State, 165 Tex.Cr.R. 547, 309 S.W.2d 465, and Gamez v. State, Tex.Cr.App., 403 S.W.2d 418, for the proposition that the allegation under Article 725b, Sec. 23(a), supra, of a prior felony conviction for violation of the Texas Uniform Narcotic Drug Act “is an element of the . . . offense itself and not an allegation such as would merely enhance the punishment . . . ” That holding however, was expressly overruled in Bell v. State, Tex.Cr.App., 504 S.W.2d 498, wherein this Court held that such an allegation under Article 725b, Sec. 23(a), supra, is within the meaning of Article 36.01, supra, “for purposes of enhancement only and . . . not jurisdictional.” Error was therefore committed. In Bell, supra, no reversible error was found because the objection was raised for the first time on appeal. Cf. Cox v. State, Tex.Cr.App., 422 S.W.2d 929. Here, however, objection was made prior to the reading of the indictment. Reversal is therefore required. In light of our disposition of appellant’s first ground of error, we decline to reach the other grounds raised. For the reason stated, the judgment is reversed and the cause remanded.

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Alvin Lee ROBINSON, Appellant, v. The STATE of Texas, Appellee. No. 48220. Court of Criminal Appeals of Texas. May 1, 1974. Mark A. Schwartzman, San Antonio, for appellant. Ted Butler, Dist. Atty., Gordon V. Armstrong, C. Nick Rothe, David K. Chapman, Asst. Dist. Attys., San Antonio, and Jim D. Vollers, State’s Atty., Austin, for the State. OPINION DAVIS, Commissioner. Appeal is taken from a conviction for robbery by assault. After the jury returned a verdict of guilty, punishment, enhanced under the provisions of Article 62, Vernon’s Ann.P.C., was set by the court at life. Appellant’s sole contention is that the court erred in permitting testimony, over his objection, of an extraneous offense allegedly committed by appellant. Richard Perner testified that he was the sole employee of the Fina Sun-Glo Station located at Cherry and Caroline Streets in San Antonio after 4:00 p. m. on December 3, 1972. Perner described the business as being a self-service gasoline station that also kept beer, bread, milk, candy and tobacco for sale. About 9:30 p. m. two black men approached Perner. One of the men, identified as appellant, exhibited a .38 revolver, pointed it toward Perner and said, “This is a holdup,” and “Open the cash register.” Appellant removed more than a hundred dollars from the cash register and the two men departed. Perner described the robbers as being dressed alike in blue jeans and blue shirts. Appellant testified in his own behalf and denied taking part in the robbery, stating that “I was crossed into by some snitch that gets paid to do this sort of thing. Simply because I am an ex-convict the snitch said I did it and that was all it took.” Appellant named one Henry Bauer as the “snitch” and described him as an enemy. Appellant further testified that he was at home with his wife from “4:30 in the evening until the next morning” on the date in question. Appellant denied that he owned a pistol or had a pistol “when all this transpired.” Appellant also denied owning any “blue pants.” In rebuttal, over objection, the State called Louis Aguilar, who testified he was robbed at gunpoint by appellant and another black man in a Jif-E Mart Store on Ingram Street in San Antonio about 7:00 p. m. on November 12, 1972. Aguilar stated that appellant pointed a .38 revolver toward him and said, “Empty your cash register.” According to Aguilar, appellant’s companion did not say anything during the course of the robbery. Aguilar was the sole employee in the store during the robbery. The court gave a limiting charge at the guilt stage of the trial, limiting the use of testimony regarding the extraneous offense to the issue of identity. There were no objections to such charge or any special requested issues. The testimony of appellant went beyond merely denying that he committed the robbery. On the occasion in question appellant stated that he was at home with his wife; that he did not own a gun or even have a pistol “when all this transpired.” Appellant blamed his arrest and being charged with the crime on a “snitch” who was identified as an enemy. Perner described the robber as being dressed in blue jeans and appellant denied that he owned any “blue pants.” The foregoing testimony served to raise the fact issue of the identity of appellant as one of the two men who committed the robbery. See Cobb v. State, Tex.Cr.App., 503 S.W.2d 249; Mitchell v. State, Tex.Cr.App., 503 S.W. 2d 562; Ransom v. State, Tex.Cr.App., 503 S.W.2d 810; Gilmore v. State, Tex. Cr.App., 493 S.W.2d 163. Special distinguishing characteristics common to both the extraneous offense and the primary offense, which occurred twenty-two days apart, are present. Cobb v. State, supra; Gilmore v. State, supra; Ford v. State, Tex.Cr.App., 484 S.W.2d 727; Newman v. State, Tex.Cr.App., 485 S.W.2d 576. Both offenses occurred in the early part of the night in stores in San Antonio where there was only one employee. The offenses were committed by two black males, appellant being identified as the person armed with a .38 revolver in both robberies. Appellant was identified as the spokesman and the person taking the lead in both instances. The combination of the foregoing factors is such as to set the two crimes apart from the similarities which normally exist in the commission of the same type of crime. We conclude that the trial court did not err in admitting evidence of the extraneous offense. The judgment is affirmed. Opinion approved by the Court.

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Augustin Robledo REYNA, Appellant, v. The STATE of Texas, Appellee. No. 48159. Court of Criminal Appeals of Texas. May 1, 1974. Cox & Hurt, Plainview, for appellant. Jim D. Vollers, State’s Atty., Austin, for the State. OPINION DAVIS, Commissioner. Appeal is taken from a conviction for driving a motor vehicle while intoxicated. Punishment was assessed by the jury at three days in the county jail and a fine of fifty dollars. Appellant contends that the court erred in admitting the result of a breathalyzer test over appellant’s objection that the State had failed to show the use of properly compounded chemicals in such test. Highway Patrolman Johnson testified that following the arrest of appellant on December 3, 1972, for driving while intoxicated, he took appellant to the Department of Public Safety office in Plainview for a breathalyzer test. Johnson stated that he was a certified breathalyzer operator and related the eight step procedure he used in administering the breathalyzer test to appellant. Over appellant’s objection that the State had failed to show that the chemicals used in the test were properly compounded, Johnson testified that the test showed 0.12 percent of alcohol. On cross-examination, Johnson testified: “Q. You don’t prepare the ampuls that are used in the breathalyzer test? “A. No, sir. I am an operator. “Q. That’s what I’m saying. And you don’t necessarily know what chemical is in a particular ampul that you get? “A. No, sir, I don’t. “Q. And you are not present when they are prepared? “A. Not the ampuls, no. “Q. The ampuls are delivered over here to this office by somebody, are they not? “A. DPS chemist. “Q. Okay. So what he does with them before they get there, of your own knowledge, you don’t know? “A. No, sir, I don’t.” Johnson further testified that he used a gauge in determining if the correct solution were present for making the test. The jury was instructed relative to 0.10 percent or more of alcohol in a person’s blood raising a legal presumption that such person was under the influence of intoxicating liquor. In French v. State, 484 S.W.2d 716, this court set forth the necessary predicate for the admissibility of an interpretation of the results of a breath test previously announced in Hill v. State, 158 Tex.Cr.R. 313, 256 S.W.2d 93. It was held that the State must show: (1) the use of properly compounded chemicals; (2) the existence of periodic supervision over the machine and operation by one who understands scientific theory of the machine; (3) proof of the result of the test by a witness or witnesses qualified to translate and interpret such result so as to eliminate hearsay. Appellant’s complaint is directed to the State’s failure to comply with the first prong of the test in failing to show the use of properly compounded chemicals. The witness Johnson testified he was a breathalyzer operator, not a chemist, did not know what chemicals were in the ampul used to conduct the test, was not present when the ampuls were prepared and that such ampuls were delivered to the office (where the test was conducted) by a “DPS chemist.” We conclude, as this court did in French v. State, supra, under a similar fact situation, that the State failed to meet the first prong of the Hill test requiring the State to show the use of properly compounded chemicals. Therefore, we hold that the court erred in allowing the jury to consider the results of the breathalyzer test. For the reason discussed, the judgment is reversed and the cause remanded. Opinion approved by the Court. . Trial was on February 14, 1973. Article 802f, Vernon’s Ann.P.C., was amended (effective June 1, 1971) to provide that 0.10 percent or more by weight of alcohol in a person’s blood is prima facie proof of the fact that a person is under the influence of intoxicating liquor. (Articles 802d to 802f were transferred pursuant to Section 5 of Acts 1973, 63rd Leg., p. 995, eh. 399, to Articles 67011-3 to 67011-5, V.A.C.S.).

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Quinby C. HENDRICKS, Appellant, v. The STATE of Texas, Appellee. No. 47826. Court of Criminal Appeals of Texas. April 24, 1974. Rehearing Denied May 15, 1974. Joe J. Newman, Houston, for appellant. Carol S. Vance, Dist. Atty., Phyllis Bell, Charles Cate, Asst. Dist. Atty., Houston, and Jim D. Vollers, State’s Atty., Austin, for the State. OPINION DOUGLAS, Judge. This is an appeal from a conviction for murder without malice. The jury assessed the punishment at five years. Preston Hicks, Sally Prudence Hicks and the appellant were jointly indicted for the murder of Thomas Wootton. The main contention of the appellant is that the court erred in refusing to charge that Preston Hicks, a co-indictee who testified for the State, was an accomplice witness as a matter of law. We agree and reverse. Prior to the shooting of the deceased by Preston Hicks, there had been some arguments between Hicks and the appellant who were on one side, and a group including Tommy Wootton and Jim Barham. Hicks testified that he and the appellant had been threatened. He also related that appellant said the two were going to the A.B.J. Lounge to get their “business straight.” This meant whatever action or force that was necessary, which included killing, to get it straight. He testified that the appellant was armed with a “three-eighty automatic” and he (Hicks) was armed with a shotgun when they went to the lounge. When they arrived at the lounge, Hicks asked the group present about the threat. According to Hicks, Wootton appeared to be reaching for a pistol. Hicks then ran toward Wootton with the shotgun raised to strike him against the head when the gun accidentally discharged and hit him. Some of the other group fired and appellant returned the fire. Hicks also fired the shotgun after hitting Wootton. The State answers the appellant’s contention that the court should have instructed the jury that Hicks was an accomplice witness as a matter of law by urging that his testimony showed an accident and did not incriminate appellant. It is to be noted that Hicks gave damaging testimony against appellant when he testified about getting their business straight which included killing, if necessary, and that the two went armed to the place of the homicide. When one is a co-indictee and testifies for the State against an accused, he is an accomplice witness as a matter of law. The trial court’s failure to respond to the objection was error and necessitates a reversal of the judgment. See Lindsey v. State, 146 Tex.Cr.R. 459, 176 S.W.2d 192, and Herrera v. State, 115 Tex.Cr.R. 526, 27 S.W.2d 211. Much of the incriminating testimony of Hicks was not covered by other witnesses. Even if there be sufficient evidence without the testimony of Hicks, we cannot conclude that the error in the charge was harmless. Cf. Allen v. State, Tex.Cr.App., 461 S.W.2d 622, and Gonzales v. State, Tex.Cr.App., 441 S.W.2d 539. The judgment of conviction is reversed and the cause is remanded.

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Gloria Jean LINCOLN, Appellant, v. The STATE of Texas, Appellee. No. 48126. Court of Criminal Appeals of Texas. May 1, 1974. John Ellis, Dallas, for appellant. Henry Wade, Dist. Atty., William L. Hubbard, Asst. Dist. Atty., Dallas, and Jim D. Vollers, State’s Atty., Austin, for the State. OPINION DAVIS, Commissioner. Appeal is taken from a conviction for sale of heroin. After the jury returned a verdict of guilty, punishment was assessed by the court at twenty-five years. At the outset appellant contends that the indictment upon which she was tried was fatally defective. The name of the accused in the indictment returned by the grand jury was listed as “Jean.” Prior to trial appellant filed a written exception to the “form of the indictment” because it did not state a complete name, did not state that the name of the party indicted was unknown, and failed to give a reasonably accurate description of such party. Prior to announcement of ready by appellant, and out of the presence of the jury, counsel for appellant stated, “The Defendant, Gloria Jean Lincoln, is present in Court, Your Honor,” and “she doesn’t know if she is the ‘Jean’ to which they are referring in the indictment, which is what our exception is directed to.” The State requested that all papers in the case be corrected to reflect appellant’s true name as “Gloria Jean Lincoln,” and a written order was entered by the court directing that the indictment and all other papers in the case “wherein the Defendant’s name appears as ‘Jean’ be changed to ‘Gloria Jean Lincoln.’ ” As corrected, the indictment was read in the presence of the jury and appellant entered her plea thereto. Appellant objected to the indictment as read as being different from the indictment read to her at arraignment. Article 26.08, V.A.C.C.P., provides: “If the defendant, or his counsel for him, suggests that he bears some name different from that stated in the indictment, the same shall be noted upon the minutes of the court, the indictment corrected by inserting therein the name of the defendant as suggested by himself or his counsel for him, the style of the case changed so as to give his true name, and the cause proceed as if the true name had been first recited in the indictment.” Appellant points to the fact that the State had a one-sheet transcription of the grand jury testimony marked for identification (not introduced into evidence) during the trial. Said sheet which reflects appellant’s name and recites, “A sale of heroin to P. Tate, Jr.,” was introduced by appellant at the hearing on motion for new trial and shows appellant’s full name listed thereon. In the recent case of Jones v. State, Tex.Cr.App., 504 S.W.2d 442, this court said: “As noted in Cresencio v. State [73 Tex.Cr.R. 436, 165 S.W. 936], and Wilcox v. State [35 Tex.Cr.R. 631, 34 S.W. 958], the purpose of naming the accused is for his identification. It is a matter of form which can easily be altered at the election of the accused.” (Emphasis supplied.) Article 28.09, V.A.C.C.P., provides: “If the exception to an indictment or information is only on account of form, it shall be amended, if defective, and the cause proceed upon such amended charge.” Article 28.10, V.A.C.C.P., provides: “Any matter of form in an indictment or information may be amended at any time before an announcement of ready for trial upon the merits by both parties, but not afterward. No matter of substance can be amended.” (Emphasis supplied.) Amendment of the indictment in the instant case to reflect appellant’s full name came prior to appellant’s announcement of ready on the merits. The case was tried on the indictment as amended. Undercover agent Tate identified appellant as the person he bought heroin from on the occasion in question and stated that he only knew her by the name “Jean.” See Boles v. State, Tex.Cr.App., 488 S.W. 2d 113. Under the foregoing circumstances we do not find prejudice to appellant’s substantial rights requiring reversal. Appellant contends that the court erred in permitting Officer Weir to testify in that his name did not appear on the list of State’s witnesses furnished appellant in response to her motion seeking such information. Pursuant to a motion filed by appellant, the State furnished appellant a list of witnesses it might call in its case in chief. Weir’s name did not appear thereon and when he was called to testify appellant objected to the court allowing such witness to testify. The witness did not testify to any fact of the crime charged. Appellant urges that Weir, the officer who arrested appellant, testified to a relationship between appellant and a third party described by undercover agent Tate as playing a role in the sale for which appellant was tried. The State argues that the testimony of the witness was offered to clear up a matter opened up by appellant’s questions regarding the arrest of appellant and points to the fact that the arrest occurred on December 16, 1972, while the sale which constitutes the basis of the offense was on October 7, 1972. The State further urges that it did not know the name of the arresting officer until after the trial started and did not anticipate that he would be called as a witness. The State’s good faith is supported by the record which reflects that the arrest was for an unrelated offense (escape from federal prison). Appellant was later served with indictment in this case on February 2, 1973. Appellant has not shown bad faith on the part of the prosecutor in failing to disclose the name of a witness whose testimony related solely to events surrounding an arrest unrelated to the sale transaction in question. We conclude that the record does not show the trial court abused its discretion in allowing the witness Weir to testify. See Clay, Martin and Knox v. State, Tex.Cr.App., 505 S.W.2d 882 (1974); Morales v. State, Tex.Cr.App., 466 S.W.2d 293. Appellant contends that the court erred in overruling his objection to the prosecutor’s argument misquoting the law relative to an indictment containing the right name of the accused. Appellant argued to the jury that an indictment was returned against a person named “Jean,” and that the evidence “strongly suggests that the Police Department found Gloria Jean Lincoln in the jail after they had returned an alias indictment and the record speaks for itself and insofar as her relationship with the police might be and that they are trying Gloria Jean Lincoln for this.” The following complained of argument occurred during the closing argument of the State: “And I tell you now that there is no law anywhere in any law book in the State of Texas and never has been that says that the State must have the right name in the indictment for the Defendant.” Appellant’s objection to this argument was overruled. An argument which contains a statement of the law contrary to the court’s charge is error. Davis v. State, Tex.Cr.App., 505 S.W.2d 882 (1974); Singleton v. State, Tex.Cr.App., 479 S.W.2d 672; Daywood v. State, 157 Tex.Cr.R. 266, 248 S.W.2d 479. While the statement of the law made by the prosecutor is not. accurate, such argument is not contrary to the law contained in the court’s charge and we do not perceive such argument to be of such a harmful nature as to require reversal. In her last contention appellant urges that the court erred in refusing to permit her to proceed to trial before the court, without a jury. In support of this contention appellant states “that the refusal to permit a defendant to be tried by the court, without a jury, violates her rights under the Fourteenth Amendment to the Constitution of the United States.” No further argument is advanced other than a review of the question which was presented under appellant’s first contention and there disposed of in this opinion. Article 1.13, V.A.C.C.P., provides that a defendant in a felony case less than capital “shall have the right, upon entering a plea, to waive the right to trial by jury, conditioned, however, that such waiver must be made in person by the defendant in open court with the consent and approval of the court, and the attorney representing the State.” The appellant’s written waiver of trial by jury in the instant case reflects the State’s notation thereon refusing to approve such waiver. The argument here advanced that due process insures the right to trial before the court without a jury is simply untenable. Contentions raised by appellant in a pro se brief have been reviewed and found to be without merit. Finding no reversible error, the judgment is affirmed. Opinion approved by the Court. . Article 21.02, Section 4, Vernon’s Ann. C.C.P., provides: “An indictment shall be deemed sufficient if it has the following requisites: “4. It must contain the name of the accused, or state that his name is unknown and give a reasonably accurate description of him.” Article 21.07, V.A.C.O.P., provides: “In alleging the name of the defendant, or of any other person necessary to be stated in the indictment, it shall be sufficient to state one or more of the initials of the Christian name and the surname. When a person is known by two or more names, it shall be sufficient to state either name. When the name of the person is unknown to the grand jury, that fact shall be stated, and if it be the accused, a reasonably accurate description of him shall be given in the indictment.” . We urge the courts to follow the admonishment in footnote number 1 in Boles v. State, supra: “It would be well to follow more closely the provisions of Articles 21.02, Section 4 and 21.07, V.A.C.C.P., in alleging the name of the accused . . . See Jones v. State, supra. . See Articles 21.02(4) and 21.07, Y.A.C.C.P.

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Danny CHANCELOR, Appellant, v. The STATE of Texas, Appellee. No. 48615. Court of Criminal Appeals of Texas. May 1, 1974. Jim L. Hooper, Texarkana, for appellant. Jim D. Vollers, State’s Atty., Austin, for the State. OPINION ONION, Presiding Judge. This is an appeal from a conviction for the offense of the unlawful sale of a narcotic drug, to-wit: heroin; punishment was assessed at five (5) years. This case raises important questions concerning the preparation of a record on appeal under Art. 40.09, Vernon’s Ann.C.C. P. A statement of some of the relevant events is pertinent. The record reflects that on October 1, 1973, appellant was sentenced and gave notice of appeal. On October 17th, appellant filed a request with the clerk of the trial court asking that the record on appeal include “all instruments, documents, motions and other papers filed in said cause,” together with “all other matters required by the (Code of Criminal Procedure).” The same day, appellant filed a designation of material for inclusion in the record designating “the entire record as the record on appeal” in this cause. At the same time, appellant filed a request that the court reporter prepare a transcription of her notes “including all matters taken in evidence, all testimony, closing arguments, and hearings on all (m)otions presented to the Court.” On November 19th, appellant mailed a certified letter to the court reporter, together with a copy to the clerk of the trial court, requesting that he be kept “posted as to your progress in this matter.” The transcription of the court reporter’s notes was filed in the trial court on December 26th, and the clerk mailed notice of completion of the record to appellant on January 3, 1974. The trial court approved the record on February 14th. Thereafter, on April 3rd, the trial court entered an order in which the clerk was directed to transmit the record to this court. Such order recited that the clerk mailed notice of completion of the record on January 3rd, that no objections to the record were filed within the time prescribed by law, that the trial court approved the record on February 14th, and that no brief had been filed by appellant within the time prescribed by law. The record was filed in this court on April 9, 1974, and notice was sent to appellant that the case was set for submission on May 29th. On April 15th, appellant filed his objections to the appellate record in this court, together with a motion to remand. These instruments allege that, after receiving notice of completion of the record, appellant timely filed his objections to the record in the trial court on January 14th, that no hearing was ever held in the trial court thereon, that the trial court never ruled on such objections, that appellant was never notified that the record had been approved, and therefore, appellant was unable to file his brief pursuant to Art. 40.09, Sec. 9, Vernon’s Ann.C.C.P. Attached to these instruments is a copy of the appellant’s objections to the record, addressed to the trial court, and bearing the file mark of the clerk of the trial court, dated January 14th. The objections to the record in the trial court were not included in the record which reached this court. However, the objections to the record filed in the trial court stated that the record did not contain: (1) the appellant’s motion for discovery and the order of the court overruling the same, (2) the court’s order overruling appellant’s motion for change of venue, (3) the testimony of the State and appellant on appellant’s motion for change of venue, and (4) appellant’s first motion for continuance and the order of the court overruling the same. Article 40.09, Sec. 1, Vernon’s Ann.C.C.P., provides that the record on appeal shall contain all matters designated by the parties pursuant to Sec. 2 thereof, “ . . . but shall always include, whether designated or not, copies of the material pleadings, material docket entries made by the court, the charge, verdict, judgment, sentence, notice of appeal, any appeal bond, all written motions and pleas and orders of the court, and bills of exception." (Emphasis supplied) Consequently, motions for discovery and the orders of the court thereon, motions for change of venue and the orders of the court thereon, and motions for continuance and the orders of the court thereon, should be included in the record whether designated or not. Further, appellant’s objections to the record because it did not contain the evidence taken on the motion for change of venue should also be considered in light of his request of October 17th that the transcription of the court reporter’s notes include the hearings on all motions presented to the court. Apparently, appellant’s objections to the record filed on January 14th were not called to the attention of the trial court. However, Art. 40.09, Sec. 7, Vernon’s Ann. C.C.P., provides that if objections are timely made to the record, “the court shall set the matter down for hearing, and, after such hearing, shall enter such orders as may be appropriate to cause the record to speak the truth and the findings and adjudications in such orders, if supported by evidence, shall be final.” We further note that Sec. 7 also provides: “Such proceeding shall be included in the record, and the entire record approved by the trial court.” We therefore remand the cause to the trial court for proceedings not inconsistent with this opinion and for such further proceedings as are required by Secs. 8, 9, 10, 11, 12, and 13 of Art. 40.09, Vernon’s Ann.C.C.P. It is so ordered. . “Each party may file with the clerk a written designation specifying matter for inclusion in the record. The failure of the clerk to include designated matter will not be ground for complaint on appeal if the designation specifying such matter be not filed with the clerk within sixty days after notice of appeal is given.”

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Ex parte James E. GUESS. No. 48542. Court of Criminal Appeals of Texas. May 1, 1974. Roger D. Sanders, Sherman, for appellant. Jim D. Vollers, State’s Atty., Austin, for the State. OPINION GREEN, Commissioner. This is an appeal from an order of the court after a habeas corpus hearing held for the purpose of seeking a reduction of bail before trial in three cases wherein appellant is under indictment for the delivery of mescaline, lysergic acid diethylamide (L.S.D.) and methamphetamine, respectively. Bail was set at a total of $60,000.00, being apportioned between the cases at $10,000.00 in the first case, $20,000.00 in the second, and $30,000.00 in the third. Appellant initially contends that the trial court abused its discretion in refusing to transfer appellant to a more appropriate place than the Grayson County jail, or to release him from incarceration because he was afflicted with severe asthmatic bronchitis. At the habeas corpus hearing, appellant testified that he was 33 years old, a native of Grayson County, and that for the past four years he had lived with his mother in Sherman since returning from service in Viet Nam. Before that, he had served in the Marines for nine years and nine months, and had received an honorable medical discharge due to his having asthmatic bronchitis. His sole property consisted of an automobile worth about eight or nine hundred dollars. Confinement in jail with the accompanying dust, smoke, “tight places where you can’t get air,” and inability to get proper medical attention aggravated his condition. About six days before the hearing at about 7:00 P.M., he had a bad seizure of deep coughing, became very dizzy, and passed out. He was taken by a deputy sheriff to a hospital, where he received treatment and was returned to jail. On direct examination, he stated that since then he has been having trouble with receiving prescribed medication from the jail attendants. He stated on cross-examination that since being returned to jail from the hospital he had not had any serious blackouts or asthmatic attacks, and that he had received the right medications from the deputies. Dr. Roberson, placed on the stand by appellant, testified that he treated appellant at the hospital about a week before the hearing. He diagnosed the condition as acute asthmatic bronchitis; i. e., a spasm of the bronchial tubes with shortness of breath. He stated that confinement by itself would not cause asthma, but factors such as smoking, offensive body odors, stale air, dust conditions may aggravate a pre-existing condition. He further stated to appellant’s counsel that, while he had not been in every cell in the Grayson County jail, “the ones I have been in would not fit your description.” In answer to a question by the court, he stated that he found nothing in appellant’s condition that confinement in jail, per se, would probably endanger his life. The testimony of appellant’s mother was that she and her husband, appellant’s stepfather, could not raise more than $1500.00 to finance bail in these cases. She had made no effort to secure bail from anyone other than members of the family, who were unable to help. Article 11.25, Vernon’s Ann.C.C.P., reads: “When a judge or court authorized to grant writs of habeas corpus shall be satisfied, upon investigation, that a person in legal custody is afflicted with a disease which will render a removal necessary for the preservation of life, an order may be made for the removal of the prisoner to some other place where his health will not be likely to suffer; or he may be admitted to bail when it appears that any species of confinement will endanger his life. Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.” The trial court, in denying appellant relief, impliedly found that the evidence did not establish that a removal from the Gray-son County jail was necessary for the preservation of appellant’s life. Art. 11.25, V.A.C.C.P., supra; Ex parte Newsom, Tex.Cr.App., 237 S.W.2d 995; Ex parte Shacklett, 156 Tex.Cr.R. 217, 241 S.W.2d 849; Ex parte Johnson, 60 Tex.Cr.R. 50, 131 S.W. 316, 31 L.R.A.,N.S. 916. The evidence supports such finding. The first contention is overruled. Appellant next contends that the trial court abused its discretion in refusing to reduce the amount of bail to a reasonable amount. Article 17.15, V.A.C.C.P., provides: “The amount of bail to be required in any case is to be regulated by the court, judge, magistrate or officer taking the bail; they are to be governed in the exercise of this discretion by the Constitution and by the following rules: “1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with. “2. The power to require bail is not to be so used as to make it an instrument of oppression. “3. The nature of the offense and the circumstances under which it was committed are to be considered. “4. The ability to make bail is to be regarded, and proof may be taken upon this point. Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.” The facts of the cases and the circumstances under which they were committed were not shown by the evidence. Taking into consideration the nature of the offense also includes the punishment permitted under the law. Ex parte Josey, Tex. Cr.App., 500 S.W.2d 148, Ex parte Gomez, Tex.Cr.App., 499 S.W.2d 158. The punishment fixed by law for the offenses of delivery of L.S.D. and methamphetamine is not less than 5 years nor more than 99, or life, and for delivery of mescaline, not less than 2 nor more than 10 years. Controlled Substances Act 1973, Art. 4.03(b)(1), (2) ; Art. 4.02, Art. 4.01(b)(1), (3). Considering all of the evidence in the record, including, among other elements, the evidence that appellant has never been convicted of a felony, and the inability of appellant to make bail in the amount set, and other factors reflected by the evidence, and applying the foregoing legal principles, bail of $60,000.00 is excessive. Ex parte Josey, supra, and authorities there cited. We conclude that the trial judge abused his discretion in setting total bail at $60,000. In deciding this, we note that appellant’s inability to make such bail is not the sole criteria considered by us. Therefore, appellant is granted bail in the sum of $7,500.00 in each of the two cases charging delivery of L.S.D. and methamphetamine, and $5,000.00 in the case involving delivery of mescaline. It is so ordered. Opinion approved by the Court.

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Marion Lloyd HORNE, Appellant, v. The STATE of Texas, Appellee. No. 48349. Court of Criminal Appeals of Texas. May 1, 1974. Britt Thurman, Abilene, for appellant. Ed Paynter, Dist. Atty. and Bob Lindsey, Asst. Dist. Atty., Abilene, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION KEITH, Commissioner. Appellant was convicted, in a trial before a jury, of robbery by assault. The court imposed the mandatory life sentence pursuant to the enhancement statute, Art. 62, Vernon’s Ann.P.C. Appellant does not challenge the sufficiency of the evidence, confining his appeal to an attack upon the court’s action in admitting his confession into evidence. Another case against this appellant has been decided recently by this Court. See Horne v. State, Tex.Cr.App., 506 S.W.2d 596 (1974). Early in the morning of December 13, 1972, Wilma Coppock, the night manager of the Ramada Inn in Abilene, was assaulted and the money in the cash register of the motel taken from her custody. Her assailants then tied her arms with a coat hanger and fled. Upon the trial, she was unable to identify appellant as one of the assailants. Appellant did not testify at either stage of the bifurcated trial. During the guilt-innocence stage of the trial, the court conducted an exhaustive inquiry into the voluntary nature of the confession, in the absence of the jury, following the rules laid down in Jackson v. Denno and Lopez v. State. He then entered a comprehensive order fulfilling the requirements of Art. 38.22, Vernon’s Ann. C.C.P., finding the confession to have been freely and voluntarily made and admissible in evidence. The charge contained an instruction on the voluntary nature thereof. Appellant filed a pre-trial motion to suppress the confession and both of his grounds of error are predicated upon 'events which transpired at that hearing. From the record of the earlier hearing, which was offered at the hearing in the absence of the jury at the trial, we learn the sequence of events leading up to the signing of the confession. Sometime before January 19, 1973, about a month after the robbery involved in this case, appellant was charged with burglary in Parker County, lodged in jail in Weath-erford, and was supplied with a court-appointed attorney, Ed Todd. Abilene police officers, learning of his incarceration, sought to interrogate him about the Ramada Inn robbery as well as certain other unsolved crimes in Taylor County. Appellant declined to talk to them until Todd was present. Upon Todd’s appearance, he discussed the matter with the officers but declined to permit the interrogation until he could discuss appellant’s burglary case further with Hon. Alex Tandy, District Attorney of Parker County. Todd testified at the pre-trial hearing that he and appellant were vitally interested in avoiding a trial in Parker County with an enhancement count under Art. 63, V.A.P.C. He said that Tandy called the District Attorney in Abilene by telephone, discussed the matter with him briefly, but that he could hear only Tandy’s side of the conversation. From Todd’s testimony, it appears that Tandy — by “implication” — inferred that appellant would be tried for burglary with an enhancement paragraph in the indictment unless he “got his business square in Abilene” by “cooperating with the authorities” there. Todd said that Tandy made it clear that appellant could best get his business “square” and could “cooperate” with the Abilene officers by signing a confession. Tandy did not testify. Todd then entered into a discussion with the Abilene officers in the absence of Tan-dy, attempting to get them committed to a recommendation of a term of years if appellant “cooperated.” He testified: “[A]nd they said, as I recall, that they did not make recommendations to the District Attorney on a term of years.” Todd did not talk to the District Attorney of Taylor County and appellant did not speak with the District Attorney of Parker County. Sergeant Emerson of the Abilene Police Department, present in Weatherford to investigate the appellant’s implication in the robbery, testified that he did not “make any statements of [or] implication that he [appellant] might get any type of a deal, or a better deal by virtue of giving” the confession and “I told him that there would be no deals.” Appellant was warned of his rights by a magistrate in Weatherford before the appearance of the Abilene officers; and, in addition, Sergeant Emerson testified that the formal Miranda warnings were given and they were embodied in the confession. In the presence of Todd, appellant’s lengthy confession was dictated, typed, and signed. Appellant contends that the confession was coerced by psychological rather than physical pressure and was thus rendered involuntary in character and inadmissible. The State readily concedes that a confession is inadmissible if it is a result of psychological pressure. Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963). But, that is not the record which we review. Todd was attempting to eliminate the recidivism charge in the Parker County burglary while appellant—through Todd—was negotiating with Sergeant Emerson on a term of years in Taylor County. Appellant does not point to any testimony in our record, from any source, which would support an inference that he would receive any term of years less than life if he confessed to the robbery in Abilene. Thus, there is no evidence supporting a contention that he was coerced into giving the confession. Todd, as defense attorney, was not clothed with authority to bind either district attorney or either district judge upon the sentence to be imposed in either case. Cf. Benavides v. State, 475 S.W.2d 243, 245 (Tex.Cr.App.1971); Weatherly v. State, 477 S.W.2d 572, 576 (Tex.Cr. App. 1972). Under the record which we review, the trial court had ample grounds upon which to base his conclusion that the confession was voluntary and admissible. Having considered the “totality of the circumstances” surrounding the making of the confession, we find no error in its admission in evidence. Genter v. State, 473 S. W.2d 35, 37 (Tex.Cr.App.1971). Ground one is overruled. In his second ground of error, appellant claims that the trial court erred “in failing and refusing to let the defendant take the stand for purposes of testifying about the coercion of the confession” at the hearing on his motion to suppress. The predicate for this ground of error [the statement of which flies in the teeth of the holding of this court in Lopez v. State, supra, and its progeny] is found in this colloquy between the court and counsel at the hearing on the motion to suppress: “[DEFENSE COUNSEL]: Your Hon- or, it is my understanding of the Jackson vs. Denno, 378 U.S. 368 [, 84 S.Ct. 1774, 12 L.Ed.2d 908], that I may not place my client on the stand to testify concerning these threats and coercions made by the various officers and offices [sic] of the State of Texas with immunity as to the testimony being used at a later time. Is this the Court’s understanding of the Jackson vs. Denno decision ? “THE COURT: Well, I am familiar quite well with Jackson against Denno, but I am not sure what the implications are on down the line on the thing . I think that case relates to voluntariness of a confession; does it not? “[DEFENSE COUNSEL]: Yes, sir. “THE COURT: I don’t know what the implications are on down the line on the trial of the case. “[DEFENSE COUNSEL]: In that event, Your Honor, we rest.” We agree with appellant that he had an absolute right to testify as to the coercion of the confession at the hearing on the motion to suppress with the cross-examination confined to the voluntary nature thereof; and, further, that he could not thereafter be called upon to testify because of his appearance at the motion to suppress. Lopez v. State, supra. But, appellant did not take the stand and the court did not deny him an opportunity to do so. Moreover, at the hearing on the admissibility of the confession during the trial, appellant did not even attempt to bind the court as to its future rulings in the event he did testify in the absence of the jury. Understandably, appellant cites no case in support of his contention; and, finding none in our own research, ground two is overruled. The judgment of the trial court is affirmed. Opinion approved by the Court. . The State relied upon a prior conviction of theft of property over the value of $50 to support the enhancement. Such conviction was of like character with robbery by assault. Haywood v. State, Tex.Cr.App., 507 S.W.2d 756 (1974), and cases therein cited. . 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). . 384 S.W.2d 345 (Tex.Cr.App.1964). . According to Todd, the Weatherford authorities had appellant “up pretty tight” since tliey had caught him inside the burglarized premises. At the time he confessed to the Ramada Inn robbery he had not been indicted in Parker County; but, at a later date, he was indicted there for burglary and received a sentence which was not enhanced by his prior convictions.

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Ex parte Joe Bob BENNETT. No. 48376. Court of Criminal Appeals of Texas. May 1, 1974. Mark S. Ward, Weldon, for appellant. Jim D. Vollers, State’s Atty., Austin, for the State. OPINION ODOM, Judge. This is a habeas corpus proceeding under Article 11.07, Vernon’s Ann.C.C.P., in which petitioner seeks credit for the time he spent in the Texas Department of Corrections while his first conviction was on appeal. Petitioner seeks to have this Court order that he be granted credit for time spent in the Texas Department of Corrections while his case was on appeal, with “good time” included. On January 26, 1967, petitioner was convicted of the offense of burglary and sentenced to eight years. Petitioner was returned to Moore County on January 31, 1968, when his original conviction was reversed by this Court on December 6, 1967. See Bennett v. State, 422 S.W.2d 438 (Tex. Cr.App.1968). Following retrial, on December 16, 1968, petitioner was again convicted for this same offense and sentenced to eight years. His conviction was affirmed by this Court on April 22, 1970. See Bennett v. State, 452 S.W.2d 477 (Tex.Cr. App.1970). Petitioner’s sentence was ordered to begin on May 19, 1970, and he did not receive any credit for the time he had previously spent in the Texas Department of Corrections. In the case at bar, petitioner was constitutionally entitled to credit for time he spent in the Texas Department of Corrections pending his original appeal. See Vessels v. State, 467 S.W.2d 259 (Tex.Cr. App.1971) ; Ex parte Washburn, 459 S.W. 2d 637 (Tex.Cr.App.1970). As for “good time” credit upon the time petitioner spent in the Texas Department of Corrections, we also conclude that petitioner should be considered for good time credit. The Supreme Court of the United States in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) stated in reference to good time: “We hold that the constitutional guarantee against multiple punishments for the same offense absolutely requires that punishment already exerted must be fully ‘credited’13 in imposing sentence upon a new conviction for the same offense.” In footnote 13 to the above quote, the Court stated: “Such credit must, of course, include the time credited during service of the first prison sentence for good behavior, etc.” The Texas Department of Corrections’ records attached to petitioner’s writ do not establish exactly how much “good time” credit, if any, that he is entitled to. Therefore, the question whether he is entitled to “good time” credit must be determined pursuant to the normal rules and regulations of the administration of the Texas Department of Corrections’ disciplinary system, which allows a denial of “good time” credits depending on an inmate’s conduct within the institution. See Ex parte Enriquez, 490 S.W.2d 546 (Tex. Cr.App.1973). Petitioner is entitled to the time he has served in the Texas Department of Corrections pending the reversal of his original appeal. Furthermore, a copy of this opinion shall be sent to the Texas Department of Corrections for determination of good time credit, if any. It is so ordered. . Prom January 26,1967 until January 31,1968.

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Sergio C. QUINTANILLA, Appellant, v. The STATE of Texas, Appellee. No. 48200. Court of Criminal Appeals of Texas. May 1, 1974. Roger C. Rocha, Laredo (On appeal only), for appellant. Robert O. Smith, Dist. Atty., Larry Laden, Asst. Dist. Atty., Austin, and Jim D. Vollers, State’s Atty., Austin, for the State. OPINION DALLY, Commissioner. The appellant’s conviction is for knowingly, intentionally and with lascivious intent exposing his private parts to a person under sixteen years of age; the punishment, imprisonment for eight years. The grounds of error present the contentions that the trial court did not have jurisdiction to try this cause and that the trial court erroneously failed to conduct a separate hearing on the issue of the appellant’s mental competency to stand trial. The appellant without supporting authority argues that the Honorable David C. McAngus, Judge of the 201st District Court of Travis County, did not have jurisdiction to try this offense which was allegedly committed prior to the date the newly created 201st District Court became effective. The argument that a Court would not have jurisdiction to try an offense which was committed before it was created is clearly unreasonable and not worthy of further comment. This ground of error is overruled. It is also urged that the trial court did not have jurisdiction because the order transferring the cause from the 167th District Court of Travis County to the 201st District Court was signed only by the Judge sitting in the 201st District Court. This contention is also without merit, particularly when raised for the first time on appeal. See Duran v. State, 505 S.W.2d 863 (Tex.Cr.App.1974) and the cases there cited. The appellant urges that the record shows a separate hearing on the appellant’s competency to stand trial should have been had and he cites and relies upon Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L. Ed.2d 815 (1966) and Ainsworth v. State, 493 S.W.2d 517 (Tex.Cr.App.1973). The State on the other hand argues that the record fails to show that such a hearing was required and relies upon Pate v. Robinson, supra; Perryman v. State, 494 S. W.2d 542 (Tex.Cr.App.1973); Ainsworth v. State, supra; Zapata v. State, 493 S.W. 2d 801 (Tex.Cr.App.1973); Sandlin v. State, 477 S.W.2d 870 (Tex.Cr.App.1972) ; and Townsend v. State, 427 S.W.2d 55 (Tex.Cr.App.1968). The test for determining competency to stand trial is whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) and San-dlin v. State, supra. If the evidence which comes before the Court from any source is sufficient to create in the Judge’s mind a reasonable ground to doubt the competency of the accused to stand trial he should conduct a hearing out of the presence of the jury to determine whether or not there is in fact an issue as to the competency of the accused to stand trial. Ainsworth v. State, supra, and Perryman v. State, supra. The appellant says that two documents appearing in the record and the testimony of witnesses at the punishment phase of the trial are sufficient to show that the trial court erred in failing to conduct a hearing to determine the appellant’s competency to stand trial. One of these instruments is an “Order to Summon Jury Panel.” The order, signed by the Honorable Tom Blackwell, Judge of the 167th District Court, in pertinent part reads: “On this the 13th day of April, A.D. 1973, came on to be heard the motion of the State of Texas through it’s (sic) District Attorney for an ORDER directing the Sheriff of Travis County, Texas to summon twelve qualified jurors to try the above named defendant on the issue of his present sanity, and it appearing that the defendant is not in the Travis County Jail and has been returned to the Travis County Jail by the Austin State Hospital after a period of treatment and no regular jury being available and a necessity existing for the impannelling of a jury to try the above named defendant on the issue of his present sanity, At the bottom of the page is the notation: “This one is to be contested and will not be heard on this date.” The record shows no further action in regard to this order. The record also contains a motion filed by appellant’s trial counsel which was filed April 19, 1973, but does not show that it was ever called to the trial court’s attention. It reads in pertinent part as follows: “I. “Defendant’s attorney has learned that Defendant received a severe injury to his head about three years ago. That since said injury Defendant has had recurring severe headaches from time to time so much so that he was received at Brackenridge Hospital on August 22, 1972 and on November 22, 1972 for treatment of such headaches. An attempt is now being made to acquire the medical records reflecting said treatment. Attached as Exhibits A and B are statment (sic) of charges for said two admissions. Defendant’s mother is also attempting to locate the record of his treatment for the severe injury received two or three years ago. “II. “Defendant has been psychiatrically examined by Dr. Richard J. Alexander and although his diagnosis reveals that Defendant is sane by the McNaughten Rule he has detected emotional instability which in the opinion of Defendant’s attorney call for more extensive examination of Defendant. “III. “Defendant’s attorney has interviewed Defendant at length on several occasions and has detected a detachment and disorientation on part of Defendant. This attorney, in good conscience, could not submit Defendant to trial without being fully satisfied of Defendant’s sanity. “IV. “Defendant should receive a physical examination to determine if he has a tumor or other brain pathology. “V. “A Mexican physician has already diagnosed him as psychotic but he is not licensed in Texas or anywhere in the U. S.” The trial commenced and the jury’s verdict was received on May 14, 1973. A punishment hearing was held on May IS, 1973. At that hearing the appellant’s sister testified that prior to his military service the appellant had many friends, socialized with everybody and had attended college for one year, but that after his return from Vietnam he didn’t socialize with anybody, not even his family, and that he secluded himself, could not get along with others and “that his family thought he was very nervous and needed to see a doctor or something.” A university student and long time friend of the appellant testified to his good reputation. This witness said the appellant lived near him in “Jester” and that he saw the appellant on the campus several times a week. He related one instance where a group had been playing poker and the appellant sat nearby talking to himself. There is also in the record a motion entitled “State’s Motion Contesting Defendant’s Motion for Criminal Commitment of Defendant to Austin State Hospital for Mental and Physical Examination.” Attached to this motion is a letter from Lee F. Scarborough, M.D., directed to the District Attorney which shows that the physician examined the appellant on the 1st day of March, 1973. The physician’s letter says that based upon the examination his psychiatric opinion was that the appellant was presently competent to stand trial and to assist his attorney in preparing a rational defense and that the appellant did not require hospitalization. The appellant testified at both the guilt-innocence ánd punishment phases of the trial. His testimony was direct and lucid. He admitted to no inculpatory matters about which the State’s witnesses had testified and he gave explanations concerning such testimony, attempting to show innocent conduct. He testified that he had attended junior college for a year. He was then employed as an “assisting chem lab technician” by a company in Chicago, Illinois. Thereafter he returned to college for another year. He was living on the campus and was majoring in Biology and Natural Sciences just prior to the time of the alleged offense. His testimony gave no indication of lack of mental capacity, past or present. We have considered this record in light of the above authorities and find that the trial court did not err in failing to conduct a hearing to determine whether the appellant was competent to stand trial. See and compare the rent cases of Noble v. State, 505 S.W.2d 543 (Tex.Cr.App.1974); Carpenter v. State, 507 S.W.2d 794 (Tex. Cr.App., decided April 10, 1974) ; and Per-ryman v. State, 507 S.W.2d 541 (Tex.Cr. App., Feb. 6, 1974). The judgment is affirmed. Opinion approved by the Court.

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Eunice Faye NABORS, Appellant, v. The STATE of Texas, Appellee. Nos. 48030, 48031. Court of Criminal Appeals of Texas. April 17, 1974. Rehearing Denied May 8, 1974. Tom A. Boardman, Dallas, for appellant. Henry Wade, Dist. Atty. and W. T. West-moreland, Jr., Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION MORRISON, Judge. The offenses are the intentional infliction of physical injury on a child 14 years of age or younger in violation of Article 1148a, Vernon’s Ann.P.C.: the punishment, four years in each case. No order of cumulation appears in the record. Said Article reads as follows: “Section 1. (a) No person or parent of a child may intentionally maim, disfigure, or batter a child who is 14 years of age or younger or engage in conduct which by omission or commission is intended to cause physical injury to, or deformity or deficiency in, a child who is 14 years of age or younger. (b) Any person who violates Subsection (a) of this section is guilty of a felony and upon conviction is punishable by imprisonment in the State penitentiary for a period of not less than two years nor more than five years. (c) It shall be a defense to prosecution under this section if the act complained of was done in the exercise of the right of moderate restraint or correction given by law to the parent over the child, the guardian over the ward, the master over the apprentice, the teacher over the scholar.” Appellant’s first ground of error attacks the constitutionality of Article 1148a, supra, on the ground that it is vague because it is lacking in ascertainable standards so that a person of ordinary intelligence is not given fair notice that his contemplated conduct is forbidden. Specifically, appellant complains that the statute does not adequately define what constitutes “moderate restraint or correction.” The phrase in question “moderate restraint or correction” has been a part of the law of this State since sometime prior to 1882 (Snowden v. State, 12 Tex.App. 105), and our research has failed to reveal any prior attack upon the constitutionality of the same. In 44 Tex.Jur.2d, Sec. 17, p. 43, we find the following: “The law has not and obviously could not lay down any fixed measure of moderation in the correction of a child. Whether in any ■ particular case the correction was moderate or excessive must necessarily depend on the age, sex, condition, and disposition of the child, and on all the attending circumstances to be determined by the jury under proper instructions.” Cf. Stanfield v. State, 43 Tex. 167 (1875). We conclude that the statute is not unconstitutional for the reason assigned. By his ground of error number two, appellant seeks to complain of seven separate examples of improper conduct of the prosecutor. Recently in Kendrick v. State, 481 S.W.2d 877, we said: “These several alleged grounds of error are not ‘set forth separately’ as required by Article 40.09 § 9, V.A.C.C.P.; there is, therefore, not a proper ground of error for our consideration.” As in Kendrick, we have examined the conduct complained of, and conclude that if properly before us it would not constitute reversible error. Finding no reversible error, the judgments are affirmed. . We note that Article 1148a, supra, has been repealed and replaced by Article 22.04 of the new Penal Code, effective January 1,1974.

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Cecil Earl PIGG, Appellant, v. The STATE of Texas, Appellee. No. 48165. Court of Criminal Appeals of Texas. May 1, 1974. Benny J. Lowe, of Alexander, McDonald & Lowe, Odessa, for appellant. John Green, Dist. Atty., & Dennis Cad-ra, Asst. Dist. Atty., Odessa, and Jim D. Vollers, State’s Atty., Austin, for the State. OPINION JACKSON, Commissioner. Appellant was convicted on a plea of guilty of robbery by assault; punishment was assessed by the jury at twenty-eight (28) years. The case presents fundamental error which must be considered in the interest of justice. See Art. 40.09, § 13, Vernon’s Ann.C.C.P. The record reflects that upon learning of the appellant’s desire to plead guilty to the charge the court admonished the appellant in the following manner: “THE COURT: You understand if you plead guilty and persist in pleading guilty this jury upon proper evidence would have to find you guilty ? “MR. PIGG: Yes, Sir. “THE COURT: And then it would be up to the jury to assess your punishment at some term in the penitentiary not less than five or any term of years up to life or probation as the case may be, do you understand that? “MR. PIGG: Yes, sir. “THE COURT: And you are pleading guilty because you are guilty, is that correct? “MR. PIGG: Yes, Sir. “THE COURT: All right. Be seated. Call your first witness.” The above admonition in no way inquired as to fear, persuasion, or delusive hope of pardon prompting him to confess his guilt. Inquiry concerning these considerations is requisite for compliance with Art. 26.13, V.A.C.C.P. Harris v. State, Tex.Cr.App., S00 S.W.2d 126; McNeal v. State, Tex.Cr.App., 499 S.W.2d 173; Ex parte Harvey, Tex.Cr.App., 495 S.W.2d 229; Prudhomme v. State, Tex.Cr.App., 495 S.W.2d 941. For the error shown the judgment is reversed and the cause remanded. Opinion approved by the Court.

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Michael R. BURCH et ux., Appellants, v. CITY OF SAN ANTONIO et al., Appellees. No. 15164. Court of Civil Appeals of Texas, San Antonio. March 20, 1974. Rehearing Denied May 1, 1974. William H. Robison, Gray, Gardner & Robison, San Antonio, for appellants. Sawtelle, Goode, Davidson & Troilo, San Antonio, for appellees. ON MOTION FOR REHEARING CADENA, Justice. Appellees’ motion for rehearing is granted. The opinion previously filed herein is withdrawn and the following is substituted therefor: Plaintiffs, Michael R. Burch and wife, Vernell L. Burch, appeal from an order of a district court of Bexar County denying their application for a temporary injunction restraining further proceedings in connection with a condemnation case, pending in the County Civil Court at Law of Bexar County, in which defendant, City of San Antonio, acting through its Water Works Board of Trustees, seeks to obtain the fee simple title to land owned by plaintiffs. The special commissioners appointed after the statement in condemnation was filed held a hearing and made an award of $290,000.00. Plaintiffs filed their objections to the award and, after this award had been deposited in court, the Hon. T. Armour Ball, Judge of the County Civil Court at Law, ordered the issuance of a writ of possession. Plaintiffs then filed this suit in which they seek to enjoin the City of San Antonio and its agent, the Water Works Board of Trustees, from taking possession of the land and from proceeding further in the condemnation case. Plaintiffs also pray for an injunction restraining the Hon. T. Armour Ball from issuing any order or considering, hearing or determining any issue in connection with the eminent domain proceedings; and further seek to enjoin James W. Knight, County Clerk, from issuing, and Bill Hauck, Sheriff, from executing, any writ of possession or other process designed to deprive plaintiffs of their land. Plaintiffs assert that the condemnation proceedings are void because the City Council of the City of San Antonio has taken no official action determining the necessity for taking plaintiffs land for water system purposes or the necessity that the fee simple title to such land, as distinguished from a mere easement, be taken. In this opinion the City of San Antonio will sometimes be identified as “City,” while the Water Works Board of Trustees of the City of San Antonio will sometimes be identified as “Board.” All statutory references are to Vernon’s Tex.Rev.Civ. Stat.Ann. Article 1109 authorizes cities to own and operate water systems, and Section 3 of that statute empowers municipalities to acquire land for the extension, improvement or enlargement of such systems by condemnation. The statute further provides, in Section 5, that cities . . may acquire the fee simple title to any land or property when same is expressed in the resolution ordering said condemnation proceedings by the governing body.” Article 1109b empowers cities to “appropriate private property for public purposes,” including the operation of a water system, “. . . whenever the governing authorities shall deem it necessary. .” The power includes the “right of the governing authority, when so expressed, to take the fee in the lands so condemned.” It is clear that these statutes grant the power of eminent domain to cities, and not to subordinate municipal boards or officials. Further, the two statutes contemplate (1) a finding by the “governing authorities” that the taking of private property is necessary; (2) authorization of the institution of condemnation proceedings by “resolution” adopted by the “governing body”; and (3) where it is deemed necessary to acquire the fee, the expression of such necessity by the “governing body.” It is apparent that the terms “governing body” and “governing authorities,” as used in these statutes, are synonymous and refer to the body, commonly called the “city council,” in which rests the legislative powers which have been delegated to cities, and, since it is undisputed that the city council of the City of San Antonio has taken no formal action declaring the necessity for the taking of plaintiffs’ land, or authorizing the institution of condemnation proceedings in this case, or declaring the necessity for taking the fee simple title to plaintiffs’ land, as distinguished from an easement, it must be concluded that, looking only to the statutes, the condemnation proceedings in question were unauthorized. Stirman v. City of Tyler, 443 S.W.2d 354 (Tex.Civ.App.—Tyler 1969, writ ref’d n. r. e). Article I, § 3, Par. 4, of the City’s home rule charter contains a general grant of the power of eminent domain and declares that such power “. . . may be exercised in any manner authorized by the Constitution or laws of Texas, or as may be prescribed by ordinance.” (Emphasis added.) It cannot be persuasively argued that this charter provision has the effect of authorizing the institution of eminent domain proceedings by City without complying with the express restrictions on the exercise of such right found in Articles 1109 and 1109b. To construe the charter provision as vesting in the city council the power to nullify, by ordinance, the statutory requirements would be to bring the charter provision into patent conflict with statutory requirements, thus rendering the charter provision ineffective. Texas Const. Art. XI, § 5, Vernon's Ann. While it is undisputed that City’s legislative body has not made the determinations enumerated in Articles 1109 and 1109b, it is conclusively established the Board, by adoption of a formal resolution, has determined the necessity for taking plaintiffs’ land and the necessity for acquiring the fee to such land, and has authorized the institution of these proceedings. It is argued by City and Board that such action by Board satisfies the requirements of Articles 1109 and 1109b. The water works system was purchased by City with proceeds derived from the sale of revenue bonds, and, at that time, the management and control of the system was placed in the hands of a board of trustees. This procedure was authorized by Article 1109a, which it is necessary to examine in order to evaluate the contentions raised by City and Board. As enacted in 1925 (Acts 1925, 39th Leg., p. 154, ch. 33), it authorized certain cities, including the City of San Antonio, to issue revenue bonds for the purpose of acquiring, by purchase or otherwise, water works systems and additions to, or extensions and enlargements of, such systems and to mortgage and encumber such systems and the revenues thereof as security for payment of the bonds (Section 1). The governing body of the city was authorized, when issuing the bonds, to “. enter into such agreements and covenants with respect to the manner of payment of such bonds, . . . and the application of the revenues of the water system as it may deem fit, provided, however, that no such bond, . . . shall ever be a general obligation of such city, . . . .” (Section 2). Under Section 4 of Article 1109a, “The management and control of any such system or systems during the time same are encumbered, may by the terms of such encumbrance be placed in the hands of the city council of such city; but if deemed advisable may be placed in the hands of a board of trustees to be named in such encumbrance, consisting of not more than five (5) members, one of whom shall always be the mayor of such city; . . . ” This section further provides : “The terms of office of such board of trustees, their powers and duties, the manner of exercising same, the election of their successors, and all matter pertaining to their organization and duties may be specified in such contract of encumbrance; but in all matters where such contract is silent, the laws and rules governing the council of such city shall govern said board of trustees so far as applicable. Such city council or board of trustees having such management and control shall have power to make rules and regulations governing the furnishing of service to patrons and for the payment for same, and providing for discontinuance of such service to those failing to pay therefor when due until payment is made; and such city council shall have power to provide penalties for the violation of such rules and regulations and for the use of such service without the consent or knowledge of the authorities in charge thereof, and to provide penalties for all interference, trespassing or injury to any such systems, appliances or premises on which same may be located.” (Emphasis added.) On May 26, 1925, City purchased the water works system from its private owners through issuance of $7,000,000.00 of water revenue bonds, with the bonds being secured by a first mortgage deed of trust to St. Louis Union Trust Company. The deed of trust, among other things, vested possession, management and control of the water system in a board of trustees as long as the bonds remained outstanding and also created a first lien on the system’s revenues which were pledged to the payment of the bonds. In 1957, City issued $2,178,000.-00 in water revenue refunding bonds, and these new bonds were secured by a pledge of the system’s revenues. Ordinance No. 24819, which authorized the issuance of the refunding bonds, again placed management and control of the system in a board of trustees, the present Board, for so long as any bonds remained outstanding. Thereafter, from time to time, City has issued additional revenue bonds, all of which are subject to the provisions of Ordinance No. 24819. Paragraph 27 of such ordinance vested in Board “. . . absolute and complete authority and power with reference to the control, management and operation of the System and expenditure and application of the revenues of the system, . . .” and recited that “. . . in connection with the management and operation of the System and the expenditure and application of the revenues therefrom, the Board of Trustees shall be vested with all of the powers of the City with respect thereto, including all powers necessary or appropriate for the performance of all the covenants, undertakings and agreements of the City contained in this ordinance, . . . with the exception of fixing rates and charges for service rendered by the System, . and, to the extent authorized by law and by this Ordinance, shall have full authority with reference to making of extensions, improvements and additions to the System and the acquiring by purchase or condemnation of properties of every kind in connection therewith.” By adoption of Ordinance No. 24819, City clearly intended, “to the extent authorized by law,” to vest in Board “full authority” to make extensions and improvements to the system and, “in connection therewith,” to acquire by condemnation “properties of every kind.” Plaintiffs assert that the attempted delegation by the city council of the power of eminent domain was not “authorized by law,” and that, therefore, the attempted delegation of such power cannot be given effect. City and Board urge that Article 1109a, which authorizes cities to place the management and control of encumbered water systems in a board of trustees, and authorizes the city council to specify the powers of the trustees, authorizes the delegation by the city council of the power of eminent domain to Board, and that, therefore, the provisions of Ordinance No. 24819 investing the Board with such power are valid. We accept plaintiffs’ contention that a municipality to which the power of eminent domain has been delegated by the sovereign cannot, in the absence of statutory authorization, delegate such power to a subordinate municipal official, board or agency. 1 Nichols, Eminent Domain § 3.-211 (1973). Further, we assume, without deciding, that the provisions of Article 1109a, broad as they appear to be, do not authorize the city council to transfer legislative power, such as is the power of eminent domain. This assumption would compel the conclusion that the city council’s attempt, in 1957, to vest the power of eminent domain in Board was ineffective. However, in 1965, the legislature enacted what is now Article 1174a-8, which is a statute of the type generally referred to as a “validating” or “curative” act. That statute, in Section 3, provides: “All governmental proceedings of home rule cities, save and except those relating to annexation of territory, are hereby ratified and confirmed and all actions of the governing bodies of home rule cities ... in the authorization, issuance and delivery of bonds, are hereby ratified and confirmed and said obligations shall have effect according to their purport and tenor.” (Emphasis added.) Ordinance No. 24819 constitutes the authority for the issuance of the revenue bonds. As authorized by Article 1109a, Section 2, the ordinance not only authorizes the issuance of the bonds but provides for the creation of the board of trustees and contains certain covenants by the city. The provisions of this ordinance constitute a contractual obligation of City. San An-tomo Independent School District v. Water Works Board of Trustees, 120 S.W.2d 861 (Tex.Civ.App. — Beaumont 1938, writ ref’d). The obligation incurred by City in issuing the bonds included the obligation to operate the water works system in the manner specified in the ordinance which, wisely or not, made Board an almost autonomous body and divested the city council of nearly all control over the operation of the system. We conclude that Section 3 of Article 1174a-8 had the effect of validating the provisions of Ordinance 24819. It is well settled that a legislature has the power to validate any past action which the legislature might have authorized beforehand. City of Mason v. West Texas Utilities Co., ISO Tex. 18, 237 S.W.2d 273 (1951). The right of the legislature to authorize a municipal legislative body to delegate a portion of its legislative power to a subordinate official or agency cannot be doubted. The recognition of the existence of such power in the state legislature is implicit in the very statement of the doctrine which prohibits a municipal governing body from delegating its legislative power in the absence of statutory authorization. Because validating statutes serve the beneficient policy of sustaining the reliability of official actions and securing expectations formed in reliance thereon, they are in reason entitled to liberal construction in order to achieve full fruition of their remedial purposes. 2 Sutherland, Statutory Construction § 41.11, p. 290 (4th ed. 1973). This attitude toward such legislation received the blessing of our Supreme Court in City of Mason, where Justice Sharp said, “If a statute is curative or remedial in its nature, the rule is generally applied that it be given the most comprehensive and liberal construction possible.” 237 S. W.2d at 280. In view of this judicial attitude, it must be concluded that Section 3 of Article 1174a-8 had the effect of validating the provisions of Ordinance No. 24819. The judgment of the trial court is affirmed. . Article 1109a, Section 1, authorizes cities to “purchase or otherwise acquire additions to, or extensions or enlargements of any such water systems. . . .” Here, again, the power is granted to cities. We see no justification for construing this provision as dispensing with compliance with the requirements embodied in Articles 1109 and 1109b. . Luby v. City of Dallas, 396 S.W.2d 192 (Tex.Civ.App. — Dallas 1965, writ ref’d n. r. e.).

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Ola McDowell SIBERT et al., Appellants, v. Lanora McDowell DEVLIN et al., Appellees. No. 8209. Court of Civil Appeals of Texas, Texarkana. April 9, 1974. David J. Potter, Potter & Potter, Texar-kana, Ark., for appellants. Roland Matthews, Troup, for appellees. CORNELIUS, Justice. This is a suit in the nature of a bill of review seeking to set aside a partition judgment previously rendered by the District Court of Cass County, Texas. The trial court denied relief and the appellants have perfected this appeal. We have concluded that appellants were entitled to the relief sought and that the trial court’s judgment must therefore be reversed. James E. McDowell and Rosie Marshall McDowell were husband and wife. They acquired title to approximately 148 acres of land as their community property. They had five children, viz, James Ruel McDowell, Aubie McDowell Kitchings, Annie McDowell Wells, Lanora McDowell Devlin and Ola McDowell Sibert. James E. McDowell died intestate in 1918 and the five children acquired his one-half community interest in the 148 acres by the laws of descent and distribution. The property was not divided. Mrs. Rosie McDowell died in 1963. She left a holographic will which provided that each of the five children would receive 30 acres, with Annie’s share to have the “house and outbuildings” which were located on it, and Ola’s 30 acres designated as “the homestead”. J. Ruel McDowell and Aubie McDowell Kitchings were to have “One dollar” each in addition to their respective shares of thirty (30) acres. The “home place” or residence where the family lived had been substantially improved with individual funds of Ola Sibert and the other house had been improved by Annie Wells with her individual funds. Ola Sibert and Annie Wells made application to the County Court of Cass County to probate their mother’s will. It was admitted to probate and they were appointed independent executrices in cause No. 5147 on September 30, 1963. On November 4, 1963, Lanora McDowell Devlin and Aubie McDowell Kitchings filed a contest to the will. The contest was docketed in the Cass County Court, as cause No. 5165. In their petition, Lanora Devlin and Aubie Kitch-ings asserted that the five McDowell children owned an undivided one-half of the land as heirs of James E. McDowell by descent and distribution, and that the estate of Rosie McDowell owned the remaining undivided one-half. It then alleged that the “estates of James Elias McDowell and Rosie Marshall McDowell, both deceased, should be partitioned” among the five children, stating that such persons were all the heirs of James Elias McDowell and Rosie Marshall McDowell and that they were all parties to the suit. On November 18, 1963, Ola Sibert, J. Ruel McDowell and Annie Wells filed their answer to said petition and stated therein that with regard to the petition’s request for a partition, “ . . . they agree that the said land should be divided, and are willing to do so, according to the Will of Mrs. Rosie Marshall McDowell, and the equities hereinafter mentioned. These defendants would show the Court that said land can be divided, because the defendant Ruel (James Ruel) McDowell is willing to take his one-fifth (i/£th) interest anywhere and preferable off the North end of said place. That the defendants Annie McDowell Wells has made permanant and lasting improvements on what would be the middle one-fifth if the same were divided by running the dividing line through the place East to West, and that the defendant Ola McDowell Sibert has paid a large part of the cost of constructing the house that would fall on the next one-fifth South thereof, and in addition thereto furnished large amounts of money for her mother during her illness, as well as a large part of her support during her health, and is entitled to one-half interest in the ‘Home Place’ by the Will of Mrs. Rosie Marshall McDowell, and is equitably entitled to the other one-half interest therein by reason of the expenses that she had paid thereon. * * On December 3, 1963, the County Court of Cass County rendered judgment in cause No. 5165, denying the will contest, confirming the validity and the probate of Rosie McDowell’s will, and decreeing as follows: “The Court further finds that the Defendants Annie McDowell Wells, and husband, Oswell Wells, have practically built the home which they occupy on said land, having started with a small ancient house that was of very little value, and are entitled to have their share of the land set apart so as to include the house they have improved. “The Court further finds that Ola McDowell Sibert is living in a house that was built on the site of the former home of the said James Elias McDowell and Rosie Marshall McDowell, which was razed in the year 1950 and the present house built immediately thereafter, construction having been started in June 1950 and completed in August, 1950, and that it was built primarily from the sale of a crop of timber grown on the land following the death of James Elias McDowell, and additional money furnished primarily by Defendant Ola McDowell Sibert, and that the said Ola McDowell Sibert, according to her mother’s will, is entitled to have her part of the land set apart so as to include the tract where the said house built in 1950 is now situated, the will of the said Rosie Marshall McDowell providing as it does that she should have the homestead, which the Court finds to mean that part of the land on which the house now occupied by the said Ola McDowell is situated, being the house built in the year 1950. “IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Defendants Annie McDowell Wells and her husband, Oswell Wells, have for their share that part of the land set apart to them so as to include the house which they have improved. “IT IS FURTHER ORDERED, ADJUDGED and DECREED that the Defendant Ola McDowell Sibert have her part of the land set apart so as to include the house she now occupies which was built from the ground up during the year 1950. “IT IS FURTHER ORDERED, ADJUDGED and DECREED that Commissioners in partition be appointed to make a fair and equitable division of the land, dividing it into five (5) equal parts, irrespective of the two (2) houses to which reference has heretofore been made. * * *” Lanora Devlin and Aubie Kitchings gave notice of appeal from the judgment ordering partition but did not perfect the appeal. On January 29, 1964, the commissioners appointed by the December 3, 1963 judgment made their report wherein they divided the land into five blocks of approximately 31 acres, each having a value of $2,000.00 “exclusive of improvements”. In obedience to the judgment of December 3, 1963, the commissioners awarded parcels to Annie Wells and Ola Sibert on which were located the improvements devised by the will to them respectively. Objections to the report were made by Lanora Devlin and Aubie Kitchings. On February 5, 1964, the objections were overruled and the report of the commissioners was confirmed. Lanora Devlin and Aubie Kitch-ings perfected an appeal from this order to the District Court of Cass County. The appeal was docketed as No. 18,062 in the district court. Apparently while the appeal (18,062) was still pending, Lanora Devlin and Aubie Kitchings filed a new suit in the District Court of Cass County seeking to partition the 148-acre tract. The petition stated that the county court had entered an order of partition which had been appealed to the district court, but alleged that the county court had no jurisdiction over the undivided one-half inherited by said parties from James E. McDowell and that therefore its judgment was void and the district court should partition all of the land. Ola Sibert, J. Ruel McDowell and Annie Wells answered in cause No. 18,289, asserting that any partition “should be made in such a way as to protect said parties as to the improvements made by them.” On September 8, 1965, judgment was entered in cause No. 18,289, which was the district court partition suit, ordering a new partition and appointing appraisers to effect it. The Commissioners reported on July 25, 1968, having divided the land into unequal portions having the same value when considered with the value of the improvements; that is, instead of awarding 30 acres and the improvements located thereon to Ola Sibert, she received 5 acres and the improvements; Annie Wells received 26 acres and the improvements, and the other three children received 38.2818 acres each. The report was confirmed by the district court on August 26, 1968. Allegedly because of the absence and hospitalization of their attorney and a resulting mistake or accident, Ola Sibert, Annie Wells and J. Ruel McDowell failed to perfect an appeal from the judgment in cause No. 18,289. Consequently, they then filed this suit, in the nature of a bill of review, attacking the district court judgment in 18,289 on the ground, among others, that the district court had no jurisdiction to render it. The trial court denied the bill of review. As to the appeal from the order of the probate court, docketed in the district court as No. 18,062, no disposition is shown except the court’s docket sheet which contains an entry dated April 8, 1965, five months after cause No. 18,289 was filed, stating that the county court judgment of partition was vacated, “per judgment on file”. There is no judgment on file, unless it be considered that cause No. 18,062 was merged into cause No. 18,289. The judgment of the district court in cause No. 18,289 was clearly erroneous. It was contrary to Mrs. McDowell’s will, in that the devisees were awarded shares which were different from those specified in the will. Nevertheless, if that judgment was merely erroneous, it cannot now be set aside unless the aggrieved parties bring themselves within the well recognized requirements for equitable bills of review. Garza v. King, 233 S.W.2d 884 (Tex.Civ. App. San Antonio 1950, error ref’d); Smith v. Ferrell, 44 S.W.2d 962 (Tex. Comm.App. 1932, opin. apprvd) ; 34 T. J. 2d p. 92, et seq. On the other hand, if the district court was without the jurisdictional power to render the judgment in cause No. 18,289, that judgment was and is void and it may be set aside in a suit such as this one by merely showing it to be void. McEwen v. Harrison, 162 Tex. 125, 345 S. W.2d 706 (1961); Consolidated Underwriters v. McCauley, 320 S.W.2d 60 (Tex.Civ. App. Beaumont 1959, wr. ref’d, n.r.e.); certiorari denied 361 U.S. 14, 80 S.Ct. 109, 4 L.Ed.2d 52; Barnett v. Eureka Paving Co., 234 S.W. 1081 (Tex.Comm.App.1921, opin. apprvd) ; 34 Tex.Jur.2d p. 94. Appellees contend, and apparently the court below assumed, that the county court had jurisdiction of only Mrs. Rosie McDowell’s community one-half of the property and therefore its partition affected only that undivided one-half interest. Proceeding from that premise, it is urged that the district court therefore had jurisdiction under its general powers to entertain an action (No. 18,289) to partition the remaining undivided one-half interest in the land which the parties had previously inherited from their father. Appellees thus contend that the district court had appellate jurisdiction of the partition of Mrs. McDowell’s undivided one-half interest in the land and original jurisdiction of the partition of Mr. James E. McDowell’s undivided one-half interest, and that the court could and did, in effect, consolidate the two cases and render one judgment disposing of the entire matter. We cannot accept this contention for the several reasons hereafter discussed. The county court not only has jurisdiction to partition the property belonging to an estate being administered but it also has jurisdiction to effect a partition between the estate and persons who have a joint interest with the estate in any property. Sec. 386 of the Probate Code provides that “Any person having a joint interest with the estate of a decedent in any property, real or personal, may make application to the court from which letters testamentary . . . have been granted thereon to have a partition thereof, whereupon the court shall make a partition of said property between the applicant and the estate of the deceased; * * *”. As shown in the recitation of the facts of this case, the appellees, in applying to the county court for a partition in cause No. 5165, specifically pointed out that they and appellants owned an undivided one-half interest in the land by inheritance from their father who had died many years previously, and that their mother’s estate then being administered owned the other undivided one-half interest in the land, and requested that the "estates” of both their fa ther and their mother be partitioned. Likewise, the appellants, in answering the plea in the county court for partition of both estates, referred to appellees’ pleading in that respect and stated that they also desired that “said land should be divided” and proceeded to suggest specific segregated parcels of the entire land which should be awarded to the respective parties. Thus, all parties in both their capacities as “joint owners with the estate” and as persons interested in the estate, made written application to the county court to partition their respective interests in the land. The county court consequently had jurisdiction over all interests in the tract, and its decree divided the entire tract. If there were irregularities in the technical aspects or in the timing of the order of partition, they were waived by the parties through their respective pleadings. Although Mrs. McDowell’s will was effective only as to her community one-half interest, the county court had jurisdiction also over the other undivided one-half interest, and if there was any maladjustment in its decree, that would have been merely an error which ordinarily could only be revised or corrected by appeal. Having determined that the judgment of partition by the county court in cause No. 5165 was a valid judgment rendered by a court having jurisdiction, we now pass to a consideration of the question of whether the District Court of Cass County, either in cause No. 18,062 (the appeal) or in cause No. 18,289 (the new suit), had the jurisdictional power to set that judgment aside or to retry the issues determined therein. Although it is frequently called an “interlocutory decree”, the order of the court decreeing a partition is a final, appeal-able order. Waters-Pierce Oil Co. v. State, 107 Tex. 1, 106 S.W. 326; Castillo v. Farias, 64 S.W.2d 989 (Tex.Civ.App. San Antonio 1933, err. ref’d.) ; 44 Tex.Jur. 2d p. 308. If no appeal is perfected from that order, the matters decreed therein, such as the share or interest of each claimant and the directions for the division of the land, are concluded and cannot be reviewed in an appeal from a later order in the same proceeding, such as an order of the court confirming the report of the commissioners. Marmion v. Wells, 246 S. W.2d 704 (Tex.Civ.App. San Antonio 1952, er. ref’d.) ; Castillo v. Farias, supra. Cyphers v. Birdwell, 32 S.W.2d 937 (Tex. Civ.App. Texarkana 1930, er. ref’d) ; Waters-Pierce Oil Co. v. State, supra. The county court decree of December 3, 1963 which ordered the partition, also determined the respective proportionate shares of the property to which each common owner was entitled, and in accordance with the will, it provided that the shares would be equal in acreage, but the shares of Ola McDowell Sibert and Annie McDowell Wells would include the improvements. Only the physical act of locating and setting apart these respective proportionate shares awarded by the decree of partition was left for the commissioners to perform and report. As previously stated, no appeal was perfected from the December 3, 1963, judgment of partition. The appeal was perfected from the order confirming the commissioners report, and that appeal was docketed in the district court as cause No. 18,062. Being merely an appeal from the order confirming the commissioners’ report, the district court only had appellate jurisdiction to set aside the county court’s order confirming that report and conduct a trial de novo on the issues touching the approval of that report. It had no jurisdiction to revise or retry the matters decreed in the December 3, 1963, order of partition. Marmion v. Wells,-supra; Castillo v. Far-ias, supra; Cyphers v. Birdwell, supra. Even aside from these well settled principles pertaining to partition, the district court in cause No. 18,062 would have had no jurisdiction under its general appellate jurisdiction in probate matters to consider any issue other than the commissioners’ report and its approval or rejection. In an appeal from the probate court to the district court, even though the proceedings in the district court are to be de novo, the issues are restricted to those involved in the order or ruling appealed from, and the district court has no jurisdiction to enlarge the scope of the review. Brewer v. Brewer, 237 S.W.2d 369 (Tex.Civ.App. Dallas 1951, no writ); Levy v. W. L. Moody & Co., 87 S.W. 205 (Tex.Civ.App.1905, er. ref’d); 18 T.J.2d pp. 102, 103. The order of the county court confirming the commissioners’ report was an appealable order, but an appeal therefrom did not give the district court jurisdiction to consider issues other than those touching its approval of the report. It follows then, that neither under the general law of probate nor under the rules applicable to partition generally, did the district court have the power to repartition the land and change the proportionate shares ordered by the county court’s final judgment of partition, under the guise of reviewing that court’s action in confirming the commissioners’ report, even if it be considered that the appeal (18,062) was re-docketed as cause No. 18,289. The action of such court in attempting to do so was not merely erroneous, but was action beyond its jurisdictional power and void. Levy v. W. L. Moody & Company, supra; Brewer v. Brewer, supra; McEwen v. Harrison, supra. We must next determine if the district court had the jurisdictional power to render the judgment in cause No. 18,289 if it be considered a new suit. Since the county court judgment of partition in cause No. 5165 was a final judgment rendered by a court having jurisdiction, and the estate proceedings were still open in that court, the district court was without jurisdiction to entertain an action to partition the land. Kelley v. Harsch, 161 S.W. 2d 563 (Tex.Civ.App. Austin 1942, no writ); Buchner v. Wait, 137 S.W. 383 (Tex.Civ.App. Galveston 1911, er. ref’d); O’Neil v. Norton, 29 S.W.2d 1060 (Tex. Comm.App. 1930, opin. apprvd); Elliott v. Elliott, 213 S.W.2d 459 (Tex.Civ.App. Fort Worth 1948, no writ). As it had no juristion of the partition suit, there was nothing to consolidate with the appeal. Buchner v. Wait, supra. It is true that both appellants and appellees apparently consented by their pleadings to the district court’s consideration of the question of partition in cause No. 18,289, but the jurisdictional power to act cannot be conferred by consent of the parties. Pierce v. Foreign Mission Board, 235 S.W. 552 (Tex.Comm.App.1921, opin. apprvd). The judgment in cause No. 18,289 then, if considered a new suit, was beyond the jurisdictional power of the court, and was void. O’Neil v. Norton, supra; Pierce v. Foreign Mission Board, supra; Barnett v. Eureka Paving Company, supra; Dallas Joint Stock Land Bank v. Forsyth, 130 Tex. 563, 109 S.W.2d 1046 (Tex.Comm.App. 1937, opin. apprvd); Consolidated Underwriters v. McCauley, supra ; Kelley v. Harsch, supra. As the district court’s action in altering the partition and allocating the shares contrary to the county court’s judgment and the provisions of the will, was void whether done in the appeal (18,062) or the new suit (18,289), it was of no effect and should have been set aside by the trial court in this action when its void nature was shown. The appellants could have appealed from the judgment in 18,289, but their failure to do so cannot destroy their right to have it set aside upon a showing of its void nature. Cunningham v. Taylor, 20 Tex. 126; McEwen v. Harrison, supra. For the reasons stated, the judgment of the trial court is reversed and judgment is here rendered setting aside the judgment of the District Court of Cass County, Texas in cause No. 18,289. The effect of our judgment will leave cause No. 18,062 (the appeal) remaining for consideration of the district court in a trial de novo touching only the action of the county court in approving the commissioners’ report in its cause No. 5165. Appellants’ other points are not reached. Reversed and rendered. RAY, J., not participating. . It was disputed as to whether the answer filed for J. Ruel McDowell was authorized. . There was no order or agreement of consolidation entered. . Sec. 373 et seq., V.A.T.S. Probate Code. . See. 5 of the Probate Code has been amended to provide for concurrent jurisdiction of the county and district courts in certain cases, consistent with the amendment of Art. 5, Sec. 8 of the Constitution. The acts involved here occurred prior to the enactment of the amendment and would not be affected thereby. Atkins v. Rayburn (Tex.Sup.1974), 506 S.W.2d 208. . Kelley v. Barnhill, 144 Tex. 14, 188 S.W.2d 385; Krueger v. Williams, 163 Tex. 545, 359 S.W.2d 48.

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Harley H. WILLIAMS et al., Appellants, v. POWELL ELECTRICAL MANUFACTURING COMPANY, INC., et al., Appellees. No. 974. Court of Civil Appeals of Texas, Houston (14th Dist.). April 10, 1974. Max H. Jennings, Clawson & Jennings, Houston, for appellants. William M. Schultz, Schultz & de Ybar-rondo, Houston, for appellee. COULSON, Justice. This is an appeal from a temporary injunction. Powell Electrical Manufacturing Company, Inc., (Powell) and Powell-Magnetic Industries, Inc., (Powell-Magnetic), appel-lees, obtained a temporary injunction against appellants Harley H. Williams and Charles Bundick pending a trial on the merits of a permanent injunction. The temporary injunction restrains appellants from engaging in any business similar to and competitive with that of appellees for a period of five years in the continental United States. The first question here is whether a subsidiary corporation can enforce, without an assignment, part of a covenant not to compete which was obtained by its parent corporation ancillary to the purchase of a business. The second question is whether a temporary injunction restraining competition in the continental United States is too broad. Appellants originally owned and operated Magnetic Industries, Inc., (Magnetic) which manufactured, sold, and installed the “C-2 System.” This system is for the remote control of valves, pumps, and motors by circuits of simple electrical relays (no patents are involved). Magnetic sold the system primarily to the petrochemical industry. On February 23, 1968, Powell incorporated Powell-Magnetic. Five days later, Powell entered into an agreement with appellants to purchase Magnetic for $180,000, and Powell-Magnetic was not a party to the contract. Powell had not been in the C-2 system business previously. The day after the contract of sale was executed, appellants signed employment contracts with Powell (again without Powell-Magnetic) to work for it for five years at salary. The employment contracts contained a covenant not to compete in the same or similar business in the United States for five years after termination of employment. Appellants worked for Powell for five years, until December 3, 1973. During this employment, Powell dissolved Magnetic and transferred its operations for the manufacture of the C-2 system to Powell-Magnetic. Powell itself sold the systems which Powell-Magnetic produced. More than two months before appellants ended their employment with Powell, they obtained a new corporate charter for “Magnetic Industries, Inc.,” rented a shop, purchased components of the C-2 system, and prepared to compete with Powell. At the hearing on the temporary injunction, appellees called appellant Williams as an adverse witness, and he testified that he had sold the C-2 system for Powell “all over the country” during his employment there. Williams asserted that most of his personal sales were in the Houston area to large oil companies. He acknowledged that at least three of Powell’s manufacturer’s representatives (from Illinois, Louisiana, and New Jersey) had already called him to discuss dealing with him rather than Powell. Williams identified a C-2 system customer list which he had helped to prepare. This exhibit listed refineries, pipeline companies, chemical companies, utilities, and others throughout the United States as customers (as well as companies in many oil-producing foreign countries). All parties stipulated that Powell could have provided testimony that appellants’ employment contracts were an integral entire transaction whereby Powell purchased Magnetic in 1968. The standard for review of a temporary injunction is commonly stated to be whether a plaintiff has established a probable right and a probable harm. In Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549 (1953), then Justice Calvert outlined the test for abuse of discretion when a temporary injunction has been granted; the injunction must be affirmed if a cause of action has been alleged in the petition and the evidence at the hearing “tends to sustain it.” Appellants’ first argument is that Powell has no right under the restrictive covenant to an injunction prohibiting appellants from manufacturing the C-2 system. The covenant prohibits appellants from engaging in any business similar to and competitive with that of Powell, but Powell has never manufactured the system. Powell has sold the system which Powell-Magnetic has manufactured. While there is no Texas authority directly in point on this question, there is ample precedent from which to reason. Texas courts have long upheld contracts in reasonable restraint of trade when they are made ancillary to another contract. Justin Belt Company, Inc. v. Yost, 502 S.W.2d 681 (Tex.Sup.1973). A covenant not to compete, ancillary to the sale of a business, is upheld as a necessity to secure the goodwill which the buyer purchases. If the buyer of the business resells the business, then the second buyer can enforce the covenant not to compete when he has obtained an express assignment of the covenant. Williams v. Loicano, 390 S.W.2d 56 (Tex. Civ.App.-Fort Worth 1965, writ ref’d n.r. e.). A covenant not to compete, ancillary to an employment contract, may be assigned if the contract rights of the employer are assignable by the terms of the contract. Texas Shop Towel v. Haire, 246 S. W.2d 482 (Tex.Civ.App.-San Antonio 1952, no writ). In Thames v. Rotary Engineering Company, 315 S.W.2d 589 (Tex. Civ.App.-El Paso 1958, writ ref’d n. r. e.), covenants not to compete were contained in an employment contract with a partnership as employer. Through the years, as partners withdrew or died, new partnership agreements were drawn, until finally a trustee conveyed the assets to a corporation which consisted of the remaining partners. The court held that the covenants were, “in effect,” transferred and assigned to each succeeding partnership and that the corporation could enforce the covenants because of the transfer of assets. The court felt that a “personnel change” on the part of the employer should not deprive it of the bargain it had reached concerning competition. In the instant case, the employment contracts were assignable by their own terms, but no express assignment of the covenants was made by Powell to Powell-Magnetic. However, Powell-Magnetic is a wholly-owned subsidiary of Powell. To require an assignment to a subsidiary would be to compel a formalistic, empty act. We hold that a subsidiary corporation may enforce part of a covenant not to compete, ancillary to the sale of a business purchased by its parent corporation, without an express assignment of the covenant. Appellants’ second argument is that the trial judge abused his discretion in entering a nationwide injunction. Harris County is asserted by appellants to be a reasonable area under the facts in evidence. Under the rule of Weatherford Oil Tool Company v. Campbell, 161 Tex. 310, 340 S.W.2d 950 (1960), a court of equity has the duty to trim back an unreasonably large area in a covenant not to compete to an area which is reasonable, rather than to declare the covenant void. When a business is sold, a reasonable area is that which is no larger than necessary to protect the business sold. Barrett v. Curtis, 407 S.W.2d 359 (Tex.Civ.App.-Dallas 1966, no writ). An injunction encompassing the entire state has been upheld as reasonable. Caraway v. Flagg, 277 S.W.2d 803 (Tex. Civ.App.-Dallas 1955, writ ref’d n. r. e.). However, there is no Texas authority for the proposition that a nationwide covenant not to compete is reasonable. In the Justin Belt case, supra 502 S.W.2d at 685, the Supreme Court affirmed a permanent injunction restraining competition for seven years in all of the continental United States west of the Mississippi River, but specifically stated that the petitioners made no attack upon the time and area limitations imposed by the trial judge. Appellants urge that Texas courts originally declared void any covenant not to compete which did not contain an area limitation and, therefore, a covenant encompassing the entire nation must necessarily be unreasonable, because it is effectually just as broad and indefinite as no area limitation. We would agree if appellees had not demonstrated that the business sold was national in character. National injunctions enforcing a covenant not to compete ancillary to the sale of a national business have been upheld, in other jurisdictions. E. g., Alabama Binder & Chem. v. Pennsylvania Indus. Chem., 410 Pa. 214, 189 A.2d 180 (1963) ; General Bronze Corporation v. Schmeling, 208 Wis. 565, 243 N.W. 469 (1932); Voices v. Metal Tone Mfg. Co., 119 N.J.Eq. 324, 182 A. 880 (1936) aff’d, 120 N.J.Eq. 618, 187 A. 370, cert, denied, 300 U.S. 656, 57 S.Ct. 433, 81 L.Ed. 866. A national injunction pursuant to an employment contract has also been affirmed. Harwell Enterprises, Inc. v. Heim, 276 N.C. 475, 173 S.E.2d 316 (1970). We hold that the court below did not abuse its discretion in granting a national temporary injunction; a national injunction is reasonable, since it is necessary to protect the national business sold from competition. In an era of national and international corporations, a modern court of equity cannot feel constrained by past precedents involving the sale of barber shops and livery stables. This Court would be far less inclined to affirm a national restrictive covenant ancillary to an employment contract rather than to the sale of a business; Powell and appellants enjoyed a relative equality of bargaining position upon the sale of Magnetic, whereas an employee often must accept his employment contract in toto as a condition of his employment. It should also be noted that the instant case is not a situation in which a corporation has purchased another corporation in the same business in an effort to reduce competition. Powell is attempting to protect the company and the goodwill which Powell purchased, and thereby incidentally forestall additional competition in a field new to Powell. Affirmed.

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NEW TRENDS, INC., Appellant, v. STAFFORD-LOWDON COMPANY, Appellee. No. 17491. Court of Civil Appeals of Texas, Fort Worth. March 29, 1974. Rehearing Denied May 3, 1974. Lyne, Klein, French & Womble, and Ron Edmondson, Dallas, for appellant. Wynn, Irby, Brown, McConnico & Mack, and Henry C. Meyer, Fort Worth, for appellee. OPINION MASSEY, Chief Justice. Venue case. Stafford-Lowdon Company, plaintiff, brought suit against New Trends, Inc., defendant, on sworn account. By issues joined on defendant's plea of privilege the question to be resolved was propriety of venue in the county of suit by Vernon’s Ann.Texas Civ.St. Art. 1995, “Venue”, Subdivision 5, “Contract in writing”. Judgment was for plaintiff, retaining venue in the county of suit. The defendant appealed. Affirmed. The disputed transactions constituted three separate sales of merchandise made by plaintiff to defendant and for which plaintiff sought payment. In other words the suit was, by and between the same parties, for the enforcement of three separate contracts allegedly made. Plaintiff had made performance of its acknowledged obligations under the several contracts ; and its claim is that defendant be obliged to make return-performance by payment. We do not now determine liability and the extent thereof, as upon a trial upon the merits, but whether the circumstances are such that the plaintiff may be said to have shown its entitlement to try the case on its merits in the county of the suit. If the trial court was entitled to find that the defendant is obliged by writing evidencing its contractual obligation to perform any of the three contracts by payment to plaintiff in the county where suit was brought its decision should not be disturbed. The requirement by V.A.T.S.1995, Subdivision 5, is that defendant be obligated by express provision in writing to perform in the county of suit the obligation sued upon. In order to simplify we will refer to plaintiff’s Exhibit # 5, orally identified as an office copy of the plaintiff’s written proposal or offer to contract to deliver to the defendant 40,000 24-page catalogues for $102.00 “per M”, or a total of $4,080.-00. This had relation to one of the three contracts. Neither the fact of existence of a contract nor the terms and provisions thereof were proved by Exhibit # 5, itself, but it — coupled with supplemental testimony from plaintiff’s salesman — did amount to sufficient evidence to prove it and its terms and provisions. In other words the plaintiff supplied the requisite proof by pa-rol evidence. There is no question but that additional undisputed evidence showed that plaintiff did provide 40,000 catalogues to the defendant upon the defendant’s acceptance of the proposal, but that defendant has not paid plaintiff the $4,080.00. Proof of the terms and conditions of the contract by parol, i. e. the testimony of the witness thereupon and Exhibit # 5, was subject to the objection that it was not the “best evidence” thereof. However there was not an objection on that ground. Theretofore, as applied to similar proof upon the other contracts such an objection had been made. The same was not true of plaintiff’s Exhibit # 5 and supplementary parol testimony. Therefore plaintiff’s proof was sufficient. The right to demand the best evidence obtainable of the facts in issue is waived if a party allows secondary evidence of such facts to be admitted without objection (on that ground), and we deem such waiver to have occurred. 23 Tex.Jur.2d p. 324, “Evidence”, § 211, “Waiver of right to best evidence”; Aetna Insurance Company v. Klein, 160 Tex. 61, 325 S.W.2d 376, 381 (1959). The contractual provision upon which proper decision in the case might be made was proved by secondary evidence. Such showed that defendant, both by acceptance of the plaintiff’s offer to perform and by acceptance of plaintiff’s performance, had agreed to pay, as its return performance (pursuant to language which plaintiff’s witness testified to have been set forth in writing by the original offer to contract), as follows: “Terms: Cash at seller’s home office, net ten days E. O. M. (end of month) or 30 days net.” The absence of proof in the record of any signature upon the written offer to contract by anyone connected with the plaintiff we deem immaterial, for there is nothing in the venue statute that requires either party to sign any instrument. Contractual assent may be proved by means other than by signature. Knapp Corporation v. Lofland Company, 466 S. W.2d 847 (Dallas Civ.App., 1971, no writ hist.). What is material is the answer to the question: “Is there a writing evidencing the obligation to which the defendant has contractually agreed to be bound?” That the writing have appended a signature is not essential to plaintiff’s discharge of his burden of proof. For example, modern-day commercial practices involve offers and acceptances by telegram, in consequence of which oral contracts are considered to have been reduced to writing evidencing the parties’ agreement. Indeed, where the offer (even by telegram) is orally accepted (as by the phone) a contract in writing is to be deemed existent, with its (written) terms the language in the telegram. Under circumstances of the instant case the defendant is to be deemed as having itself contracted in writing that the return-performance on its part (necessarily agreed upon by defendant’s acceptance of the performance by plaintiff of the written offer) is by written obligation. It is the. reduction of the agreement to written or printed form and the agreement to the terms as so reduced which is “of the essence” to the application of provisions of Subdivision 5. On the development of and existent state of the law see 1 McDonald, Texas Civil Practice, 1965 Revised Volume, p. 447, et seq., “Venue”, § 4.11.3, “— (II) Suit Upon Written Contract”, and § 4.-11.4, “ — (III) Contract Binding Upon Defendant”. The implied fact findings and legal rul-, ing of the trial court holding venue to be properly laid under Subdivision 5 has support by what is hereinabove written. We make reference to the other transactions which were sued upon by plaintiff. These involved like sales of like merchandise. In these, or at least as applied to one, it would appear that the court erred in admitting parol testimony relative to the terms and provisions of contract over the objection that such evidence could be received only in violation of the “best evidence rule”. Of course the contracts themselves would be the best evidence thereof and to determine defendant’s obligation in writing. In other words, it appears that in view of the objection the obligation of neither of such contracts was properly proved by plaintiff’s parol showing relative thereto. No proper predicate had been laid for proof of the terms and provisions by secondary evidence, as by demand for defendant to produce the original contract or offer. There was error by permitting proof by secondary evidence which should, as to these transactions, perforce the objection, have been excluded. 2 Jones on Evidence, Sixth Edition, p. 101, “Best and Secondary Evidence”, § 7:6, “Admissibility of Secondary Evidence Generally”, and (p. 127) § 7:19, “Adversary in Possession of Writing; Notice to Produce”. IV Wigmore on Evidence, Third Edition, p. 357, “Detention by Opponent”, § 1199, “Detention by Opponent; in General”; Aetna Insurance Company v. Klein, 160 Tex. 61, 325 S.W.2d 376, 381 (1959). However, the want of proper trial because of the error in the admission of secondary evidence to prove essential material on these transactions does not make the decision of the trial court erroneous. The same error did not exist as applied to proof of the third transaction for as to that the same objection was not made. Without question plaintiff’s suit on the third transaction was properly joined with the others. Where two or more causes of action are properly joined, and the claims litigated are between the same parties (as is the situation in the instant case) if there be venue as to one cause of action, venue would likewise exist to the other (s). Basis of such rule is Texas public policy to avoid a multiplicity of suits. 59 Tex.Jur.2d, p. 542, “Venue”, § 116 “(Joinder of Actions; .) — In general; Rule of permissive joinder”. Hence venue, being properly laid to a part of plaintiff’s suit, is properly retained in the county of suit as to plaintiff’s entire case. Judgment is affirmed.

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Vicente NERIO et al., Appellants, v. Hilario G. TIJERINA et al., Appellees. No. 844. Court of Civil Appeals of Texas, Corpus Christi. April 25, 1974. Rehearing Denied May 9, 1974. Jack K. Dahlberg, Jr., Corpus Christi, for appellants. S. E. Dyer, Corpus Christi, for appellees. OPINION NYE, Chief Justice. This is a venue case. Vicente Nerio, Luciana Nerio, John Nerio, and Marciella Flores, plaintiffs filed suit in the District Court of Nueces County, Texas, against Hilario G. Tijerina and Kings Transportation Company, defendants, to recover for alleged damages arising out of an automobile-truck collision. The defendants filed their plea of privilege to be sued in Hidal-go County where they resided. The plaintiffs sought to maintain venue in Nueces County, under the provisions of Subdivision 9a, Article 1995, Vernon’s Ann.Civ.St. Upon a prior hearing of the defendants’ plea of privilege, the trial court overruled both pleas, from which order the defendants perfected their appeal to this Court. This Court reversed the order of the trial court overruling the plea of privilege and remanded the cause for further development of the facts. Tijerina v. Nerio, 497 S.W.2d 72 (Tex.Civ.App. — Corpus Christi 1973). Upon the second hearing of such plea of privilege the trial court granted both pleas of privilege whereupon the plaintiffs appealed from this second order sustaining the pleas of privilege. The plaintiffs sought to hold venue in Nueces County under the provisions of Subdivision 9a of Article 1995, V.A.C.S. alleging that the defendants committed acts of negligence that were a proximate cause of the collision in question. In January of 1972 a truck owned by defendant Kings Transportation Company and driven by defendant Tijerina collided with an automobile driven by plaintiff John Nerio. The other plaintiffs were passengers in the Nerio automobile. The collision occurred at an intersection of U. S. Highway 77 and the business route of such highway into Bishop, Texas in Nueces County. The main travelled portion of Highway 77 is a four-lane divided highway with a grass median separating the two southbound lanes from the two northbound lanes. A stop sign requires the traffic moving east on the business route to stop at the intersection with the southbound lanes of Highway 77. The defendant Tijerina was driving his truck south in the outside west lane of Highway 77. The plaintiffs were travelling north out of Bishop to the point where the business highway crosses Highway 77 in a east-west direction. In order for the plaintiffs to continue north on Highway 77, it was necessary for them to cross through the southbound lanes over to the east portion of Highway 77 to the northbound lanes. Plaintiff Nerio stopped at the stop sign facing Highway 77. While he was stopped, he noticed the defendant’s truck which was travelling south in the west lane of U. S. Highway 77. He estimated that the truck was about 400 feet away. The driver John Nerio started up, entered the intersection, crossed both lanes of U. S. Highway 77 to a point a few feet east of the south bound portion of the highway, where he was struck by the braking and jackknifing truck driven by the defendant Tijerina. Nerio stated that while he was crossing the highway, he took his eyes off the truck and didn’t see it again until he had finished crossing the southbound portion of the highway. The truck was about 75 feet from his vehicle at that time. He offered no other testimony with reference to the accident. The plaintiffs called as their witness an accident reconstruction expert who testified as to the relative direction, speed and stopping distances of the vehicles involved in the collision. His testimony was based on an on-the-scene examination of the skid marks, certain physical evidence, photographs, data concerning the truck (supplied by the defendants) and charts from the Texas Highway Department. The witness then prepared a plat which was introduced into evidence. The basis of his calculations were reconstructed from the point of impact backwards. The expert witness’ testimony may be summarized as follows: the defendant truckdriver was travelling at a speed of 60.7 miles per hour prior to the time that the plaintiff Nerio entered into the highway. At the point where the truckdriver applied his brakes, he was 96 feet and lyá seconds from the point of impact. Using the reconstruction expert’s testimony, that the plaintiff’s vehicle was accelerating at the rate of approximately 6 feet per second, plaintiff’s vehicle was 32.85 feet from the collision point when the defendant truckdriver applied his brakes. This would place plaintiff’s vehicle in the west side of the south bound portion of the highway about 2½ feet across the center stripe. The plaintiff would back up both vehicles to the point where the truckdriver must have reacted to the impending collision to determine his negligence vel non. This point in time and distance would be about ¾ of a second prior to the application of the brakes by the truckdriver and 67½ feet further back on the highway. The plaintiff’s vehicle in turn would be entering the west side of the south bound portion of the highway. The plaintiffs contend in 5 points of error that the trial court erred in sustaining the plea of privilege because there was evidence both factually and legally to support the defendant’s negligence and proximate cause of the collision, requiring the trial court to overrule the plea of privilege. The plaintiffs contend that the truckdriver defendant was negligent in two particulars: 1) in failing to keep a proper lookout; and 2) by improperly and negligently changing lanes. There are certain basic rules that govern the decision of this type of case. First, for venue purposes the plaintiff must establish that the defendant truckdriver who asserted his plea of privilege committed some negligent act or omission in the county in which the action was brought that proximately caused the damages complained of. D. E. McAlister Trucking Company v. Shaw, 352 S.W.2d 530 (Tex. Civ.App. — Ft. Worth 1961). On appeal from an order sustaining the defendant’s plea of privilege, the Appellate Court should affirm the judgment of the trial court if there exists in the record evidence of probative value, sufficient to support the trial court’s judgment. On the no evidence contention, if, discarding all of the adverse evidence, and giving credit to all of the evidence that is favorable to the successful party, and indulging every reasonable conclusion that is favorable to him, a trier of the facts may have found in his favor, then it is to be concluded that there is evidence to support the finding. This rule is applicable on appeal from orders sustaining or overruling a plea of privilege. Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97 (1953). It is well settled that a person is not bound to anticipate the negligent or unlawful conduct of another. De Winne v. Allen, 154 Tex. 316, 277 S.W.2d 95 (1955). The truckdriver defendant had the right of way. The driver with the right of way is under a duty to take evasive action (or his failure to take evasive action is negligence), only after the other driver without the right of way has done something which would alert a reasonable prudent person to the danger of a collision if evasive action is not taken. Skyline Cab Company v. Bradley, 325 S.W.2d 176 (Tex.Civ.App.' — Houston, 1959, ref., n.r.e.). Therefore, the truckdriver was not required to anticipate that the plaintiff would fail to yield the right of way until he actually entered the main portion of the highway. Up until such time the truck-driver was justified in believing that the plaintiff would act in a lawful or prudent manner. At that point in time when the truckdriver saw that the plaintiff was not going to yield the right of way, his evasive reaction in applying his brakes and turning to the left occurred within that time required of such a driver when we use the ordinary prudent person standard. We hold that the evidence supports such a finding by the trial court. The truckdriver s lookout was equally as alert. The driver with the right of way ordinarily has a duty to keep a lookout for other vehicles entering the intersection and his failure to do so is negligence, but such failure to keep a proper lookout is a proximate cause of the collision only if such lookout would have revealed something on the part of the other vehicle that, if seen, would have alerted him to the danger of a collision at such time or distance that proper evasive action taken by him would have prevented it. Pittman v. Licerio, 496 S.W.2d 676 (Tex. Civ.App. — Corpus Christi 1973). Taking into consideration the defendant’s speed, his reaction time, and that point when it was apparent that the plaintiff was going to fail to yield the right of way, we believe the defendant took such evasive action as an ordinarily prudent person would have done under the same or similar circumstances. The evidence is almost conclusive that the truckdriver saw the plaintiff driver at that point in time when his lookout would have required him to take such action. Even if we should agree with the plaintiff that there was some negligence on the part of the truckdriver, we cannot hold that there was evidence that such negligence was a proximate cause of the collision. Here, there is an implied finding of the trial court in the support of its judgment that such negligence, if established, was not a proximate cause of the collision. Both foreseeability and cause in fact are the essential elements in a proximate cause finding. They are not present in this case. Having considered all the evidence, we are required to affirm the judgment of the trial court. Missouri Pacific Railroad Company v. Corpus Christi Hardware Company, 414 S.W.2d 18S (Tex.Civ.App. —Corpus Christi 1967) ; Samford v. Duff, 483 S.W.2d 517 (Tex.Civ.App. — Corpus Christi 1972, ref.n.r.e.). Judgment of the trial court is affirmed.

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William Monroe BROOKSHIRE, Appellant, v. HOUSTON INDEPENDENT SCHOOL DISTRICT, Appellee. No. 979. Court of Civil Appeals of Texas, Houston (14th Dist.). April 17, 1974. Benton Musslewhite, Brown, Mussle-white, Teed & Brown, Houston, for appellant. Charles G. King, Bracewell & Patterson, Houston, for appellee. COULSON, Justice. This is an appeal from a summary judgment entered against appellant William Monroe Brookshire, plaintiff below, and for appellee, the Houston Independent School District. Appellant, an employee of appellee, sued for personal injuries caused by the allegedly negligent operation of a forklift at a warehouse owned and operated by appellee. The sole question here is whether a forklift is a “motor vehicle” as that term is used in section 19A of the Texas Tort Claims Act, Tex.Rev.Civ.Stat.Ann. art. 6252-19 (Supp.1974). Appellant alleges that he was injured as the result a fall, when a forklift, operated by a fellow employee, backed out from under a platform upon which appellant was standing and which was being held aloft by the forklift. Appellee moved for summary judgment, attaching the affidavit of Mr. Martin Robinson, appellee’s supervisor of warehouses. Mr. Robinson called the forklift a “narrow aisle stacker” and stated that it was used to move and stack merchandise. Several forklifts are in use at the warehouse, and all are powered by electric batteries. The forks move up and down, and pallets are placed on them. Mr. Robinson stated that the forklifts have never been operated on any public street or road nor were they intended for such use. They have no lights of any kind and require neither a license registration nor a licensed driver. The trial judge held, as a matter of law, that such a forklift was not a “motor vehicle” within the meaning of section 19A of the Texas Tort Claims Act and that no genuine issue of material fact existed. Section 19A of the Texas Tort Claims Act provides in full: “The provisions of this Act shall not apply to school districts or to junior college districts except as to motor vehicles.” The Act does not contain a definition of the term “motor vehicle.” The Legislature has defined the term in four other acts, and appellant places great reliance upon the differences in these definitions of the same term. The Regulation of Vehicles Act, Tex.Rev.Civ.Stat.Ann. art. 6675a-l(a) (1969), provides for the registration of vehicles and defines “vehicle” as follows: ‘Vehicle’ means every device in, or by which any person or property is or may be transported or drawn upon a public highway, except devices moved only by human power or used exclusively upon stationary rails or tracks. “Motor vehicle” is then defined as a “self-propelled” vehicle. That- part of the above act which provides for the licensing of drivers contains precisely the same definition. Tex.Rev.Civ.Stat.Ann. art. 6687b sec. 1(a) (1969). The Uniform Act Regulating Traffic on Highways, Tex.Rev.Civ.Stat. Ann. art. 6701d sec. 2(a) (1969), defines a “vehicle” as follows: Every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except devices moved by human power or used exclusively upon stationary rails or tracks. “Motor vehicle” is then defined as every vehicle which is “self-propelled.” The Safety Responsibility Law, Tex.Rev.Civ. Stat.Ann. art. 6701h sec. 1(3) (Supp.1974) contains the following definition: ‘Motor Vehicle’ — Every self-propelled vehicle which is designed for use upon a highway, including trailers and semitrailers designed for use with such vehicles (except traction engines, road rollers and graders, tractor cranes, power shovels, well drillers and implements of husbandry) and every vehicle which is propelled by electric power obtained from overhead wires but not operated upon rails, [emphasis added] The Motor Fuel Tax chapter of the Tax Code, Tex.Tax.-Gen.Ann. art. 9.01(2) (1969), V.A.T.S., provides: ‘Motor vehicle’ means every self-propelled vehicle designed for operation or required to be licensed for operation upon the public highway. Tractors, combines, and other vehicles not required to be so licensed shall be deemed to be motor vehicles to the extent they are operated upon the public highway with motor fuel on which the tax is required to be paid, [emphasis added] The appellant acknowledges that a forklift is not a “motor vehicle” under the two definitions which employ the concept of being “designed” for use on the public roads. However, appellant argues that a forklift is a “motor vehicle” under the other two statutory definitions, because people and goods “may be transported” upon a highway by a forklift. He urges that any doubt should be resolved in his favor, because section 13 of the Texas Tort Claims Act calls for a liberal construction of the Act. It is also urged that, when conflicting statutory definitions are ignored, a forklift is a “motor vehicle” as that term is ordinarily and customarily defined. None of the statutory definitions quoted above are controlling upon the question under consideration. When the Legislature defines a term in one statute and uses the same term in relation to the same subject matter in a later statute, it will be presumed that the latter use of the term is in the same sense as previously defined. Brown v. Darden, 121 Tex. 495, 50 S.W.2d 261 (1932). However, the term “motor vehicle” as used in the Texas Tort Claims Act relates to the waiver of sovereign immunity and the assumption of tort liability; the four acts in which “motor vehicle” is defined are wholly unrelated to these subjects. A word defined in one act does not necessarily determine the word’s meaning in another act dealing with a different subject. Gulf, C. & S. F. Ry. Co. v. Woods, 262 S.W. 229 (Tex.Civ.App. — Austin 1924, no writ). Even though no statutory definition is controlling here, we believe that such a forklift is not a “motor vehicle” either under the statutory definitions which appellant believes militate in his favor or under the common, ordinary meaning of the term. The definition of “vehicle” in Articles 6675a and 6701d must logically be said to implicitly contain the concept that the device was designed to transport people or property upon the public highway. If a vehicle is simply every device which conceivably “may be” used to transport persons or property, in the sense of “might” be used, then a vast array of self-propelled devices having no relation to the public highways would be included in these statutes governing the public roads and highways. The commonly understood meaning of “may be” when used in a statute is “in the future,” unless a contrary intention appears from its use in the statute. Guerra de Chapa v. Allen, 119 F.Supp. 129 (S.D. Tex.1954). One of the primary rules of statutory construction is that a term employed but not defined in a statute is to be given its ordinary and popular meaning. Numerous courts have given an ordinary and general definition to “motor vehicle” as used in insurance policies. In International Ins. Co. in N. Y. v. Hensley Steel Co., Inc., 497 S.W.2d 64 (Tex.Civ.App. — Waco 1973, no writ), a forklift was held not to be a “motor vehicle” under an insurance policy which excluded motor vehicles from coverage. The court gave the ordinary and general definition of “motor vehicle” as “a self-propelled vehicle designed for, intended to be used for, or actually used to transport persons and property over roads or highways.” Appellant relies upon Davis v. National Casualty Co., 142 Tex. 29, 175 S.W.2d 957 (1943), which involved the definition of “motor vehicle” in an insurance policy according to its ordinary import. There a caterpillar tractor was pulling an oil derrick on rollers over a public highway. The Supreme Court observed that the statutory definitions of “vehicle” in Articles 6675a and 6687b were “substantially the same” as the definitions found in the cases when that term is given its general and ordinary meaning. The Court held that the tractor together with its derrick was a “vehicle,” but nothing said therein conflicts with this Court’s holding, since the tractor was obviously designed to be driven at times on the public highway and was actually so employed at the time of the accident. The Court did cite cases .from other jurisdictions which stated that a wheelbarrow, an ocean liner, a railroad car, and other devices could all be considered a “vehicle,” but all of the Texas decisions defining the term according to its popular meaning (as well as all the statutory definitions) contain the concept of transit upon a public highway. An additional ground for our holding presents itself when section 3 of the Tort Claims Act, the basic liability provision, is compared to section 19A, the provision that school districts are liable for “motor vehicles.” Section 3 provides in pertinent part: Each unit of government in the state shall be liable for money damages . . . or personal injuries . . . when proximately caused by the negligence or wrongful act or omission of any officer or employee acting within the scope of his employment or office arising from the operation or use of a motor-driven vehicle and motor-driven equipment, other than motor-driven equipment used in connection with the operation of floodgates or water release equipment by river authorities, . . . under circumstances where such officer or employee would he personally liable to the claimant. . . . [emphasis added] Section 19A states that school districts shall be liable for “motor vehicles,” but makes no mention of “motor driven equipment.” A forklift must logically be considered as either a “motor vehicle” or a piece of “motor driven equipment,” and we believe that it is a piece of equipment as that term is ordinarily and popularly defined. The maxim “expressio unius est ex-clusio alterius” is frequently applied in the construction of statutes, and it means simply that the “inclusion of the specific limitation excludes all others.” Harris County v. Crooker, 112 Tex. 4S0, 248 S.W. 652 (1923). The usual application of the maxim has been taken one step further in this act, because the Legislature itself has created liability for one class of devices in one section, while it has previously created liability for that class and a related class in a prior section of the same act. Section 13 of the Act provides that the “Act shall be liberally construed to achieve the purposes hereof,” but appellant places too great a reliance upon this injunction. The purpose of section 19A is obviously to create liability on the part of school districts solely for the operation of “motor vehicles.” Section 13 does not give carte blanche to the courts to extend the tort liability of school districts beyond the category expressly recognized, nor to extend that category by defining the terms used to describe it beyond their usual and ordinary meaning. Affirmed.

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CHILTON CORPORATION, d/b/a Credit Bureau Services, Appellant, v. Bobby G. MOORE, Appellee. No. 17489. Court of Civil Appeals of Texas, Forth Worth. March 29, 1974. Rehearing Denied May 3, 1974. Carrington, Coleman, Sloman, Johnson & Blumenthal, James A. Ellis, Jr., and Corbet F. Bryant, Jr., Dallas, for appellant. Cribbs, McFarland, Holman & Holloway, and Jesse A. Holloway, Arlington, for ap-pellee. OPINION BREWSTER, Justice. This appeal is by the defendant Chilton Corporation, from an order overruling its plea of privilege whereby it sought to have the case transferred to Dallas County where its principal office was located. The plaintiff, Bobby G. Moore, had filed this case in Tarrant County. He sought to recover damages against defendant, Chil-ton Corporation, allegedly caused by that defendant negligently gathering and disseminating a false credit report on him. Moore’s contention on the appeal is that he has the right to keep this case in Tar-rant County under Subdivision 23, Art. 1995, Vernon’s Ann.C.S. No other subdivision is involved. The particular part of Subdivision 23 that is involved here provides in part the following: “Suits against a private corporation . . . may be brought ... in the county in which the plaintiff resided at the time the cause of action or part thereof arose, provided such corporation . . . has an agency or representative in such county; . . . . ” At the hearing it was undisputed that the plaintiff resided in Tarrant County at all times involved here; that defendant is a private corporation and that defendant has an agency or representative in Tarrant County. In order to keep venue of this case in Tarrant County under the above quoted part of Subdivision 23, Art. 1995, it was necessary that the plaintiff, Moore, at the venue hearing prove by a preponderance of the evidence (1) all the elements of the cause of action that he had alleged against the defendant, (2) that a part of the cause of action arose while plaintiff was a resident of the county of suit, (3) that defendant is a private corporation, and (4) that defendant has an agency or representative in the county of suit. See Cline v. Southwest Wheel & Mfg. Company, 390 S.W.2d 297 (Amarillo Tex.Civ.App., 1965, no writ hist.) (cases therein cited), and 60 Tex. Jur.2d 64, Venue, § 206, note 14. The plaintiff contends that the basis of his action is the Federal Statutes appearing in 15 U.S.C.A., § 1681 through § 1681s inclusive, which statutes deal with and regulate in part Credit Reporting Agencies. Section 1681e, subd. (b), created a duty on defendant, whenever it prepared a consumer’s report, to “follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.” Section 1681c provides: “Any consumer reporting agency or user of information which is negligent in failing to comply with any requirement imposed under this subchapter with respect to any consumer is liable to that consumer in an amount equal to the sum of — (1) any actual damages sustained by the consumer as a result of the failure; (2) in the case of any successful action to enforce any liability under this section, the costs of the action together with reasonable attorney’s fees as determined by the court.” In plaintiff’s petition he alleged that he had applied for credit or loans at several different places including the First National Bank of Fort Worth, and that defendant had furnished to these people bad credit reports on plaintiff that resulted in them refusing to extend credit to him to his damage. He alleged that defendant was guilty of several acts of negligence that resulted in damage to him. From this it is apparent that essential elements of plaintiff’s cause of action that he had to prove were that defendant committed an act of negligence that proximately caused damage to him. Defendant’s first and second points of error on this appeal were that the trial court erred in overruling his plea of privilege because (1) plaintiff presented no evidence to prove that defendant committed any negligent act, and (2) the evidence was insufficient to show that defendant committed a negligent act. We overrule these two points. The Federal Statute referred to placed a duty on the defendant, a consumer reporting agency, since it prepared and disseminated a credit report on plaintiff, to “follow reasonable procedures to assure maximum possible accuracy of the information” in the report about plaintiff. Plaintiff proved that defendant put out a bad credit report on him. They gave him a very bad credit rating. They contended that Sears Roebuck Company advised them that Sears Roebuck Company rated plaintiff’s credit as 1-9, which was very bad. He also proved that this credit information was false and that all involved corrected it later. Plaintiff proved that the credit information on him was gathered by and disseminated in Tarrant County by defendant’s office that is located in Arlington, Tarrant County, Texas. Its office manager testified that defendant got a rush call from one of its members for credit information on plaintiff. The credit information was to be furnished the member within 8 hours. Defendant’s procedure in such a case was for its employee to telephone to Sears Roebuck & Company, give them the plaintiff’s name, his wife’s name, their address, and ask them to give defendant the credit information they had on their ledger about plaintiff. A Sears Roebuck employee would then give to defendant’s employee, over the telephone, the information their ledger allegedly showed concerning plaintiff’s credit rating. Defendant would put this information in their file on plaintiff. Defendant’s office manager testified that there was one other way that defendant’s employees sometimes handled the gathering of credit information from Sears Roebuck. Defendant would prepare a trade slip giving the name of the person being inquired about, such person’s wife’s name, and their address and this trade slip would be turned over to defendant’s courier who would hand-deliver this and other similar trade slips to Sears Roebuck and would go back to Sears Roebuck the next day to get the credit information Sears furnished on each person inquired about. He testified that the credit information involved here that they got from Sears on plaintiff was gotten from them in one of the two above described ways. The Sears report was the only bad credit information defendant received on plaintiff. After receiving credit information on plaintiff in one of the two ways referred to above, the defendant then prepared a report wherein they showed that plaintiff’s credit rating was very bad and disseminated it to the persons to whom plaintiff had applied for credit. Defendant’s office manager testified that defendant took no further steps whatever to check or otherwise determine that the bad credit information they received from Sears Roebuck on plaintiff was accurate or that it actually applied to plaintiff. Defendant did not even keep records to show which of its employees handled the matter of gathering the incorrect information on plaintiff. One ground of negligence alleged by plaintiff was in effect that defendant had violated the duty that is imposed on it by 15 U.S.C.A., § 1681e, subd.(b), to “follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.” The 4th ground of negligence alleged by plaintiff alleges in substance the violation of that duty. We hold that defendant’s contentions that there was no evidence and insufficient evidence to raise the negligence issue was without merit. The evidence that we have referred to above was sufficient to raise the issue as to whether or not defendant was guilty of negligence as charged in violating the duty imposed on it by 15 U.S.C. A., § 1681e, subd.(b). In defendant’s third and fourth points of error it contends that plaintiff, Moore, offered no evidence to show that he sustained damages that were reasonably foreseeable by plaintiff and that the evidence plaintiff offered was insufficient to show that he sustained damages caused by defendant’s negligence. We overrule these points. The law is that at a venue hearing it is not necessary to establish the amount of damages claimed. It is only necessary at such a hearing to show that the plaintiff did sustain some damage by virtue of defendant’s negligence. Gulf Oil Corporation v. Martindale, 381 S.W.2d 141 (Beaumont Tex.Civ.App., 1964, no writ hist.); Han-slik v. Nickels Ginning Company, 496 S. W.2d 788 (Amarillo Tex.Civ.App., 1973, no writ hist.); and Hawkins v. Schroeter, 212 S.W.2d 843 (San Antonio Tex.Civ.App., 1948, no writ hist.). This Hawkins case was a suit for damages for personal injuries based on negligence. The following is from the opinion in the Hawkins case at page 846: “In Black’s Law Dictionary (3d Ed.) the verb ‘injure’ is thus defined: ‘To violate the legal right of another or inflict an actionable wrong (p. 965).’ The noun ‘injury’ is defined as ‘any wrong or damage done to another, either in his person, rights, reputation or property.’ “It is conceded that the amount of pecuniary damages sustained as the result of the injury, the extent of the injury, in other words, is not a venue fact, nor an element of a venue fact. Therefore, all a plaintiff needs to show in order to maintain venue is that a legal right of his has been violated as a result of a particular class or kind of wrongful act.” The evidence in this case showed that defendant sent to the First National Bank of Fort Worth a credit report on plaintiff showing the unfavorable credit information at a time when plaintiff had pending an application for an $8,000.00 loan from that bank. The bank employee had led plaintiff to believe that this loan would probably be granted and advised him that they would tell him for sure the next day. The plaintiff at the time had a $2,000.00 line of credit at the bank. He had also a $5,000.00 C. D. from another bank that he was going to put up as collateral, so actually what he was seeking was to be extended by the bank an unsecured credit for an additional $1,000.00. When he returned to the bank he was advised that the loan had been turned down. In connection with the loan he had also furnished. the bank a financial statement showing he had a net worth of over $50,000.00. It is true that there was no direct evidence to the effect that the loan was turned down because of the bad credit report on plaintiff that defendant had furnished to the bank. However, the facts and circumstances proved would strongly lead one to believe that the receipt of defendant’s credit report on plaintiff was the reason why the bank refused to make the loan to plaintiff that he had applied for. The court could consider circumstantial evidence in passing on the question. See Nunneley v. Weiler, 244 S.W.2d 707 (Fort Worth Tex.Civ.App., 1951, no writ hist.). We hold that the evidence referred to was sufficient to uphold the trial court’s implied finding that the plaintiff did sustain injury or damage as a proximate result of the defendant’s negligence. Affirmed.

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Betty Jean REID, Appellant, v. NORTH RIVER INSURANCE COMPANY, Appellee. No. 6359. Court of Civil Appeals of Texas, El Paso. April 3, 1974. A. R. Archer, Jr., Monahans, Max E. Ramsey, Odessa, for appellant. Scott, Hulse, Marshall & Feuille, J. F. Hulse, Charles R. Jones, El Paso, for ap-pellee. OPINION WARD, Justice. This is a workmen’s compensation case. The injury was the result of an automobile accident and the problem presented lies in the area of the employer’s control of the transportation and special mission exceptions to the “coming-and-going” rule regarding course of employment. The trial Court entered judgment for the insurance company based upon a jury finding that the injury was not sustained in the course of the employment. The employee complains that error was committed as the evidence conclusively established as a matter of law that she was in the course of her employment and that the jury finding was against the overwhelming weight of the evidence and was manifestly unfair and unjust. We affirm. The Appellant, Betty Jean Reid, was employed by Photography Unlimited, Inc., a corporation with offices and studios in El Paso, Albuquerque, New Mexico, and Fort Gordon, Georgia. Her work required that she travel in the 'area outside of El Paso where she contacted various stores to arrange the taking of photographs. Most of her time was spent in traveling and she used her own automobile. Her salary was set at $500.00 per month and in addition she was paid the sum of $20.00 per day for food and lodging when she was out of town. She was furnished a credit card by which her employer paid the cost of gasoline, tires, and expenses of maintenance for the car. At the time of her injury, she had her home in El Paso but was undergoing a training period with the expectation that she would be moving to Albuquerque for a permanent assignment. On the day of her injury, which was a Saturday, she arrived in El Paso from one of her trips and went directly to the office of her employer. Mr. Walter Parker, the owner of all of the stock of the corporation, invited her to lunch and while they were eating he informed her that he wanted her to go to work for the company on a permanent basis at the Fort Gordon, Georgia, office and that she was to leave the following Monday. When they returned to the office, they worked until about 8:30 P.M., when he requested that she drive him to the Jester’s Club, a bar in El Paso, and he did not have a car at the time. Mr. Parker actually drove her car to the bar where they stayed until about 11:00 P.M. and where they had a few drinks. They then started to Mr. Parker’s home but stopped at the El Morocco Club where they had a late supper. After eating, they continued with Mr. Parker still driving when the accident occurred. Mr. Parker lived some distance to the northwest of El Paso and for Mrs. Reid to take Mr. Parker from his office to his home and to return to her own home was a distance of some 55 to 60 miles. The dispute in the evidence is presented when Mr. Parker testified that all business of Photography Unlimited, Inc. had been .concluded when they left the company offices that night and they were merely enjoying a social evening together. He testified that he did request that the Appellant drive him to the Jester’s Club to pay some money he owed the bartender but that when it came time to leave, it was the Appellant who offered to take him to his home. He stated that he preferred to stay downtown and shoot some pool rather than go home but did accept the Appellant’s offer. He repeatedly denied that he directed or instructed her to drive him home and that after they left the office they never discussed company business. Appellant insists that it was Mr. Parker who suggested she take him home and that they could then discuss her proposed move to Georgia and that at the Jester’s Club they discussed her move and business and continued to go over these matters until the time of the accident. In connection with the course of employment issue, the trial Court charged the law of Section 1, Article 8309, Vernon’s Tex. Rev.Civ.Stat.Ann., applicable to the issue raised under the testimony and did not charge under Section lb. The following definition was used: “ ‘Injury in the course of employment’ means any injury having to do with and originating in the work, business, trade or profession of the employer, received by an employee while engaged in or about the furtherance of the affairs or business of his employer, whether upon the employer’s premises or elsewhere. An employee who is temporarily directed or instructed by her employer to perform services outside of the usual course of trade, business, profession or occupation of her employer is in the course of her employment while performing services pursuant to such direction or instruction.” No objection was made in the trial Court nor is any point presented here as to the definition. See Travelers Insurance Company v. Mesta, 435 S.W.2d 228 (Tex.Civ. App. — San Antonio 1968; writ ref’d n. r. e. 438 S.W.2d 905). The question of whether or not the Appellant was engaged in the course of her employment when she was injured is governed by the terms of Sections 1 and lb of Article 8309, as the Courts have interpreted the statutes both before and after the enactment of Section lb in 1957. 22 Sw.L.J. 841. Generally, an injury received by a workman while using the public streets and highways in returning from the place of employment after completing his day’s employment is not compensable because it is not incurred in the course of employment as required by the definition in Section 1 of Article 8309. American General Insurance Company v. Coleman, 157 Tex. 377, 303 S.W.2d 370 (1957). The rationale of the rule is that injury incurred in such travel does not arise out of the employment but that the injury is suffered as a consequence of risks and hazards to which all members of the traveling public are subject. Exceptions to the general rule which may be applicable from the facts before us are found in the first part of Section lb of Article 8309. The Appellant argues that here the transportation was under the control of the employer and the employee was directed in her employment to proceed from one place to another and thus perform a “special mission” for the employer. However, Section lb does not provide that an employee shall be regarded as being in the course of her employment when any one of the specified conditions is satisfied. Not only must one or more of the exceptions be satisfied, it is still necessary for the employee to show (a) that the injuries were of a kind and character that had to do with and originated in the work, business, trade or profession of the employer and (b) were received while the employee was engaged in or about the furtherance of the affairs or business of the employer. Texas General Indemnity Company v. Bottom, 365 S.W.2d 350 (Tex. Sup.1963); United States Fidelity & Guaranty Company v. Harris, 489 S.W.2d 312 (Tex.Civ.App. — Tyler 1972, writ ref’d n. r. e.). The jury in this case accepted the version of the dispute offered by Mr. Parker and considering his testimony, the visits to the two places of entertainment, the social drinking, and the lateness of the hour, we decline to say that as a matter of law the injury occurred in the course of the employment. The trip was not being made for any purpose related to the employment. According to the version accepted by the jury, the employee was engaged in a purely personal mission of pleasure which was in no way incident to her employment. Walker v. Texas Employers’ Insurance Association, 443 S.W.2d 429 (Tex.Civ.App. — Fort Worth 1969, writ ref’d). Also, having examined all of the evidence and the argument offered by the Appellant under her last point, we conclude that the finding was not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. The judgment of the trial Court is affirmed.

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LONE STAR BEER, INC., Appellant, v. REPUBLIC NATIONAL BANK OF DALLAS, Appellee. No. 18318. Court of Civil Appeals of Texas, Dallas. April 11, 1974. Rehearing Denied May 9, 1974. Cecil D. Elfenbein, Clark, West, Keller, Sanders & Ginsberg, Dallas, for appellant. Gordon H. Rowe, Jr., Gardere, Porter & DeHay, Dallas, for appellee. BATEMAN, Justice. Lone Star Beer, Inc. appeals from a take-nothing summary judgment in its suit against appellee Republic National Bank of Dallas for conversion of two checks totaling $11,017.24. Appellant was named as payee in both checks, and its name was endorsed on each of them. They were then endorsed for deposit by Warren Wholesale, Inc. and deposited to its credit in appellee bank. Appellee had filed a third party complaint against D. D. Warren, Jr., and Warren Wholesale, Inc., praying for judgment over against them in the event any judgment should be rendered against it. When appellee’s motion for summary judgment was sustained the third party complaint was dismissed without prejudice. D. D. Warren, Jr. was president and a substantial stockholder in appellant, as well as sole owner of Warren Wholesale, Inc., and by agreement with appellant he continued to haul beer to various customers he had in West Texas before he became a stockholder in and president of appellant. However, he did not have the required license to do so. Appellant had such a license but did not operate in West Texas. It was therefore agreed between them that Warren would buy beer in wholesale quantities from Lone Star Brewing Company, of San Antonio, Texas, but in the name and under the license of appellant. Appellant would forward to Warren the invoices and statements it received from Lone Star Brewing Company for such beer and Warren would issue his check in payment therefor. Warren was thus enabled to augment his income by buying and hauling beer to West Texas under the license of appellant. Checks that would come to appellant from these sales in West Texas would immediately be delivered to Warren. The two checks in question were given by Cap-rock Beverages, Inc. in payment for beer sold to it by Warren. Appellant had no claim to these checks; they belonged to Warren. Caprock Beverages, Inc. was not a customer of appellant, and the checks represented payment to Warren for beer that his trucks had hauled from the brewery in San Antonio to Caprock in West Texas. The facts of this case are quite similar to those involved in Lone Star Beer, Inc. v. First National Bank of Odessa, 468 S.W.2d 930 (Tex. Civ.App.—El Paso 1971, no writ). That case involved similar operations by D. D. Warren, Jr. in the Odessa area of West Texas, under an arrangement with Lone Star Beer, Inc. identical to the one involved here; and, as held by the El Paso Court of Civil Appeals in that case, we hold that appellee carried its burden of showing the absence of any genuine issue of material fact and that it was entitled to judgment as a matter of law. The following language of the El Paso court in that case at 933-934 is applicable and controlling here: Conversion has been defined in various ways. Basically, conversion is a wrongful deprivation of property. Bradley v. McKinzie, 226 S.W.2d 458 (Tex. Civ.App. NWH). There can be no conversion where the owner has expressly or impliedly assented to the taking or disposition. Terry v. Witherspoon, Tex. Civ.App., 255 S.W. 471; Tex.Com.App., 267 S.W. 973. Conversion may be committed against one who has legal possession regardless of the question of title. First National Bank of Colorado v. Brown, 85 Tex. 80, 23 S.W. 862 (1892). In order to recover on a theory of conversion, it is necessary that Lone Star Beer allege and prove one of three things, that being, that it is the owner of the property converted or that it had legal possession of the property so taken or that it is entitled to possession. The testimony of Lone Star Beer’s officers and directors expressly negate each proposition necessary to so sustain its allegations of conversion. The undisputed summary-judgment evidence in the record before us shows clearly that the checks in question actually belonged to Warren; regardless of whether he had authority to endorse appellant’s name thereon, the checks were his. That being true, appellee could not be guilty of converting these checks when it collected them and placed the money to the credit of Warren’s corporation. Appellant points to evidence that the Lone Star Brewing Company sued appellant in the district court at San Antonio for approximately $80,000 for beer allegedly sold to appellant but delivered to Warren, that appellant compromised this suit by paying $40,000 to Lone Star Brewing Company. From these facts appellant reasons that it became the owner of the beer for which the checks were given and, consequently, of the checks themselves. In its first two points of error appellant asserts that issues of fact existed as to ownership of both the checks and the beer. We do not agree with this argument. Appellee is not sued herein for converting beer, but only for converting checks, and Warren’s ownership of the checks and his right to possession thereof appear without dispute. Moreover, it appears from the summary-judgment evidence that the filing of the $80,000 suit and the compromise settlement thereof occurred long after the issuance and deposit of the two checks involved here. For these reasons, we overrule appellant’s first two points of error. By its third, fourth and fifth points of error, appellant asserts that in buying beer and selling it in wholesale quantities without a license Warren was violating the Texas Liquor Control Act. These points are also overruled. In the first place, appellant’s acquiescence and participation in the allegedly illegal acts of Warren preclude it from recovering damages from ap-pellee. The policy of the law in such cases is to leave the parties where they have placed themselves. First Nat. Bank of Breckenridge v. First Nat. Bank of Stamford, 53 S.W.2d 75, 76 (Tex.Civ.App.— Eastland 1932, writ dism’d). In the second place, appellee had no contractual relations with appellant, legal or illegal. If Warren’s sale of the beer to Caprock Beverages, Inc. was illegal that circumstance would not create liability on the part of appellee for converting the checks, especially at the behest of one who was a participant in the allegedly illegal activity. The summary judgment was correct and is affirmed. Tex. Penal Code Ann. art. 666-1 et seq. (Yernon 1952).

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DELTA TIRE CORPORATION, Appellant, v. Robert Rodney LLOYD, Appellee. No. 6364. Court of Civil Appeals of Texas, El Paso. March 20, 1974. Carrington, Coleman, Sloman, Johnson & Blumenthal, James E. Coleman, Jr., Robert E. Wood, Jr., Dallas, for appellant. Warren Burnett, Associated, Bob Hoblit, Odessa, for appellee in Ward County. Jamail & Gano, Don M. Barnett, Houston, for appellee in Harris County. OPINION OSBORN, Justice. This is a venue case. Suit was brought by Appellee against Appellant to recover damages for personal injuries sustained as a result of an accident which occurred while the Appellee was installing a new tire on a tire rim. The trial Court overruled the Appellant’s plea of privilege. The judgment of the trial Court is reversed and the case ordered transferred to Harris County, Texas. The original petition alleged that Appel-lee was installing and inflating a new tire, manufactured by the Appellant, for a customer at a service station when the tire suddenly and unexpectedly blew out resulting in Appellee being seriously injured. It was further alleged that the Appellant was liable under the doctrine of strict liability because the tire was manufactured by the Appellant and that such product was defective in material, workmanship, and design at the time it left the hands of the manufacturer. There was also an allegation of a breach of express or implied warranties and guarantees. After the Appellant filed a plea of privilege to have the case transferred from Ward County to Harris County, the Appel-lee filed a controverting plea alleging venue in Ward County under the provisions of Subdivisions 9a and 23 of Article 1995, Vernon’s Tex.Rev.Civ.Stat.Ann. The only witness to testify at the plea of privilege hearing was the Appellee. He testified that on October 25, 1972, a customer at the filling station where he was working in Ward County desired to have a new tire installed on his automobile. Mr. Lloyd said he contacted the Delta Tire dealer who delivered a new tire to the filling station. He said both the tire and a sticker located on it identified the product as a Delta Tire and stated the size of the tire. He testified that he inspected the tire and did not observe any defects and then placed the tire on the rim using a hand-mounted machine. He then aired the tire to thirty pounds and was in the process of putting more air in it when the tire blew up injuring his left hand. He said after the accident he inspected the tire and saw a split about two inches long where the bead on the tire is located. The Appellant, by its points of error, asserts that the Appellee did not establish venue in Ward County under either Subdivision 9a or 23 of Article 1995. By his one counter-point, the Appellee asserts that venue was properly established in Ward County under Subdivision 23 under the doctrine of strict liability. We find no evidence in the record which would support a finding of negligence so as to maintain venue under Subdivision 9a, and the Ap-pellee in his brief does not contend otherwise. With regard to Subdivision 23, the Ap-pellee alleged in his petition that the product was defective at the time it left the hands of the manufacturer, but in his brief he contends that he merely had to prove the existence of the defect at the time he received the tire. There is a substantial difference in these two contentions which involve the basic issue before this Court. In order to maintain venue under Subdivision 23, it was necessary not only to plead specifically, but also .to prove facts showing a cause of action arose in favor of the Appellee against the Appellant. Victoria Bank & Trust Co. v. Monteith, 138 Tex. 216, 158 S.W.2d 63 (1941); Employers Casualty Company v. Clark, 491 S. W.2d 661 (Tex.Sup.1973). This he failed to do. The applicable rule is set forth in Malinak v. Firestone Tire & Rubber Company, 436 S.W.2d 210 (Tex.Civ.App.— Houston (1st Dist.) 1968, writ ref’d n. r. e.), where the Court said: “In accordance with the general rule in order for appellant to have raised a fact issue against Firestone under the theory of strict liability, appellant must have produced evidence of probative force that the tire was defective when it left the hands of Firestone. Jack Roach-Bissonnet, Inc. v. Puskar, 417 S. W.2d 262 (Tex. 1967); Coca Cola Bottling Company of Houston v. Hobart, 423 S.W.2d 118 (Houston Civ.App., 14th Dist., 1968, error ref., n. r. e.).” There is no evidence that this particular tire was defective when it left the hands of the manufacturer. Neither was there any proof that the tire was still wrapped at the time of delivery by the distributor to the service station, which under the holding in the Malinak case might constitute some evidence of delivery in its original condition. In San Antonio Tent & Awning Company v. Martin, 437 S.W.2d 647 (Tex.Civ. App. — Texarkana 1969, no writ), the Court in a venue case involving Subdivision 23 of Article 1995 pointed out that it is incumbent upon the party bringing the suit to prove that the product was defective at the time it was manufactured and that nothing happened to it between the time of manufacture and the time of injury which would account for the defect. Such proof is lacking in the case now before this Court. The identical question was before the Court in Wire Rope Corporation of America, Inc. v. Barner, 446 S.W.2d 361 (Tex. Civ.App. — Tyler 1969, no writ), and in that case the Court said: “Under the evidence in this case, ap-pellee must rely upon Exception 23 to sustain his contention that the cause of action alleged against appellant or a part thereof arose in Smith County, Texas. Therefore, one of the venue facts appel-lee had the burden to establish was that appellee has, in fact, a cause of action against appellant. Unless there is, in fact, a ‘cause of action’, there could be no ‘part thereof’ arising anywhere. Admiral Motor Hotel of Texas, Inc. v. Community Inns of America, Inc., supra. Therefore, before reaching the question as to where the ‘cause of action’ or a ‘part thereof’ arose, we must determine whether appellee, by a preponderance of the competent evidence established, did, in fact, have a cause of action against the appellant, Wire Rope Corporation of America, Inc. An essential element of appellee’s cause of action is that the cable was in a defective condition as it left the hands of the manufacturer, which in the case at bar is alleged to be Wire Rope Corporation of America, Inc. San Antonio Tent & Awning Company v. Martin, 437 S.W.2d 647 (Tex.Civ.App., Texarkana, 1969, n. w. h.); Jack Roach-Bissonnet, Inc. v. Puskar, 417 S.W.2d 262 (S.Ct, 1967); Pittsburg Coca-Cola Bottling Works of Pittsburg v. Ponder, 443 S. W.2d 546, 548 (S.Ct., 1969). See 41 T. L.R. 858 for a discussing of this question by Dean Page Keeton of the University of Texas Law School. In Restatement of the Law of Torts (Second Ed.), Sec. 402A, Comment (g), we find the following statement concerning strict liability: ‘(g) * * * The seller is not liable when he delivers the product in a safe condition, and subsequent mishandling or other causes make it harmful by the time it is consumed. The burden of proof that the product was in a defective condition at the time that it left the hands of the particular seller is upon the injured plaintiff; and unless evidence can he produced which will support the conclusion that it was then defective, the burden is not sustained.’ ” Without deciding whether the Appellee proved a defect that existed at the time he received the tire, he clearly did not prove a defect at the time the tire left the hands of the manufacturer, and as set forth in the cases noted herein, the Appellee’s burden was that set forth in his pleading and not as stated in his brief. The order of the trial Court is reversed and the case is ordered transferred to Harris County.

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James R. BROWN et ux., Appellants, v. Gordon R. POWELL, Appellee. No. 986. Court of Civil Appeals of Texas, Houston (14th Dist.). April 17, 1974. Rehearing Denied May 8, 1974. D. Brooks Cofer, Jr., Cofer & van Over-beek, Bryan, for appellants. James R. Roos, Painter & Painter, Houston, William R. Vance, Bryan, for ap-pellee. CURTISS BROWN, Justice. This is a wrongful death case under the Texas guest statute. Stephen Brown, the son of appellants, was killed in a one-car collision, while riding as the guest of. Michael Powell, the son of appellee. Michael Powell was also killed in the accident. Appellants brought this wrongful death action against appellee Powell on a negligent entrustment theory. Trial was to a jury, but the trial court granted judgment non obstante veredicto for appellee. On the night of the fatal accident, April 28, 1970, Michael Powell was driving a family car. His passengers were Stephen Brown and James Robison. There is no dispute that they were guests under the Texas guest statute, Vernon’s Tex.Rev. Civ.Stat.Ann. art. 6701b (1969). The accident occurred on a two-lane section of State Highway 30. It was an unpopulated, heavily wooded area, and the highway was, therefore, very dark. From testimony of Robison and the investigating officer, Officer Flanagan, the accident can be roughly reconstructed. Robison was sleeping in the front passenger seat. Stephen Brown was lying on the back seat, probably asleep. Robison awoke hearing gravel hitting under the car. He realized the car was moving off the road to the right and looked up to see Michael Powell turn the steering wheel sharply to the left. This is all he was able to remember from the accident. From tire marks at the scene, Officer Flanagan testified that after the swerve to the right for 70 feet, the car skidded back across the road for some 105 feet, went off the road on the left, turned over and bounced through a gully once or twice for 240 feet, and finally struck a tree. Just before the spot where the car left the road on the right, the highway goes over a small hill and, just over the crest, takes a slight curve to the left. There was testimony that this was a very gradual curve and that there was no sign warning of the curve or instructing reduced speed. In response to special issues, the jury found that Michael Powell was a reckless and incompetent driver and that his father should have known that fact. It found that he was speeding at the time of the accident, that he acted with heedless and reckless disregard for the rights of others (gross negligence), and that this was a proximate cause of the occurrence. We affirm the judgment non obstante veredic-to of the trial court on the basis that there was no evidence to support the finding of gross negligence. Recovery by a guest passenger requires a showing that the host driver was guilty of gross negligence or that he intentionally caused the accident. Mc-Phearson v. Sullivan, 463 S.W.2d 174 (Tex.Sup.1971); Harbin v. Seale, 461 S. W.2d 591 (Tex.Sup.1970); Bowman v. Puckett, 144 Tex. 125, 188 S.W.2d 571 (1945). Under the Texas cases, evidence of excessive speed can support a finding of gross negligence when taken together with other circumstances such as knowledge of mechanical defects, known traffic hazards such as sharp curves or railroad crossings, driving in a residential or heavily populated area, and poor visibility. McPhearson v. Sullivan, supra; Harbin v. Seale, supra; Fancher v. Caldwell, 159 Tex. 8, 314 S.W. 2d 820 (1958). This accident occurred at night. There was no showing that Michael Powell knew of the curve, and it was affirmatively shown that it was not hazardous. Since Robison was asleep and the other two boys died, there is no subjective evidence pointing to conscious disregard for the rights of others on the part of Michael Powell. Even the evidence of excessive speed is weak. Appellee contends that it amounts to no evidence, but we need not reach that question. We are of the opinion that assuming excessive speed was shown, under all the facts and circumstances, Michael Powell was not shown to be guilty of gross negligence. Appellants failed to make a prima facie case, and judgment non obstante veredicto was therefore correct. Affirmed. . Amended by Tex.Laws 1973, Cli. 28, Sec. 3, at 42, effective September 1,1973.

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Edward MILLER et al., Appellants, v. The STATE of Texas, Appellee. No. 15299. Court of Civil Appeals of Texas, San Antonio. March 27, 1974. Salmanson & Smith, Austin, for appellants. John L. Hill, Atty. Gen. of Texas, Kathleen Durckel, Joe Longley, Asst. Attys. Gen., Austin, for appellee. PER CURIAM. This is an appeal from a judgment whereby the State of Texas recovered a joint and several judgment against Edward Miller and Credit Bureau of Laredo, Inc. for the sum of $35,000 for civil penalties. The transcript was timely filed in our Court on January 11, 1974. Briefs have been filed by appellant, Credit Bureau of Laredo, Inc. and by appellee, State. However, no brief was filed by appellant, Edward Miller, within thirty days as required by Rule 414, Texas Rules of Civil Procedure; nor has he sought to show good cause for failure to file same. On February 28, 1974, State filed its motion to dismiss the appeal of Edward Miller for such failure, and Miller did not reply to same. Accordingly, we conclude that the appeal of Edward Miller should be dismissed for want of prosecution. Rule 415, Texas Rules of Civil Procedure; Rodriguez v. Flores, 426 S.W.2d 285 (Tex.Civ.App.— San Antonio 1968, no writ) ; Lee v. Owen, 404 S.W.2d 84 (Tex.Civ.App. — San Antonio 1966, no writ). The appeal of Edward Miller is dismissed.

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JOHNSTON SALES COMPANY, Appellant, v. Henry LIZANA and Willie Lizana d/b/a Johnny’s Garage, Appellee. No. 15286. Court of Civil Appeals of Texas, San Antonio. Feb. 13, 1974. Rehearing Granted March 6, 1974. Peter N. Plumb, San Antonio, for appellant. Charles L. Smith, San Antonio, for ap-pellee. On Motion for Extension of Time to File Appellant’s Brief. PER CURIAM. On January 28, 1974, appellant filed its motion for an extension of time to file its brief, which was due to be filed on or before January 14, 1974. As good cause, appellant’s attorney averred that “ . due to an extremely heavy work load and the resignation of one of his secretaries as well as physical illness due to the flu and a back condition . . . ” he had been unable to timely complete said brief. On January 30, 1974, the brief was tendered to our clerk. Such motion has been controverted by appellees wherein it is asserted that good cause has not been shown. Rule 414 provides that appellant’s brief shall be filed within thirty days after the record is filed, and that upon good cause shown, the Court of Civil Appeals may grant an extension of time. Such rule standing alone would hardly vest our Court with any discretion to allow an extension of time, except upon a showing of good cause. However, Rule 415, which authorizes the Court to dismiss the appeal for want of prosecution where appellant has failed to timely file his brief or show good cause with no material injury to ap-pellee, provides by clear and unambiguous terms that the Court may decline, in any event, to dismiss the appeal. Hoke v. Poser, 384 S.W.2d 335 (Tex.1964). Thus, the Courts of Civil Appeals are granted a broad discretion regarding the time for filing of briefs in said courts. See Burns v. Allied Mills, Inc., 468 S.W.2d 119 (Tex.Civ.App. — Texarkana 1971, no writ); Rodriguez, v. Flores, 426 S.W.2d 285 (Tex. Civ.App. — San Antonio 1968, no writ); Yancy v. Texas General Indemnity Co., 417 S.W.2d 643 (Tex.Civ.App. — Tyler 1967, no writ). In keeping with the objective and spirit of the rules, this broad discretion is exercised by us in liberally construing good cause for an extension of time within which to file a brief where the motion for extension is filed within the time limits set forth in Rule 414 for filing said briefs. However, where the motion is not filed within such time limits, we strictly require good cause to be shown. This distinction is necessary if we are to submit cases with expedition and dispatch. Rule 412 requires cases which have not been advanced to be set for submission at least four weeks ahead of the date of submission. Therefore, in late January, 1974, our trial docket was examined to determine the cases ready for submission on March 6, 1974. This examination showed that appellant’s brief had not been filed, nor was there then pending a motion for extension of time. The transcript was in the possession of the attorney for appellant, and upon request to return same, said attorney advised our deputy clerk that he was working on his brief. Upon being advised by the deputy clerk that the time for filing same had expired, appellant’s attorney stated that he understood that he had sixty days within which to file said brief and would promptly file a motion for extension of time. This was done. The motion is in very general terms and somewhat contradictory. It fails to set forth good cause for failing to timely file said brief and wholly fails to set forth any cause for not filing the motion for extension of time within the thirty-day period. We, therefore, overrule said motion for extension of time to file appellant’s brief. We have examined the record in this cause and fundamental error is not shown. We, therefore, conclude that this appeal should be dismissed. Rodriguez v. Flores, supra. The appeal is dismissed. On Motion for Rehearing on Extension of Time for Filing Appellant’s Brief. Appellant’s attorney has filed a sworn motion for rehearing, supported by a statement from his medical doctor, to show good cause for his failure to timely file appellant’s brief. Said attorney candidly admits that his failure to file a motion for extension of time within the thirty-day period for filing said brief was caused by his miscalculation of the due date for said brief. Nevertheless, he urges that good cause exists for his failure to timely file said brief. The verified motion shows that he has been suffering disabling lower back pain since late December, 1973, from an early disc protrusion. This causes such severe lower back pain radiating across his left hip and down his left leg of such intensity that he is unable to walk, drive a car, sit in any one position for a length of time or arise from a chair without assistance. Such condition persists to the present time, although there are days when there is a remission in the pain. Nevertheless, during the forty-five-day period after the record was filed and before the brief was tendered, he was out of his office for eighteen days, and on other days he could only work a short time. During such limited work days, his time was largely occupied by clearing his desk of a backlog of work. He was not physically able to sit for the time and concentration required for an appellate brief. We conclude that such disabling physical condition is good cause for failure to timely file appellant’s brief even when viewed from a strict construction standpoint. Appellant’s motion for extension of time is granted, and said brief is ordered filed as of March 6, 1974. . All references are to Texas Rules of Civil Procedure. . See Appellate Procedure in Texas, The Appellant’s Brief, Section 12.10 [2].

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MAGIC CARPET COMPANY, Appellant, v. E. L. PHARR, Appellee. No. 18316. Court of Civil Appeals of Texas, Dallas. April 18, 1974. Norman P. Hines, Jr., Dallas, for appellant. David L. Hollenbeck, Irving, for appel-lee. GUITTARD, Justice. In this action on an account stated, we hold that plaintiff has made out a prima facie case by introducing a receipt signed by defendant acknowledging delivery of materials, but without stating the price or quantity, together with a check signed by defendant on which payment was stopped. Plaintiff’s petition is in the form of a suit on a sworn account for carpet installed in defendant’s house and also alleges the receipt and the check signed by defendant. Defendant’s answer alleges under oath that the quality of the carpet installed by plaintiff was inferior to that contracted for and that the quantity delivered was in excess of that contracted for. On trial without a jury the trial court sustained defendant’s “motion for instructed verdict” and rendered judgment for defendant. Plaintiff appeals and we reverse. Since defendant has not favored us with a brief, we accept the statements in plaintiff’s brief concerning the facts and the record. Texas Rules of Civil Procedure, rule 419. Plaintiff offered in evidence the “dealer’s delivery receipt” dated October 28, 1972, signed by defendant, acknowledging to Magic Carpet Company that he had received in good condition merchandise described as “wall to wall cpt. in den, D.R. Kit, Hall & 2 Baths.” Plaintiffs also offered in evidence the check of the same date in the amount of $1,070 payable to “Magic Carpets,” signed by defendant and stamped “payment stopped.” Both of these documents were proved by defendant’s answers to requests for admissions. Ronnie Thomas, sole proprietor of Magic Carpet Company, testified that the check was given in payment for carpet purchased and that he attempted to cash it but the bank on which it was drawn stamped it “payment stopped” and that he had never received any other payment for the carpet. No evidence was offered by defendant. The trial court’s findings of fact recite that Thomas had no personal knowledge of the Pharr account, that defendant signed the “delivery receipt,” and that payment was stopped on a check for $1,070 signed by defendant payable to Magic Carpet. The court’s only conclusion of law is that defendant’s motion for instructed verdict should be granted because plaintiff’s evidence “was insufficient as a matter of law, there being no evidence of any contractual relationship between Plaintiff and Defendant, to support the recovery as plead by the Plaintiff.” On this appeal, plaintiff presents various points of error, of which we need consider only the third, which asserts that the trial court erred in sustaining defendant’s “motion for instructed verdict” on the ground that plaintiff had failed to prove a prima facie case establishing a contractual relationship. This point is sustained. Although there is some question as to whether “account stated” is the proper term for establishing the amount due for goods or services furnished without previous agreement on the price, all authorities agree that proof of plaintiff’s delivery of goods or rendition of services to defendant and defendant’s acknowledgment of a certain sum as due to plaintiff is sufficient for a prima facie case, without other proof of price, value, quantity, or specific items. Dodson v. Watson, 110 Tex. 355, 220 S.W. 771 (1920); Alexander Marketing Co. v. Medford, 170 S.W.2d 809 (Tex.Civ.App. — Texarkana 1943, no writ) ; Central Nat’l Bank v. Cox, 96 S.W.2d 746 (Tex.Civ.App. — Austin 1936, writ dism’d); 6 Corbin on Contracts §§ 1305, 1310, 1312 (1962). The “delivery receipt” signed by defendant shows that plaintiff delivered materials to defendant. Defendant’s check of the same date payable to plaintiff for $1,070 is amply sufficient as an acknowledgment of the amount due in view of decisions holding that an implied acknowledgment of the amount due is sufficient. Graham v. San Antonio Machine and Supply Corp., 418 S.W.2d 303, 312 (Tex.Civ. App. — San Antonio 1967, writ ref’d n. r. e.) ; Wilson v. Clarke Floor Machine Co., 380 S.W.2d 768 (Tex.Civ.App. — Eastland 1964, no writ) ; Davis v. Gilmore, 244 S. W.2d 671 (Tex.Civ.App. — San Antonio 1951, writ ref’d) ; Peurifoy v. Hood Rubber Products Co., 59 S.W.2d 428 (Tex.Civ.App. — Eastland 1933, no writ). A check on which payment was later stopped was specifically held to be an acknowledgment sufficient to establish a stated account by the Supreme Court of Nebraska in Hansen v. Abbott, 187 Neb. 248, 188 N. W.2d 717 (1971). Consequently, a prima facie case was shown, and the trial court erred in rendering judgment for defendant on the ground of lack of evidence of a contractual relationship. Plaintiff further argues that we should render judgment in his favor for the amount acknowledged to be due, together with an attorney’s fee in a stipulated amount, because defendant failed to plead or prove fraud, mistake or duress as a defense to the suit on the .account stated. Plaintiff’s theory is that in absence of such pleading no proof by defendant would have been admissible and the court would have had no alternative but to render judgment for plaintiff. We are unwilling to render judgment on this incomplete development of the facts. Defendant pleaded under oath that the carpet installed was inferior in quality to that contracted for and that the quantity was greater than that contracted for. If defendant discovered the defect in quality and the error in quantity before he signed the check for $1,070, but delivered the check anyway, that action might constitute a compromise of a disputed claim and he might be barred under the authorities above cited. On the other hand, if he discovered these variances later he might not be so barred and he might be entitled to offer that proof in rebuttal of plaintiff’s prima facie case. Dodson v. Watson, supra; 6 Corbin on Contracts § 1310. Although the pleading in its present form may be subject to exception, we conclude that the defect does not justify rendition of judgment at this stage. Reversed and remanded.

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Ex parte Jerri SPENCER, Relator. No. 8232. Court of Civil Appeals of Texas, Texarkana. April 9, 1974. Bill Glaspy, Mesquite, Louis J. Raffaelli, Raffaelli & Hawkins, Texarkana, for appellant. Lynn Cooksey, Crim. Dist. Atty., James N. Haltom, Hubbard, Patton, Peek, Haltom & Roberts, Texarkana, for appellee. RAY, Justice. This is an original habeas corpus proceeding brought pursuant to Art. 1824a, Vernon’s Annotated Civil Statutes, in which relator, Jerri Spencer, seeks release from the custody of the Sheriff of Bowie County, Texas. Contemporaneously with the granting of the writ of habeas corpus, we ordered relator released on bail pending determination of this proceeding. Relator was apparently held in constructive contempt of the 202nd Judicial District Court on March 22, 1974, for violating a previous judgment of that court ordering relator not to take her children from either Bowie County, Texas, or Miller County, Arkansas, for a period of time to exceed ten days without the express written permission of her former husband, Daniel Curtis. By verbal order of the court, relator was confined to jail until such time as relator returned her children from Dallas County to Bowie County. The law is so well settled in this state that it hardly needs citation, that a written order of commitment is an essential prerequisite to the imprisonment of a person for contempt, when the contemptuous act is committed outside the presence of the court in a situation such as exists in this case. In Ex Parte Martinex, 160 Tex. 328, 331 S.W.2d 209 (1960), Justice Green-hill stated for the court: “It is well settled by the decisions of this Court, as well as those of the Court of Criminal Appeals, that a person may not be imprisoned for contempt without a written order of commitment. Ex Parte Puckitt, Tex. [159 Tex. 438] 322 S.W.2d 597; Ex Parte Arapis, 157 Tex. 627, 306 S.W.2d 884; Ex Parte Smart, 152 Tex. 229, 256 S.W.2d 398; Ex Parte Palmateer, 150 Tex. 510, 243 S.W.2d 160; Ex Parte Eager, 128 Tex.Cr.R. 97, 79 S.W.2d 136; Ex Parte Ray, 101 Tex.Cr.R. 432, 276 S.W. 709; Ex Parte Alderete, 83 Tex.Cr.R. 358, 203 S.W. 763.” For a thorough discussion of these cases see 1 St. Mary’s Law Journal 1, (Spring, 1969), Habeas Corpus Proceedings in the Supreme Court of Texas, by Justice Joe Greenhill and Martin D. Beirne, Jr. Also, see 6 Texas Practice 431, Sec. 581, Contempt — Judgments and Enforcement. The record before us fails to show a written order of commitment issued by the District Court on March 22, 1974, the date that relator was confined to jail and the same day that we granted the writ of ha-beas corpus and ordered relator released on bail pending a hearing on the merits. An examination of the transcript reveals that the Judge of the 202nd District Court signed a judgment of contempt on March 29, 1974, which was filed by the Clerk on April 1, 1974, some ten days after relator had been verbally ordered confined. The order of commitment was also filed on April 1, 1974, which was just one day prior to the hearing on the merits of the writ of habeas corpus in this court. The application for writ of ha-beas corpus may commence the moment a party is illegally restrained, though the court may have contemnor detained by the sheriff or other peace officer for the short period of time it takes to prepare the judgment of contempt and order of commitment. The writ of habeas corpus is a prerogative writ designed to protect the individual against any character of illegal restraint and as such is regarded as the bulwark of human liberty. The writ is one of right designed to obtain a speedy adjudication of a prisoner’s right to release from an illegal imprisonment. The trial court has no authority to verbally order a person confined for contemptuous acts committed outside the presence of the court and thereafter take its good time in entering the contempt judgment and commitment order. Neither does the sheriff nor any other peace officer have the right to confine such person without a written commitment under the circumstances here presented. “A ‘commitment’ is a warrant, order or process by which a court or magistrate directs a ministerial officer to take a person to jail or to prison and to detain him there. * * * An arrest without a written commitment made for the purpose of enforcing a contempt judgment is an illegal restraint from which the prisoner is entitled to be relieved.” Ex Parte Puckitt, supra. Once the writ of habeas corpus was granted by this court and delivered to the restraining officer, the applicant was no longer held under the original commitment, but under the direction and authority of this court or the judge issuing the writ. Thereafter, no valid order could be entered in the matter by the court making the original commitment, since this court had obtained jurisdiction of the prisoner by proceedings in habeas corpus. The court which committed relator to prison for contempt by verbal order, could not after her release on bail in the habeas corpus proceedings and pending such proceedings in this court, require relator to purge herself of the contempt by a subsequently entered written order or judgment. To hold otherwise would allow the trial court to place a person in jail indefinitely without any method for the prisoner to obtain his release by purging himself of the contempt, and perhaps, without knowledge of why he was being held in contempt. Such proceedings would be in violation of due process. See Ex Parte Kearby, 35 Tex.Cr.R. 634, 34 S.W. 962 (1896). The relator is ordered discharged and she and her sureties are discharged from obligation under her bail bond.

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Toribio A. GARZA, Appellant, v. COMMERCIAL INSURANCE COMPANY OF NEWARK, NEW JERSEY, Appellee. No. 8463. Court of Civil Appeals of Texas, Amarillo. April 15, 1974. Rehearing Denied May 6, 1974. Edwards, Smith & Associates, Carson Smith, Amarillo, for appellant. Stokes, Carnahan & Fields, Richard E. Stokes, Jr., Amarillo, for appellee. REYNOLDS, Justice. In this workmen’s compensation proceeding, the workman challenges the jury verdict pursuant to which judgment was entered decreeing that he sustained total temporary incapacity for a period of one week. The question is whether, and we determine that, the jury’s findings of incapacity are supported by the evidence. Affirmed. Toribio A. Garza suffered an accidental injury to his back on February 4, 1972, while he was working for the Hereford Feed Yards. He was referred to Dr. Milton Stephens, Jr., who operated, removing a portion of a bulging disc, in April, 1972. Assigning Garza a ten to .fifteen percent disability from the injury and operation, Dr. Stephens gave Garza a release for full duty on August 31, 1972. Thereafter, while he was in the scope of his employment with Texsun Feedyards on November 30, 1972, Garza slipped and fell, suffering an injury or a re-injury to his back. Again being referred to Dr. Stephens, Garza saw, and was examined by, Dr. Stephens on December 7, 1972. Garza has performed no work since November 30, 1972. He testified that he never has been without pain since his previous injury in February, 1972, and that he felt he would never be able to again perform manual labor due to his back condition. According to Dr. Stephens, Garza did not give him any history of an accident during the December 7, 1972 examination, but Garza did state that his back hurt more than it had over the last several weeks. To Dr. Stephens, his examination revealed no objective change from his previous examination of Garza in August, 1972. From an objective standpoint, Dr. Stephens was unable to demonstrate any new injury or any evidence of any aggravation of an old condition or injury. In the doctor’s opinion, Garza is in about the same condition as he was in August, 1972. It was Dr. Stephens’ opinion, based upon a reasonable medical certainty, that any general disability to Garza’s back is solely the result of the February 4, 1972 accidental injury and the ensuing surgery. Agreeing that Garza was not without pain and that he has seen Garza at regular intervals since the December 7, 1972 examination when Garza comes to his office to get prescriptions refilled for a mild pain medication and a tranquilizer, Dr. Stephens stated he would, if requested by an employer, give Garza a pre-employment physical examination and pass him for full manual duty. Responsive to the submitted special issues, the jury found that Garza sustained bodily injury on November 30, 1972, while in the course of his employment for Tex-sun Feedyards, resulting in total temporary incapacity for one week that was not caused solely by the previous February 4, 1972 injury, and that there was no partial incapacity. Garza contends that the evidence is legally and factually insufficient to support the findings made by the jury respecting total and partial incapacity. His argument is that, his testimony and that of Dr. Stephens being totally contradictory, the evidence would have supported a jury finding of either no incapacity or substantial incapacity including total and permanent incapacity, depending upon the weight to be given the testimony of these two witnesses, but the evidence affords no basis for the incapacity findings the jury did make. It seems obvious that the jury believed Garza’s testimony of accident, injury and resulting total incapacity for the one week thereafter until he was examined by Dr. Stephens. It seems equally obvious that the jury disbelieved Garza’s testimony of continuing incapacity and accepted Dr. Stephens’ opinion testimony that his examination conducted a week following the injury revealed Garza had no incapacity resulting from his last injury. The jury was not bound to accept the testimony of Garza, an interested witness, at face value. Long v. Knox, 155 Tex. 581, 291 S.W.2d 292 (1956). It was the province of the jury, as the judge of the credibility of the witnesses and the weight to be given their testimony, to resolve the conflicts and inconsistencies in the testimony. Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561 (1952). Thus, the jury had the sole right, in weighing the testimony of Garza in the light of the other testimony, to believe that part of his testimony about his accidental injury on November 30, 1972, and his resulting total incapacity continuing for one week until December 7, 1972, when he was examined by Dr. Stephens, and to disbelieve that part of his testimony of incapacity thereafter. Consistent with the jury’s right, the court is not authorized to set aside the jury verdict because the jury may have drawn inferences and conclusions different from those it deemed most reasonable even though the record contains evidence of, or even gives equal support to, inconsistent inferences. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792 (1951). Considering the evidence in relation to Garza’s points of error under the principles collated in Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.R. 361 (1960), we find that there is some evidence of probative force to support the jury’s findings, and that the jury’s findings are not so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. The points of error are overruled. The judgment is affirmed.

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INSURANCE COMPANY OF NORTH AMERICA, Appellant, v. FIRE INSURANCE EXCHANGE et al., Appellees. No. 5324. Court of Civil Appeals of Texas, Waco. April 18, 1974. Rehearing Denied May 9, 1974. Thompson, Coe, Cousins, Irons & Porter, Larry L. Gollaher, Robert B. Cousins, Jr., Dallas, for appellant. Touchstone, Bernays & Johnson, Porter K. Johnston, Lancaster Smith, Dallas, for appellees. HALL, Justice. This is a venue matter. Gene Burks, dba Burks Barn, initiated this lawsuit against appellees, Fire Insur-anee Exchange and Carl Foote, in Rock-wall County. He alleged that he is the insured under a fire policy issued by Fire Insurance Exchange, and that as the result of the destruction of his place of business and its contents by fire on December 24, 1971, he is entitled to benefits under the policy totaling $100,000. Alternatively, he pleaded for recovery of that amount from Foote in the event the property was not covered by fire insurance, asserting that Foote agreed to keep the property insured and that lack of such protection would have been caused by Foote’s negligence. Alleging circumstances which we need not recite, appellees impleaded appellant, seeking contribution or indemnity if Burks should recover from them. Appellant interposed a plea of privilege to be sued in Dallas County, the County of its residence. The plea was controverted by appellees. After a trial without a jury, judgment was rendered overruling the plea of privilege. Among other grounds for maintaining venue in Rockwall County, appellees relied upon that portion of Subdivision 27 of Article 1995, Vernon’s Ann.Civ.St., which provides that foreign corporations doing business within this State may be sued in any county where such company has an agency or representative. In its only point of error relating to this ground, appellant asserts that appellees failed to prove that appellant is a foreign corporation. The record shows that, in response to requests for admissions under Rule 169, Vernon’s Texas Rules of Civil Procedure, appellant admitted it is a foreign corporation. Appellant says the admission was not before the court because it was never read into evidence or otherwise called to the court’s attention during the hearing. Without doubt, the better practice would have been to offer the admission into the factual record of the case. Nevertheless, the admission had been filed with the clerk and was a part of the record at the time of trial. It was properly considered. Pacific Finance Corp. v. Ramsey, (Tex.Civ.App., 1957, no writ hist.) 305 S. W.2d 297, 299. Moreover, in their controverting plea appellees alleged that appellant is a foreign corporation. This pleading has not been denied under oath. It is therefore deemed admitted. Rules 52 and 93(g), Vernon’s Tex.Rules Civ.Proc.; Beckham Development Co. v. Bruce Clark & Assoc., (Tex.Civ.App., 1973, no writ hist.) 492 S.W.2d 287, 290. The remaining grounds asserted by ap-pellees to defeat the plea of privilege are not supported by the record. The judgment is affirmed.

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STATE of Missouri, Respondent, v. Finis COLE, Jr., Appellant. No. 35173. Missouri Court of Appeals, St. Louis District, Division One. April 16, 1974. Clifford T. Proud, Proud & Nangle, St. Louis, for appellant. John C. Danforth, Atty. Gen., G. Michael O’Neal, William F. Arnet, Asst. At-tys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Richard G. Altobelli, Asst. Circuit Atty., St. Louis, for respondent. KELLY, Judge. Appellant was charged by Information in lieu of Indictment in two counts. In Count I with the offense of Assault with Intent to Kill with Malice Aforethought, Sec. 559.180, RSMo 1969, V.A.M.S., and Count II with the offense of Exhibiting a Dangerous and Deadly Weapon in a Rude, Angry and Threatening Manner, Sec. 564.-610, RSMo 1969, V.A.M.S. After a jury trial he was found guilty of Assault with Intent to Do Great Bodily Harm without Malice Aforethought under Count I and guilty as charged under Count II. After his motion for new trial, filed as to the verdict with respect to Count II only, was overruled, appellant filed a timely notice of appeal and on appeal presents two points as grounds for reversal of his conviction on Count II. Point one is that the evidence entitled him to a self-defense instruction and the failure of the trial court to submit self-defense to the jury on Count II constituted prejudicial error. Point two is that the State’s verdict directing instruction — Instruction No. 6 — with respect to the offense charged in Count II ignored his self-defense theory and was therefore prej-udicially erroneous. The evidence in the record reveals that these charges emanated from an incident which occurred at approximately 5 :45 p. m. on May 15, 1972, in the vicinity of 4522 Westminister Avenue in the City of St. Louis, Missouri, when two officers of the Metropolitan St. Louis Police Department, Officers Daniel Anthonis and Milford Trankler, apprehended a juvenile on suspicion of operating a stolen motor vehicle. Appellant, the juvenile’s uncle, and Officer Anthonis engaged in a scuffle which culminated in appellant astride the police officer with the officer’s gun in hand and threatening to shoot Officer Anthonis if Officer Trankler shot him. The trial judge concluded, as do we, that appellant was entitled to a self-defense submission with respect to the charge in Count I, to-wit: Assault with Intent to Kill with Malice Aforethought. We deem it unnecessary to discuss at length the evidence which supports this submission of self-defense. Suffice it to say that there was evidence from which the jury could have found that Officer Anthonis was the aggressor, that he pushed appellant three times and caused both of them to fall to the street. The jury could further have found that appellant seized Officer Anthonis’ pistol when it fell to the surface of the street during the scuffling, that he seized it only to protect himself from harm, and he pointed it at Officer Anthonis in an effort to restrain Officer Trankler from shooting him. If there is substantial evidence in a case involving a charge of exhibiting a dangerous and deadly weapon in a rude, angry and threatening manner that the defendant acted in self-defense, it is incumbent on the trial court to submit an instruction on that defense to the jury for their consideration in arriving at a verdict. State v. Arnett, 258 Mo. 253, 167 S.W. 526 (1914). Under the evidence peculiar to this case we hold that the appellant was entitled to an instruction submitting this defense. Respondent argues that there is no evidence to support such an instruction. It is difficult for us to conceive how, in a case of this kind, where the assault and the flourishing of the weapon are part and parcel of the same offense, flowing one into the other, if appellant was entitled to a self-defense instruction with respect to the assault charge, he was not entitled to a similar instruction with respect to the flourishing charge. Respondent’s argument is that appellant at the time he seized the gun was astride the police officer, that the gun was two feet from the combatants, and therefore he had no reasonable cause to believe that his life was endangered. We believe that a jury could reasonably conclude that unless appellant took control of the weapon which the police officer had commenced withdrawing from his holster he might reasonably fear for his life. The trial court did submit a self-defense instruction among those instructions directed to Count I of the information in lieu of indictment; each, except the self-defense submission, specifically referred to Count I. The self-defense instruction, while not specifying its applicability to Count I with the same specificity as to the others, made no reference to Count II whatsoever. The only instruction referring specifically to Count II was the state’s verdict-director on that Count, Instruction No. 6. The information in lieu of indictment filed in this case and on which the cause proceeded to trial alleged as to Count I that appellant assaulted Officer Anthonis “with his hands and feet, and a pistol, a means likely to produce death or great bodily harm.” The cause was, however, submitted to the jury as an assault by means of appellant’s “hands and feet.” Instruction No. 5 commenced : “One of the issues in this case is whether the assault on Daniel J. Anthonis was justifiable.” This obviously directed the jury that this instruction could be considered with reference to the charge in Count I of the petition and was not to be read in conjunction with the submission of Count II. That it was not meant to apply to Count II is also evident from the argument presented by the State in this court to the effect that appellant was not entitled to a self-defense instruction on Count II. A verdict-directing instruction which purports to cover the whole case, but which ignores the defense of self-defense, is erroneous if substantial evidence has been presented to support that theory and if the instruction as submitted requires no finding of fact which would negative self-defense. State v. Winn, 324 S.W.2d 637, 642[2, 3] (Mo.1959). An error of this nature cannot be cured by the giving of a separate self-defense instruction. State v. Clary, 350 S.W.2d 809, 813[5] (Mo.1961). Instruction No. 6, the verdict-directing instruction on Count II ignores appellant’s self-defense theory, and is, therefore, prej-udicially erroneous. For the error in failing to submit a self-defense instruction in Count II we reverse and remand for a new trial on that Count. The error in the verdict directing instruction’s failure to negate appellant’s self-defense theory on Count II will be avoided on retrial by following, with appropriate modification, MAI-CR 2.40, and MAI-CR 13.12 with an appropriate cross-reference to MAI-CR 2.40 therein. SIMEONE and WEIER, JJ., concur.

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STATE of Missouri, Plaintiff-Respondent, v. Rudolph HUDSON, Defendant-Appellant. No. 35091. Missouri Court of Appeals, St. Louis District, Division One. April 16, 1974. John E. Bell, James W. Huck, James C. Jones, Asst. Public Defenders, St. Louis, for defendant-appellant. John C. Danforth, Atty. Gen., G. Michael O’Neal, Karen I. Harper, Asst. At-tys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for plaintiff-respondent. WEIER, Judge. In a two count indictment, defendant was charged with the commission of two felonies: attempted robbery, first degree, and assault with intent to kill with malice aforethought. Since he had been charged under the Second Offender Act after verdicts of guilty on both counts, sentences of fifteen and forty years on each count respectively were imposed by the court to run concurrently. We first consider defendant’s contention that the court erred in failing to grant his motion for a judgment of acquittal on the charge of attempted robbery because the evidence presented did not support this charge. In support of this contention, defendant argues that the most that can be said of the evidence is that it shows that defendant was present immediately before the attempted robbery with no intention of participating in it. Considering the evidence which was submitted to the jury, we believe that the jury could have found and inferred that defendant and one Walter Quarrels approached a vending truck at about 11:00 p. m. on the evening of November 5, 1971, at North Market and Garrison in the City of St. Louis. Both bought sandwiches from an attendant in the truck and after making the purchases, they walked down the street for about a half block and then returned to the truck. When they returned, both had pistols in their hands. Quarrels said that he wanted to rob the truck. Defendant told Quarrels, in the presence of the attendant, that they shouldn’t do this and then walked out of sight of the truck attendant. About this time, the proprietor of a nearby tavern came to the truck to buy a sandwich. As he approached, he saw a man flourishing a pistol and went back to the tavern to notify one of his customers, an off-duty police officer, of the incident. The officer went outside and heard Quarrels tell the vending truck attendant to give him everything that he had. The police officer went up behind Quarrels, placed a gun at his back, and said: “Police Officer, give me the gun.” They began scuffling and the defendant came out from the rear of the truck and fired shots at the police officer, striking him in the head and in the mouth. The police officer fired back at the man and wounded him. Thereupon, Quarrels turned toward the officer and was fatally shot by the police officer. Under these facts, defendant’s activity at the scene of the crime was more than mere presence. He and Quarrels were together when they first approached the vending truck. They walked away together and returned, each armed with a pistol. In spite of his initial protestation concerning the robbery, the defendant remained close enough to the scene so as to be able to shoot the police officer twice when it became apparent that Quarrels was being taken into police custody for his criminal conduct. One who aids or encourages the commission of a crime and is present for that purpose is guilty as a principal in the first degree upon conviction. § 556.170, RSMo 1969, V.A.M.S.; State v. Murray, 445 S.W.2d 296, 298[3] (Mo. 1969). Presence, companionship and conduct before and after the offense are circumstances from which one’s participation in the criminal act may be inferred. Evidence which fairly shows any form of affirmative participation in a crime is sufficient to support the conviction. State v. Reed, 453 S.W.2d 946, 948 [3] (Mo.1970). Defendant also contends that the trial court erred in denying defendant’s motion for mistrial when it developed, after the jury was impaneled and sworn, that a juror notified the judge that she did not know whether or not she knew the police officer. She said that if she had known him it would have been when they were both teenagers. She stated that if it developed that this witness was the same person that she knew, she would be able to decide the facts of the case without reference to her acquaintance with the witness. During voir dire, the panel had been asked as to whether they knew the police officer, and no one had responded to this question at that time. The paramount consideration in incidents of this kind is whether or not the inaccurate statement was intentional. Where the juror obviously attempts to conceal the truth, prejudice to the defendant is more easily presumed. The determination of this question must be left to the sound discretion of the trial court. State v. Jackson, 412 S.W.2d 428, 432[1,2] (Mo. 1967). Here the trial court did not abuse its discretion in refusing to grant a new trial. The defendant’s third contention of error concerns the court’s denial of defendant’s motion to suppress the identification testimony of two witnesses. These witnesses were the proprietor of the tavern and the vending truck attendant. Citing the well known cases dealing with lineups and confrontations, commonly known as “the Wade trilogy”, and their progeny, defendant maintains that a confrontation in the hospital at which both the tavern proprietor and the vending truck attendant identified him as the person who earlier that same evening shot the police officer was so unnecessarily suggestive and conducive to irreparable mistaken identity that he was denied his right to due process of law secured by the fifth and fourteenth amendments. Before identification at the hospital, however, the tavern proprietor was questioned by police officers and gave a fairly detailed description of the clothes worn by the person who shot the officer and a general description of his facial features. He also revealed to the police that he thought that this person had been injured during the incident because he saw him flinch and grab his side when he ran behind the truck. The hospital identification occurred about fifteen or twenty minutes after the incident itself. In spite of initial reservation, he identified the person at the hospital as the person who shot the police officer. The vending truck attendant also gave the police a description of the defendant at the scene. Then within a short time at the hospital, he identified the defendant as the man whom he had seen shoot the officer. In evaluating the suggestiveness of a particular confrontation and the likelihood of misidentification, we look to factors such as the opportunity of the witness to view the accused at the time of the alleged crime, the accuracy of the witness’s prior description of the accused, the certainty of the witness at the confrontation, the length of time between the crime and the confrontation, and the need for police to determine at the earliest opportunity whether the person suspected is in fact the person sought. Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Stovall v. Denno, supra, 388 U.S., 1.c. 302, 87 S.Ct. 1967; State v. Townes, 461 S.W.2d 761, 763[1] (Mo.1970), cert, den. 407 U.S. 909, 92 S.Ct. 2445, 32 L.Ed. 2d 683 (1972). The testimony of the two witnesses indicated that their observation of the defendant during the attempted robbery was sufficient to enable them to give investigating police officers a reasonably accurate description of this person prior to the confrontation. The subsequent confrontation occurred within a very short time of the original observation by the witnesses of the incident and its participants. Despite the initial uncertainty of one witness, both witnesses were certain of their identifications at the time of the confrontation in the hospital. In addition, their subsequent in-court identifications of the defendant had sources of identification independent of the confrontation at the hospital. Such independent sources .of identification are enough to overcome any claim of unnecessary suggestiveness. State v. Jackson, 477 S.W.2d 47, 51 [4] (Mo.1972); State v. Walters, 457 S.W.2d 817, 822[5] (Mo.1970). The trial court properly overruled the defendant’s motion to suppress identification testimony and properly admitted the subsequent in-court identification testimony of the two witnesses. The final contention of error arises out of the refusal of the trial court to discharge the jury because of certain remarks of the prosecuting attorney which defendant declares amounted to a forbidden reference to defendant’s failure to testify in his own behalf. This occurred after the prosecuting attorney had stated to the jury that on the night of the attempted robbery there was only one man wearing a brown suit who sought medical help for a gunshot wound. Defendant’s attorney objected upon the ground that there was no evidence in the record indicating how many people had been treated for gunshot wound and was sustained. Thereupon the prosecuting attorney stated: “Had there been any such evidence the defense would have brought it to you. The defense was free under our rules they can bring anything they want.” Statements concerning the failure to present testimony made by a prosecuting attorney in argument neither violates defendant’s constitutional right against self-incrimination nor violates defendant’s right not to have the state make reference thereto, provided the reference in those statements is to the failure of the defense to offer evidence rather than a direct reference to the defendant’s own failure to testify. State v. Pruitt, 479 S.W.2d 785, 789[8] (Mo. banc 1972); State v. Hutchinson, 458 S.W.2d 553, 555[3] (Mo. banc 1970). The remarks of the prosecuting attorney here pointed out the failure of the defense to offer any evidence that on the night of the attempted robbery there existed someone other than the defendant who was wearing a brown suit and was seeking medical attention for a gunshot wound. This was directed to failure to offer evidence upon a specific issue and did not refer to defendant’s failure to testify. The state has filed a motion to remand for sentencing, contending that the imposition of concurrent sentences by the court is contrary to the terms of § 546.480, RSMo.1969, V.A.M.S. This section does not apply where the indictment or information is drawn in separate counts under the provisions of Rule 24.04, V.A.M.R. The motion is therefore denied. Judgment is affirmed. DOWD, C. J., and SIMEONE and KELLY, JJ., concur. . United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) ; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) ; Stovall v. Denno, 388 U.S. 293, 87 S.Ot. 1967, 18 L.Ed. 1199 (1967).

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Albert J. WILL, etc., et al., Plaintiffs-Respondents, v. CARONDELET SAVINGS & LOAN ASSOCIATION, etc., Defendant-Appellant, Maryland Casualty Company, Third Party Defendant-Respondent. Nos. 34894, 34895. Missouri Court of Appeals, St. Louis District, Division 1. April 16, 1974. Tralles, Hoffmeister & Gilpin, J. L. London, Amy G- Edwards, John C. Shepherd, St. Louis, for defendant-appellant Carondelet Savings & Loan Association. Moser, Marsalelc, Carpenter, Cleary, Jaeckel, Keaney & Brown and F. Douglas O’Leary, St. Louis, for third-party defendant-respondent, Maryland Casualty Co. James E. Crowe, St. Louis, Ruppert & Schlueter, Clayton, for plaintiffs-respondents. WEIER, Judge. These consolidated cases arise out of a dispute concerning the quality of workmanship in the construction of a building for Carondelet Savings and Loan Association in 1963. Defendant Carondelet Savings and Loan Association has appealed from money judgments entered against it in favor of plaintiffs Albert J. Will and Martin Korn. Defendant Carondelet also has appealed from judgments denying it relief on its counterclaims against plaintiffs Will and Korn and on its cross claims against Will and the Maryland Casualty Company, a third-party defendant. By written contract dated May 20, 1963, plaintiff Albert J. Will, a general contractor, agreed with defendant Carondelet to construct for it a new office building. Third-party defendant Maryland Casualty Company as surety and Albert J. Will as principal executed both a performance bond and labor and material payment bond in favor of Carondelet on the same day. Plaintiff Korn entered into a contract with plaintiff Will dated June S, 1963, wherein Korn agreed to furnish the material and labor for the brickwork in Carondelet’s new building. After the construction of the building was partially completed, a dispute arose concerning the quality of the workmanship. The president of Caronde-let, Roy L. Tarter, complained to plaintiff Will about the brickwork. Although the quality of the brickwork formed Caronde-let’s major complaint, Carondelet was also dissatisfied with several other aspects of the construction. In addition to the dispute about the workmanship, further discord arose between defendant Carondelet and plaintiffs Will and Korn concerning the authorization of certain additional items of construction not mentioned in either the contracts or the architect’s specifications. Defendant Carondelet refused to pay about “eleven or twelve thousand dollars” under the contract because it felt the quality of the workmanship was substandard. This litigation was commenced by the filing of various separate petitions in the circuit court of St. Louis County. The first petition, filed on November 5, 1964, involved a claim of one of the subcontractors, Lorain Engineering Company, against both Will and Carondelet. Also on November 5, 1964, the general contractor, Albert J. Will, filed his claim against Caron-delet for the sum of $11,653.65 plus interest. This sum included $6,598.75 for the brickwork done by the subcontractor Korn. The balance was for work done by Will and other subcontractors, including the Lorain Engineering Company. Plaintiff Korn filed his suit against Will, Maryland Casualty Company and Carondelet on December 1, 1964 for the sum of $6,598.75 plus interest. After responsive pleadings to the petitions were filed, plaintiff Will’s suit was consolidated on March 2, 1965 with the suit brought by plaintiff Korn. On March 4, 1968 the Maryland Casualty Company was included as a party defendant in the consolidated suit on the motion of defendant Carondelet. On December 8, 1970, after further responsive pleadings had been filed, all suits were consolidated for trial. The trial began on November 22, 1971 in the Equity Division of the circuit court of St. Louis County. Because of failure to prosecute, the claim of Lorain Engineering Company was dismissed. The court, after hearing the testimony of nine witnesses, and after considering numerous exhibits, entered judgment for plaintiffs Will and Korn against defendant Carondelet. Korn’s judgment was for $9,924.95 which included his claim of $6,598.75 plus interest in the amount of $3,326.20. Will received $7,606.19 which included interest in the sum of $2,549.29. The court also rendered judgment in favor of both plaintiffs and third-party defendant Maryland Casualty Company on Caron-delet’s counterclaims and cross claims. We first turn to defendant’s contention that the court erred in refusing to admit the testimony of two expert witnesses. These witnesses had been employed by defendant Carondelet to inspect and then give their opinion, in the case of an appraiser witness as to value and in the case of an engineer witness as to defects in the building. When each of the witnesses was called to the stand, after a few introductory questions, further testimony was objected to on the grounds that the defendant Carondelet failed to include the names of these witnesses in an answer to interrogatories, under the doctrine of Laws v. City of Wellston, 435 S.W.2d 370 (Mo.1968) holding that a party has a continuing duty to disclose the names of witnesses once an interrogatory has been filed requesting names and addresses of such persons. Ca-rondelet contends that since the witnesses here were experts and were employed to aid in the preparation of the case, their work constituted part of the work product in preparation for trial, and being privileged, it was not required to reveal their names. The work product itself is privileged, but such witnesses may be required to respond in discovery proceedings as to what they saw, what they did, and other matters of this nature. State ex rel. Missouri Public Service Co. v. Elliott, 434 S. W.2d 532, 537[7] (Mo. banc 1968); State ex rel. Uregas Service Co. v. Adams, 364 Mo. 389, 262 S.W.2d 9, 11 [2] (banc 1953). Where a party fails to disclose, in answers to interrogatories, the name of a witness, the testimony of that witness may be excluded by the trial court. Thomas v. Fitch, 435 S.W.2d 703, 707 [3] (Mo.App. 1968). This contention must therefore be ruled against defendant Carondelet. We now consider the sufficiency of the evidence to support the judgments since that appears to be the major issue the defendant sought to raise here. The court entered its judgment in favor of plaintiffs Will and Korn and against defendant Carondelet. The court also entered its judgment against Carondelet in favor of the Maryland Casualty Company. In view of the court’s findings and conclusions, objections to the sufficiency of the evidence to support these judgments could plausibly be objected to on two grounds: First, that certain “extras” not provided for under the contract between Will and Carondelet were not authorized; Second, that plaintiffs Will and Korn did not perform their work in a “good workmanlike manner”. One of the alleged grounds on which Carondelet based its refusal to pay the final claims of both plaintiffs Will and Korn was that those claims included items of unauthorized extra work. At the trial, the testimony concerning the authorization of extra work was in conflict, plaintiffs Will and Korn claiming that the extra work was in fact authorized, and the president of defendant Carondelet claiming that the extra work was unauthorized. Some of the exhibits received into evidence at the trial supported the testimony of plaintiffs Will and Korn. In any event, we cannot conclude that the trial court’s finding that all extra work was authorized was clearly erroneous since in reviewing a court-tried case we defer to the superior opportunity of the trial court to judge the credibility of the witnesses. Rule 73.01(d), V.A.M.R. As pointed out by the trial court, there is an additional reason why it could determine that the extra work was authorized. Plaintiff Will’s claim of $11,653.65 owed by Carondelet for the balance due on the construction of the building included original and extra work. Moreover, this claim included the amounts due plaintiff Korn and other subcontractors. Caronde-let, by its answer to interrogatories, signed by Mr. Tarter, admitted that it had not paid $12,135.21 under the original contract. Since by its own admission the amount held back by Carondelet under the original contract was greater than the amount claimed by plaintiff Will in the first place, Carondelet’s justification for nonpayment on the ground that certain extra work was unauthorized is without merit. Defendant’s major claim of poor or substandard workmanship concerned the brickwork which was done by plaintiff Korn. Defendant specifically objected to the size of the mortar joints, the color of the mortar used and the overall quality of the finished brickwork. Testimony at the trial revealed that, based on the plans and specifications prepared by the architect for Carondelet, James Wisnewski, plaintiff Korn estimated he would need between 22 and 23 thousand bricks to complete the job. Korn, however, used some of these bricks for “extra” work that had not been mentioned in the plans and specifications. As a result, Korn had to order more bricks. The available additional bricks were the same thickness and width as the other bricks, but were approximately one-quarter inch to three-eighths of an inch shorter in length. Because they were shorter in length than the other bricks used, the size of the end mortar joints was slightly larger than the size of the mortar joints where the original brick had been used. Of the 26,800 bricks used in the construction of the building, 2,800 were the smaller-sized bricks. Had it not been for the “extra” brickwork requested, there would have been enough bricks of the original size to complete the structure. The evidence adduced at the trial also revealed that plaintiff Korn used the type of cement for the mortar joints that was called for in the architect’s plans and specifications. As to the overall quality of the brickwork, several witnesses gave testimony at the trial. Among them were three expert witnesses, John Meyer, Bernard H. Poelker, and J. William Butcher. Testifying for plaintiff Korn, Mr. Meyer said it was his opinion that bricks in this construction job had been laid in a manner equal to bricks laid by a skilled bricklayer in the St. Louis County area. Mr. Poelker was a witness for defendant Carondelet. He testified that photographs of plaintiff Korn’s brickwork did not show “good workmanlike work on the bricks”. Mr. Butcher testified for third-party defendant Maryland Casualty Company. Although Mr. Butcher testified that in his opinion the workmanship involved in the bricklaying was not “good”, he admitted it was an “average job” for the St. Louis County area. In addition to the brickwork, Carondelet complained about cracks in the plaster and terrazzo floors, water seepage and col- or changes in the “marblecrete”. There is no question that the defects Carondelet complained of existed, but Carondelet presented no evidence that these defects occurred as a result of failure to follow the architect’s plans and specifications. Nor was any evidence offered by Caronde-let to show that the defects occurred as a result of any negligence on the part of the general contractor or any subcontractor. Indeed, the testimony of plaintiffs Will and Korn indicated that the plans and specifications were followed. “When the contract is to build a specified structure, according to another’s plans, of course, the contractor does not insure that such plans and specifications are sufficient to obtain the result sought, and he should be paid if he did what he agreed to do.” Sandy Hites Co. v. State Highway Commission, 347 Mo. 954, 149 S. W.2d 828, 833 [1] (1941). Since the assertion that the quality of workmanship was substandard was contained in defendant Carondelet’s counterclaim, the burden of proof was on defendant to show that the plaintiffs either did not follow the plans and specifications or that they were negligent in performing their work according to the plans and specifications. Defendant failed to meet this burden at the trial. The trial court was certainly entitled to believe the testimony that the brickwork was at least “average” in quality and we cannot conclude from the evidence that plaintiff Korn was negligent in performing the work he contracted to do. Based upon the testimony previously mentioned, we are unable to determine that the complaints about the brickwork were born out of the failure of Korn to follow the plans and specifications. Carondelet made no effort to show that the other defects it complained of were the result of either negligence or failure to follow the plans and specifications by the general contractor or any subcontractor. Absent such proof, the defects in the building may well have been occasioned by in-sufficiencies inherent in the plans and specifications themselves, although any attempt by us to determine fault here would be purely conj ectural. The trial court had evidence upon which it could base its judgment. And since the judgment of the trial court in this case is not clearly erroneous, it is affirmed. DOWD, C. J., and KELLY, J., concur.

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2024-08-24T03:29:51.129683

STATE of Missouri, Plaintiff-Respondent, v. Richard D. COX, Defendant-Appellant. No. 35290. Missouri Court of Appeals, St. Louis District, Division One. April 16, 1974. Clifford J. Proud, Nangle & Proud, St. Louis, for defendant-appellant. John C. Danforth, Atty. Gen., G. Michael O’Neal, Asst. Atty. Gen., Jefferson City, Gene McNary, Pros. Atty., Karl J. Keffler, Asst. Pros. Atty., Clayton, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for plaintiff-respondent. SIMEONE, Acting Chief Judge. Defendant-appellant Richard D. Cox was convicted of stealing property less than a value of $50.00 owned by Patrick Hanley of 852 Townhouse Avenue in St. Louis County. He was sentenced to serve one year in the St. Louis County jail. He appeals. We affirm. Taking the evidence in the light most favorable to the State, a jury could reasonably find the following. During the early morning hours of May 31, 1972, at about 4:50 a. m., at a time when it was getting light, Mr. John Throgmorton, who resides at 762 Lamplight Lane in St. Louis County, thought he heard a noise in his garage. He walked to the garage attached to his home and saw “someone coming down the street across my neighbor’s lawn.” At the closest point, this person was about seven feet away. He saw that the individual was wearing a “white sailor cap and a short blue or gray jacket.” He could not observe his facial features but could tell “he was white,” “young”, about 5'10" tall and weighed about 150 pounds. The person had a flashlight in his hand. The person walked across the street and “shined the light into a car sitting in a driveway.” At that point, Mr. Throgmorton called the County Police informing them that he observed a man near the “700 block of Lamplight wearing a sailor cap and a short blue or gray jacket.” Two County Police officers, Edward D. Speakman and Charles W. Stone, each operating his own vehicle went to the area of Lamplight and Townhouse Avenues. Officer Speakman was directed to 762 Lamplight by radio dispatch at about 5 :00 a. m. The dispatch indicated that a call had been received concerning a suspicious person with the above description. Officers Speakman and Stone arrived in the area about the same time. Speakman testified he “observed a subject (‘a white male, 5-9 or so, wearing blue jacket, blue trousers and a white sailor hat’) coming west on Lamplight.” When Officer Speakman saw him, the person was carrying a “large mass in front of him,” a “big bundle.” The individual was seen to run between two residences on Lamplight (about two blocks from Townhouse) and Officer Speakman started chase. When the person ran between the two houses, the officer lost sight of him. But the officer saw a “car stereo and some [two] speakers lying on the ground between halfway back of the residence and the back fence, and in the corner of the yard, I saw another pile of items including car stereos, clothing, stereo tapes and numerous other small articles. . . . ” The single car stereo was lying separate from the other items. At this point, Officer Speakman returned to his police car and put out a dispatch containing a description of the individual — -“between the ages of 18 to 20, 5-8 to 5-10, 130 to 140 pounds, I believe, wearing a blue jacket, blue pants and a white sailor hat.” Meanwhile, Officer Stone of the County Police Department saw “a young white male walking toward me,” wearing a “dark blue jacket, light blue or gray shirt, blue trousers and white sailor hat.” When about sixty feet apart, and while Stone was in his car, he saw the individual go between two houses on Lamplight and “as he got into the back yard he pitched the stuff up in the air and climbed over a fence.” After he climbed the fence, he disappeared. Stone requested the County Police to send the Identification Bureau and then went around the neighborhood in search of the individual. About two and a half or three blocks away Stone came in contact with the defendant, Cox, at De-Ville and Holliday Avenues in the custody of officers of the City of Hazelwood. Before Stone arrived at DeVille and Holliday, Patrolman Eugene L. Roessler of the Hazelwood Department received a radio dispatch that the County Police were looking for a “white male 18 to 20 years old, wearing a blue jacket and white sail- or’s hat.” Roessler observed an individual fitting this description at a point about six blocks from Townhouse and Lamplight. When the person in the sailor hat and blue jacket apparently saw the Roessler vehicle, he “began to take off running.” Officer Roessler gave chase for about two minutes and finally the person stopped. The individual chased (who turned out to be the defendant Cox) stopped at DeVille and Holliday and was apprehended by Roessler. During the chase, Roessler saw the man lose his white hat about a half block before he stopped. When apprehended, he was advised that he was under arrest, “fugitive St. Louis County.” Officer Roessler turned Cox over to Officer Stone who “picked him [the defendant] up off the ground after he was apprehended by the Hazelwood officer.” Stone returned with the defendant to the 762 Lamplight area where Officer Speakman was. Officer Speakman then informed defendant he was under arrest, advised him of his rights and asked whether he wished to waive them. “He [defendant-Cox] stated he did wish to give up the rights and would make a statement.” Speakman asked why he ran, and Cox replied he did not want to get caught. And when asked why he did not want “us to catch him,” he replied that “both he and a friend had been in the area since about 2 A.M. taking items from cars, taking items they could sell and get a little money.” Speakman also asked if the defendant could tell the officers where he took the items from. Cox replied he did not know but “he could show us.” The defendant then left in the company of Stone, while Speakman waited for the Identification Bureau. When the defendant and Stone left the location on Lamplight, they went to 852 Townhouse where a Chevrolet owned by Mr. Walter L. Hanley was located and there, according to Stone, “Defendant advised me that was one of the cars he had been removing items from during the night.” About 6:30 a. m. Mr. Walter L. Hanley of 852 Townhouse awakened and noticed that the driver’s door of the 1964 Chevrolet owned by him but normally driven by his son Patrick, was standing open. He awakened Patrick and they went to investigate. The vent window was forced open and the stereo and two tapes from the glove compartment were missing. Mr. Hanley called the County Police. The stereo had been purchased by Patrick on March 24 for $69.95. The tapes had cost $10.00. The stereo was eventually returned to Patrick. Eventually on July 10, 1972, an information was filed charging defendant Cox with stealing over $50.00. Defendant was arraigned, an amended information was filed, and on January 17 and 18, 1973, trial was held. At trial Patrick identified the stereo by matching the serial number on the stereo and the one in his receipt book. Officer Speakman also identified the stereo as the one found on the ground on the night of May 31, as it had the same serial number. The defendant at trial testified in his own behalf. He testified that he was arrested at the corner of DeVille and Holli-day at about “quarter to seven.” He said he had spent the night at a friend’s — Mat Conely’s — house, and the place where the police saw him was on the way to his house at 719 Lynnhaven Avenue in Hazel-wood. At the time of trial, Conely was in the service in Munich, Germany. On that morning he was wearing a blue jacket, over a green jacket, a yellow and black shirt with white checks, gray pants, black belt and brown shoes, but he was not wearing a sailor’s hat. When he saw the police, he ran because “every time they see any of us young men out there they stop us, ask us questions, and sometimes they’ll take us in.” He said that between January and May he had been arrested “for twenty hours 58 times.” When arrested, he did not answer any questions and denied he was advised of his constitutional rights. At the conclusion of the evidence, the court gave among others Instruction No. 3 which informed the jury that if they did not find defendant guilty of stealing over $50.00, but if they find that defendant stole property of a value of less than $50.-00, they should assess punishment in the County Jail for not more than one year or fine of not more than $1,000.00, or both. The court also gave Instruction No. 7 which informed the jury that the State has the burden to prove that the defendant was present at the time and place of the offense and if from all the evidence or lack thereof, there is left a reasonable doubt regarding the defendant’s presence at the time and place of the offense, the jury should acquit. The jury found the defendant guilty of stealing property “under the value of $50.00” and assessed his punishment at imprisonment in the County Jail for one year. After motion for new trial was overruled, and allocution given, defendant was sentenced. On this appeal the defendant contends the trial court erred: (1) in overruling defendant’s motion for judgment of acquittal made at the close of the State’s case and at the close of the evidence since there was no direct evidence pointing to defendant’s guilt; (2) (a) in overruling defendant’s objection to the alleged admissions made by defendant which related to crimes other than the one for which he was charged, (b) in admitting police testimony as to the fruits of other unrelated crimes, and (c) in overruling his motion for mistrial; (3) iri giving Instruction No. 3 relating to stealing under $50.00 since there was no evi-dentiary support for the instruction; and (4) in not instructing the jury concerning the defendant’s alibi. The appellant urges that no testimony was provided by the state that placed Cox at the scene of the alleged crime or at the locations where the witnesses allegedly observed a suspect in possession of a bundle or object. The witnesses, he says, could not identify Cox as the suspect they saw on that morning of May 31, 1973. He argues that Patrick Hanley stated that his speakers were never stolen, and the speakers found on the ground with the stereo were not admitted into evidence. He also argues that no officer testified as to any markings on the stereo, nor were the stolen tapes introduced into evidence. From this he concludes that the circumstantial evidence was insufficient to submit the case to the jury or to sustain a conviction; hence it was error to overrule the motions for judgment of acquittal. Direct evidence is not necessary to make a submissible case. Circumstantial evidence is sufficient, but in order to sustain a conviction based on circumstantial evidence, the facts and circumstances must not only be consistent with each other and be consistent with the hypothesis of the defendant’s guilt and inconsistent with innocence, but the circumstances must point satisfactorily to guilt so as to exclude every other reasonable hypothesis of innocence. State v. Burnley, 480 S.W.2d 881 (Mo. 1972); State v. Walker, 365 S.W.2d 597, 601 (Mo. 1963). Evidence that an accused had an opportunity to commit an offense, or evidence which merely raises a suspicion is an insufficient basis for a conviction. Mere presence of an accused at the commission of a felony is insufficient, and while flight is a circumstance to be considered against an accused, in connection with other evidence flight alone is insufficient to sustain a conviction. Our function is not to substitute our judgment for that of the jury; it is to determine whether there was sufficient evidence to submit the issue to the jury. We believe that there was substantial circumstantial evidence in this case to sustain the conviction and the court did not err in overruling the motions for judgment of acquittal. All the witnesses testified that a young man, white, wearing a white sailor cap and a short blue or gray jacket, was in and about the neighborhood. Mr. Throgmorton identified the clothing; the officers saw the person wearing such clothing carrying a bundle, running between two houses, and throwing things down, one of which was the stereo identified by Officer Speakman; the Hazelwood officer chased a young man in the same clothing, saw him lose his white sailor hat, and finally caught up with the defendant; the defendant, after being warned of his rights, made a statement and showed Officer Stone the Hanley vehicle where he said he took a stereo. Taking this and other evidence, we believe that the circumstantial evidence was sufficient to submit the case to the jury. The cases cited by the appellant, State v. Keller, 471 S.W.2d 196 (Mo.1971); State v. Brown, 462 S.W.2d 766 (Mo.1971); State v. Irby, 423 S.W.2d 800 (Mo.1968) and State v. Walker, supra, are distinguishable and not dispositive of the issues here. For example, in State v. Keller, supra, some thirty hours after an attempt to carry away hogs, defendant was in company of one of the participants who stole the hogs. The evidence showed that the defendant did not fit the description of the companion who escaped. The only proof was that there were suspicious circumstances and association with an implicated person some thirty hours after the crime occurred. Under these circumstances, our Supreme Court held that the circumstantial evidence was insufficient to make a submissible case. Appellant argues that the stereo was not properly identified because “no police officer testified as to any markings placed on [the] stereo.” But Patrick Han-ley identified the serial numbers on the stereo introduced from his receipt, and Officer Speakman identified the stereo as the stereo he saw at the scene. Appellant’s next complaint is that it was error to permit Officer Speakman to testify that the defendant stated to him, “both he and a friend had been in the area since 2 A.M. taking items from cars, taking items they could sell and get a little money.” He also contends, apparently, that it was error to permit police testimony relating to the “fruits” of other unrelated crimes, i. e., testimony that they saw other stereos, clothing, tapes and other articles. These matters, he argues, relate to crimes other than the one for which he was charged. The trial court ruled that the admission by the defendant was “properly received under one of several theories, including the theory of res gestae. . . . ” Defendant relies in his argument on the general rule that evidence of other crimes is improper and he relies also on the rule that if the statement by the defendant is part of the “res gestae,” the statement could be introduced; but to be part of the “res gestae,” he contends the statements would have had to be made immediately prior to, during or after the commission of the crime and would have to have been of a spontaneous nature. He relies on State v. Pflugradt, 463 S.W.2d 566 (Mo.App. 1971), “one of the leading cases in Missouri on res gestae” which he states held that “statements of an accused at the time of his arrest are admissible as a part of the res gestae when the arrest was made closely enough to the commission of the offense that the statements were made while the mind was still acting under the exciting cause of the occurrence.” Since in this case defendant had time to reorder his thoughts while he was being transported by Officer Stone back to Officer Speakman, his statements, he contends, could not he part of the res gestae. Pflugradt involved a case in which the defendant was charged with assault. Defendant complained because the trial court did not admit his self-serving statement, which indicated he did not commit an assault but rather was aiding the victim. The statement was allegedly made sometime after the event. The Kansas City District, in a comprehensive opinion by Shangler, J., held that the court did not err in refusing to receive in evidence the self-serving statement. Pflugradt dealt with the question of whether the statement should be admitted under the “excited utterance or spontaneous declaration” exception to the hearsay rule, sometimes referred to as “res gestae.” “Spontaneous utterances which qualify under the res gestae rule are admissible. . And statements of an accused at the time of his arrest are admissible as part of the res gestae when the arrest was made closely enough to the commission of the offense that the statements were made while the mind was still acting under the exciting cause of the occurrence.” 463 S. W.2d at 572. We do not deal here, however, with an excited utterance, but rather with a question of relevancy, i. e. whether the admission of the defendant and testimony of officers tend to prove the commission of the crime for which defendant is charged and the question whether the reference to “other offenses” is admissible under the facts of this case. It is to be noted that the trial court ruled that the admission was properly received under one of several theories, including the theory of “res gestae”, and not merely on the ground of “res gestae” as contended by appellant. There is no question that the well-established rule is that evidence of the commission of separate and distinct crimes is not admissible unless the evidence has some tendency to directly establish the guilt of the charge for which the defendant is on trial. The well recognized exceptions are that evidence of other crimes is competent to prove the specific crime when it tends to establish motive, or intent, or absence of mistake or accident, or a common scheme or plan embracing the commission of two or more crimes so related that proof of one tends to establish the other or identity of the person charged. State v. Reese, 364 Mo. 1221, 274 S.W.2d 304 (banc 1954); State v. Wing, 455 S.W. 2d 457, 464 (Mo.1970). And another well-recognized rule relating to the admission of other crimes is that where the circumstances are such as to constitute one continuous transaction in the accomplishment of a common design and the crimes are concurrent so that the proof of one cannot be made without a showing of the facts tending to establish the other, the entire facts may be admissible since they are regarded as part of the “res gestae” and therefore all the facts may be admitted. In such circumstances the state is not required to nicely sift and separate the evidence and exclude the testimony tending to prove the crime for which the accused is not on trial when it forms a part of the “res gestae” of the crime charged. State v. Sinovich, 329 Mo. 909, 46 S.W.2d 877 (Mo.1931)— robbery and kidnapping; State v. Shumate, 478 S.W.2d 328, 330 (Mo.1972)—sodomy and rape; State v. Robb, 439 S.W.2d 510, 514 (Mo. 1969). This concept of “res gestae” is altogether different than “res gestae” in the sense of an excited utterance. We believe that the court did not err in permitting the admission of the defendant’s statement or the testimony of the officers relating to other items for the reason that despite the general principle that proof of the commission of separate offenses is not admissible, the evidence here was admissible under the exception to show a common scheme or plan of the defendant to steal the other items and furthermore was admissible to show identity of the defendant. The person wearing the described clothing was seen throwing away various items; the defendant was described as wearing the same or similar clothing, was chased by the Hazelwood police, and when returned to Officer Speakman, the defendant told him that he had been taking items from cars to get a little money. All of this evidence tends to show a common scheme to take items from vehicles and tends to show the identity of the defendant as the person who rid himself of the various items and as the person who stole the items. The evidence also may have been admissible as a part of the res gestae in the sense of a continuous transaction in the accomplishment of a common design, but we need not decide that issue since we believe the statement and evidence were properly admitted as exceptions to the “other crimes rule” to show a common scheme or plan of the defendant and to show identity of the defendant as the person who committed the theft. We hold that the trial court therefore did not err in concluding that the evidence was admitted under one of several theories including the theory of “res gestae” in the second sense as used above. As long as the evidence was admissible under any theory there can be no error. State v. Mayberry, 272 S.W.2d 236 [4] (Mo.1954); State v. Garton, 371 S.W.2d 283 [7] (Mo.1963). The court did not err in overruling the objection to the introduction of the admission against interest and other testimony nor in overruling the appellant’s motion for mistrial. Appellant next complains that it was error to give Instruction No. 3 which authorized the jury to find the defendant guilty of stealing less than $50.00 because there was no evidentiary support for the submission. We disagree. When a request is made for an instruction on stealing under $50.00 and all the evidence tends to prove that the property is over the value of $50.00, there is no error in refusing to so instruct. State v. Brewer, 338 S.W.2d 863, 868 (Mo.1960); State v. Craig, 433 S.W.2d 811 (Mo.1968). When the evidence shows that a defendant may be guilty of the greater offense, he is not entitled to an instruction on the lesser degree. But if such instruction be given, it is merely error in his favor. State v. Kimbrough, 350 Mo. 609, 166 S.W.2d 1077, 1082 (1942). The defendant cannot complain of the giving of an instruction on a lesser grade of an offense although the evidence tends tó show guilt, if at all, of a higher grade. State v. Parker, 321 Mo. 553, 12 S.W.2d 428 (1928). Here, the evidence shows that the stereo was purchased some three months prior to the loss for $69.95. Since the stereo was some three months old, the jury was entitled to consider whether the stereo had depreciated to an amount less than $50.00; hence the court properly gave Instruction No. 3 on the lesser included offense. In this posture, and in view of the fact that the defendant cannot complain, we believe the trial court did not err in giving Instruction No. 3. Finally, defendant complains that he is entitled to an instruction on alibi. Failure to give an alibi instruction where alibi is a defense is error. State v. Slay, 406 S.W.2d 575, 579 (Mo. 1966). But the trial court in this case gave an alibi instruction — Instruction No. 7 — which told the jury that the State had the burden to prove that the defendant was present at the time and place of the alleged offense, and if all the evidence, or any lack of evidence, leaves a reasonable doubt, the defendant should be acquitted. This instruction is almost identical to MAI-CR 3.20 on alibi. This point of defendant’s is without merit. In the decisions relied upon by defendant which are not dispositive of this case, no alibi instructions were given. Finding no prejudicial error, the judgment is affirmed. WEIER and KELLY, JJ., concur. . This admission was not objected to at the time Speakman testified, but following his direct testimony, counsel objected, stating, “I think those admissions are not relevant to the theft of this stereo with which Hr. Cox is charged. I’ll ask for a mistrial on that basis. . . . Nothing that officer just testified to had to do with the theft of this stereo. He’s bringing in evidence of other crimes. It is highly prejudicial.” The objection was later overruled, the court stating the evidence was “properly received under one of several theories, including the theory of res gestae. . “INSTRUCTION NO. S. If you find and believe from the evidence that the defendant is not guilty of Stealing Property Over The Value of $50.00, as defined and explained to you in the preceding Instruction No. 2, but, if you further find and believe from the evidence beyond a reasonable doubt, that on the 31st day of May, 1972, the defendant did wilfully, unlawfully take, steal and carry away from an automobile owned by Walter Leo Hanley, a stereo tape player, the property of his son, Patrick D. Hanley, to-wit: one car stereo, CMC, model 5000, and if you further find and believe from the evidence beyond a reasonable doubt that the said property was the property of the said Patrick D. Hanley, and if you further find and believe from the evidence beyond a reasonable doubt that said property was of the value of less than $50.00, then you will find the defendant guilty of Stealing Property Under The Value of $50.00, and you will assess his punishment at imprisonment in the County Jail for not more than one year or by a fine of not more than $1,000.00; or by both such fine and imprisonment. Unless you so find the facts to be, you will acquit the defendant.” . “INSTRUCTION NO. 7. One of the issues in this case on which the State has the burden of proof is whether the defendant was present at the time and place the offense is alleged to have been committed. If all of the evidence, or any lack of evidence, in this case, leaves in your mind a reasonable doubt regarding the defendant’s presence at the time and place the offense is alleged to have been committed, then you must find him not guilty. . “[I]t does not follow that because a defendant is not entitled to such an instruction that it is error of which he can complain when the court does so instruct. ... § 3952, R.S. ’39 and Mo.R.S.A., [§ 545.030(17)] provides that no judgment shall be affected ‘because the evidence shows or tends to show him [the defendant] to be guilty of a higher degree of the offense than that of which he is convicted.’ The statute thus validates a conviction for a lesser degree of the crime when all the evidence shows he is guilty of the greater, and it has been uniformly construed as extending to the giving of instructions authorizing convictions for lesser included offenses in such circumstances.” State v. Gardner, 356 Mo. 1015, 1017, 204 S.W.2d 716, 717 (1947).

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2024-08-24T03:29:51.129235

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CITY OF NORTHFIELD, Appellant, v. HOLIDAY MANOR, INC., et al., Appellees. Court of Appeals of Kentucky. May 3, 1974. Foster L. Haunz, Dougherty, Gray & Haunz, Louisville, for appellant. Kenneth J. Tuggle, Joseph B. Helm, Mark Davis, Jr., Brown, Todd & Heyburn, John G. Carroll, J. Bruce Miller, Louisville, for appellees. CATINNA, Commissioner. Northfield, a sixth-class city in Jefferson County, adopted an ordinance for annexation of territory consisting of a residential area, an undeveloped area, and a commercial area. Five of the property owners located in the commercial area and the owner of 6½ acres of the undeveloped area, being less than 10% of the freeholders in the territory proposed to be annexed, filed a remonstrance suit attacking the annexation. The trial court entered a summary judgment declaring the annexation void, and an appeal to this court followed. By our opinion of March 31, 1972, we reversed the trial court and remanded the case for further proceedings. City of Northfield <v. Holiday Manor, Inc., Ky., 479 S.W.2d 596 (1972). Upon retrial, the parties stipulated: “ * * * there are less than 75% of the freeholders as defined by Law under the Statutes remonstrating. “We further have stipulated that the issue before the court on this trial is under the Statute, KRS 81.110(2), and the first sentence, ‘the issue of whether the adding of the territory will be for the interest of the city and will cause no manifest injury to the persons owning real estate in the territory sought to be annexed.’ ” Northfield, prior to the annexation ordinance, consisted primarily of a residential area of 133 acres. Included in the area to be annexed were Wynnewood Subdivision where some 55 families resided, a commercial area consisting of some 26 acres, and an undeveloped area of 59.4 acres. The trial court made extensive findings of fact and rulings of law, and a judgment was entered invalidating the ordinance of annexation, from which judgment North-field prosecutes this appeal. The findings of fact involved a calculation of the percentages of the values of the property owned by the remonstrants in relation to that of all the owners and the area of the remonstrants’ property in relation to the total area involved. The court found that insofar as the commercial area was concerned the only benefit that it would receive from the annexation, in return for taxes paid, would presently be some additional police protection. The city did not intend to assume the obligation of parking-lot construction, lighting, and maintenance; and curb and gutter construction and maintenance within the area of the shopping center. Nor did the city intend to assume the obligation of free garbage collection for the commercial area, although the court found that such benefit would be extended to Wynnewood and the undeveloped area. The conclusions of law reached by the court included the following: “7. Northfield will extend to Wynne-wood supplemental police protection, garbage collection service, street lighting and maintenance. Northfield will receive from Wynnewood sufficient additional tax revenue to meet the increased costs of such extension. Therefore, with respect to Wynnewood, the annexation will be for the interest of the City and will cause no manifest injury to the persons owning real estate in Wynnewood. Northfield will not extend to the commercial area the services mentioned here-inabove. Further, Northfield will extend to the undeveloped area only garbage collection service out of the services mentioned herein above. In the latter two cases, Northfield taxation and regulation constitute burdens in substantial excess over Northfield benefits because, in the latter two cases, Northfield will not provide the standard benefits of municipal incorporation. Therefore, with respect to the commercial and the undeveloped areas, although annexation will be for the interest of the City, annexation will also cause manifest injury to the persons owning real estate in the commercial and undeveloped areas. “8. As a matter of law, the Court has concluded that annexation will not cause manifest injury to the persons owning real property in Wynnewood, but that annexation will cause manifest injury to the persons owning real property in the commercial and undeveloped areas. As these latter persons own property comprising 65.9% of the assessed valuation of, and 76.65'% of the acreage of, the annexation area, manifest injury to these property owners constitutes manifest injury to the annexation area’s property owners as a class. See Masonic Widows and Orphans Home v. City of Louisville, supra. And, as an annexation statute must stand or fall as a whole, City of Prestonsburg v. Conn., supra, [Ky. 317 S.W.2d 484,] under the Court’s findings of fact and conclusions of law, Northfield Ordinance 70-4 must fall. In so holding, this Court notes that, but for the mandate against piecemeal annexation in City of Prestonsburg v. Conn., supra, the commercial area, and probably the undeveloped area, are sufficiently separate and distinct as units from Northfield and Wynnewood to suggest declaring the annexation ordinance effectual only as to Wynnewood but not as to the commercial and undeveloped areas. See Sullivan v. City of Louisville, [295 Ky. 68,] 173 S.W.2d 981 (1943).” In reviewing these two conclusions, it is noted that the court held as a matter of law that the annexation of the area would be to the interest of the City of Northfield, leaving then only the question of whether the annexation would cause manifest injury to the “persons owning real estate in the territory sought to be annexed * * *.” KRS 81.110(2). The first sentence of Conclusion No. 8 constitutes an erroneous application of the law governing the annexation of the territory. The court, although holding as a matter of law that the annexation would not cause manifest injury to the persons owning property in Wynnewood, held that it would cause manifest injury to persons owning real estate in the commercial and undeveloped areas. The court then reasoned that because the commercial area owned by the remonstrants comprised 65.-9% of the assessed value and 76.65% of the area of the territory to be annexed, there was manifest injury to the property owners as a class. The manifest injury to persons owning real estate in an area sought to be annexed is defined as meaning “not some injury to some of such property holders by the annexation, but manifest injury to the property holders as a class or the majority of them.” City of Louisville v. Sullivan, 302 Ky. 86, 193 S. W.2d 1017 (1946.) We have never conceived the fact that a majority within an area proposed to be annexed could be determined by a percentage relationship of values or areas owned by parties in the annexed territory. The statute speaks of freeholders and requires a remonstrance by freeholders in the territory, yet in the same section requires a finding of manifest injury to the persons owning real estate in the territory. A freeholder is defined as one holding a title to real estate and the amount of value of his interest therein is immaterial. State v. City of Fraser, 191 Minn. 427, 254 N.W. 776 (1934). See In re Borough of Phoe-nixville, etc., 218 Pa.Super. 205, 275 A.2d 863 (1971). In that case the question of a freeholder and an owner was discussed at some length insofar as it affected an annexation proceeding. The court therein defined a freeholder as one who has the actual possession of land for life or a greater estate. However, the court further stated that owner' and freeholder were not synonymous in those cases where property was held by a husband and wife as tenants by the entireties, each of them owning at least a life estate and each therefore being a freeholder, but as a conveyance of the property required the signatures of both the husband and wife, the two of them together constituted the owners of the property. Applying the rule as to freeholders and owners as above set out, we find from the record that there were at least 108 freeholders or 54 owners in the Wynnewood Subdivision. There were also nine property owners in the commercial area who did not protest and five property owners in the undeveloped area who did not protest, and of this number the court found that not less than 54 owners, and apparently more, did not suffer manifest injury as a result of the annexation. Consequently, the manifest injury sustained in the area sought to be annexed was not sustained by the property holders as a class or a majority of them. In Masonic Widow & Orphans Home v. City of Louisville, 309 Ky. 532, 217 S.W.2d 815 (1948), the term manifest injury is declared to mean “the clear and obvious imposition of material or substantial burdens upon the owners of the property as a class or the majority of them.” In Mitchell v. Central City, Ky., 354 S.W.2d 281 (1962), we said: “The rule is that the question of material injury is to be determined from the standpoint of the property holders as a class or the majority of them, and not with reference to individual owners. * * *. The view to be taken is of the entire area and not the separate parcels of real estate in isolation.” The trial court made an effort to weigh the substantiality of the benefits to be received by the commercial area in comparison with the taxes which would be collected. The levy of taxes alone does not constitute a manifest injury. City of Northfield v. Holiday Manor, Ky., 479 S. W.2d 596 (1972). We do not think that it is within the province of this court to usurp the legislative authority of a city in an effort to delineate benefits and injuries arising from an annexation. We do not find here any clear and obvious imposition of material and substantial burdens. There is no place in the record before us which includes a finding that annexation of the territory in question will impose such uncompensated burdens upon the property owners as a class, and not merely the owners of commercial property, as to be grievous, wearisome, and oppressive. Accordingly, it is our opinion that the trial court should have entered a judgment approving the annexation. Cf. City of Louisville v. Kraft, Ky., 297 S.W.2d 39 (1956). The judgment is reversed with directions that a new judgment be entered approving the annexation. All concur.

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2024-08-24T03:29:51.129683

Hillard HENSLEY, Appellant, v. PAUL MILLER FORD, INC., Appellee. Court of Appeals of Kentucky. May 3, 1974. George M. Combs, Lexington, for appellant. Harry B. Miller, Miller, Griffin & Marks, Lexington, for appellee. GARDNER, Commissioner. Hillard Hensley purchased from Paul Miller Ford a 1969 Mustang Mach I, subject to his obtaining a loan. As part of the consideration Hensley was to trade in his 1966 Cyclone GT. The Cyclone was registered in the name of Geneva Turner, Hensley’s mother, because Hensley was only 19 years of age. The contract with Ford, complete on its face, was signed “Geneva Turner by Hillard Hensley.” According to Hensley he left his Cyclone on Ford’s parking lot while he and his mother went to Monarch Investment Company to see about financing the balance owed. He was unsuccessful and when he returned to Ford’s parking lot about two hours later he discovered that his car was missing. Hensley testified that his conversation with the salesman was as follows: “ ‘Where’s my Cyclone, and I’ll just find somewheres else to trade. I just won’t trade.’ So, he said, ‘We’ve already sold it.’ I said, What do you mean?’ And he said, Well, I thought you all was going to buy it and Monarch told me that they would finance the whole complete deal.’ So, he gets on the phone with Monarch, and I don’t know what he says cause he’s in the other room, and he came back out and said, ‘Go on and take the car.’ He said, ‘I’m going to get you the other $400.00 at another finance company.’ I told him I didn’t know about that. And then I said, ‘Where’s my property out of my Cyclone ?’ My Mag tires . . . my Mag wheels and my tires was not to be traded; my stereo and my tapes and my tools was not to be traded. It was to come out of the car when I when he appraised the car. He appraised the car with that stuff off of it.” Hensley also testified that about two weeks earlier his negotiations with Ford for a more expensive car failed to materialize because he was unable to obtain a loan. Ford’s relation of the happenings varies in some respects from Hensley’s, one of which was that Ford insisted that the personal property in Hensley’s car was to become Ford’s property. However, Ford promised to retrieve the personal property and urged Hensley to use the Mach I, which Hensley did, because, as he said, he needed it to drive to work. Ford contacted Hensley several times to obtain a bill of sale but Hensley failed to produce the papers. After a couple of weeks the would-be purchaser of Hensley’s car returned it to Ford in a damaged condition and with the personal property missing. Hensley used the Mach I for a few weeks when Ford “repossessed” it while it was in the parking lot where Hensley worked. A suit instituted by Hensley against Ford resulted in a jury verdict and judgment in favor of Hensley for $22,102.85, of which amount $2,102.85 was for compensatory damages and $20,000 was for punitive damages. Subsequently the trial court sustained Ford’s motion for a judgment notwithstanding the verdict as-to the award of $20,000 for punitive damages, but conditionally granted Ford’s motion for a new trial pursuant to CR 50.03 in the event the judgment notwithstanding the verdict was later reversed. The trial court was of the opinion that the evidence fell short of the requirements necessary to sustain a judgment for punitive damages, but that if he was in error and the judgment was reversed, a new trial should be granted because the verdict of $20,000 for punitive damages was excessive. We believe the trial court was in error in deciding as a matter of law that Hensley was not entitled to recover punitive damages. Just what elements are necessary in determining whether damages should be awarded are not well established. The very nature of the wrong seems to defy a precise explanation. We have said in Ashland Dry Goods Co. v. Wages, 302 Ky. 577, 195 S.W.2d 312, 315 (1946): “Punitive damages are damages other than compensatory or nominal damages, awarded against a person to punish him for his outrageous conduct. The purpose of awarding punitive damages, sometimes called ‘smart money’, is to punish the person doing the wrongful act and to discourage such person and others from similar conduct in the future. Such damages are proper only when the wrongful act is wanton, malicious, or reckless. There must be a showing that the acts were either willful or malicious or that they were performed in such a way as would indicate a gross neglect or disregard for the rights of the person wronged.” -In accord are Bisset v. Goss, Ky., 481 S. W.2d 71 (1972), and Louisville & N. R. Co. v. Jones’ Adm’r., 297 Ky. 528, 180 S. W.2d 555 (1944). In 22 Am.Jur.2d, Damages § 251, pp. 343 et seq., it is written: “Accordingly, it is the general rule that exemplary damages are not recoverable for mere negligence or for a mere omission of duty unless a statute so provides. If, however, the injury complained of is the result of the defendant’s gross negligence or his recklessness, most authorities permit the recovery of exemplary damages.” The rule is a bit more limited in Prosser, Law of Torts 4th Ed., § 2, page 9, where it is said: “Where the defendant’s wrongdoing has been intentional and deliberate, and has the character of outrage frequently associated with crime, all but a few courts have permitted the jury to award in the tort action ‘punitive’ or ‘exemplary’ damages, or what is sometimes called ‘smart money.’ Such damages are given to the plaintiff over and above the full compensation for his injuries, for the purpose of punishing the defendant, of teaching him not to do it again, and of deterring others from following his example.” In any event, there must be more than a wrong resulting in damages. In the present case there is no contention that Ford intended to harm Hensley. We believe the case should be decided in the light of Ashland Dry Goods Co. v. Wages, supra, that is, whether Ford’s acts were performed in such a way as to indicate a gross neglect or disregard of the rights of Hensley. Considering the evidence most favorably to Hensley, which must be done upon the motion for a judgment notwithstanding the verdict (Sutton v. Combs, Ky., 419 S.W.2d 775 (1967)), we find that within two hours after Hensley took the Mach I for a test run, and to see if he could obtain a loan, Ford sold the Cyclone without legal title and with the understanding that it would not be sold until Hensley completed the financing arrangements. It is also noted that Ford was aware of Hensley’s inability to obtain a loan for the purchase of a car a few weeks before. According to Hensley it was understood that the personal property in the car was not included in the trade, yet Ford sold it too. All in all, we are of the opinion that the evidence warranted a finding that Ford acted with gross neglect or disregard for the rights of Hensley. We cannot say, however, that the trial court erred in conditionally granting a new trial on the ground that the verdict was excessive. CR 59.01(4). This court has said in Ashland Dry Goods Co. v. Wages, supra, that the purpose of awarding punitive damages “ * * * is to punish the person doing the wrongful act and to discourage such person and others from similar conduct in the future.” See also Harrod v. Fraley, Ky., 289 S.W.2d 203 (1956). A slight variance in this rule is found in Louisville & N. R. Co. v. Roth, 130 Ky. 759, 114 S.W. 264 (1908), wherein we said: “ * * * punitive damages are awarded as a civil punishment inflicted upon the wrongdoer, rather than as indemnity to the injured party, although, as he will be the beneficiary of the punishment inflicted, it might with much propriety be said that they are allowed by way of remuneration for the aggravated wrong done.” According to Restatement of the Law, Torts, § 908(1), page 554: “ ‘Punitive Damages’ are damages, other than compensatory or nominal damages, awarded against a person to punish him for his outrageous conduct.” That does not mean, however, that the amount of recovery may be determined without considering the seriousness of the injury and the culpability of the one causing the injuries. While there is a difference in the wording of our cases, we perceive the rule to be that an award of punitive damages need not bear a proportional relationship to the award of actual damages. Maddix v. Gammon, 293 Ky. 540, 169 S.W.2d 594 (1943); Engleman v. Caldwell & Jones, 243 Ky. 23, 47 S.W.2d 971 (1932); Wigginton’s Adm’r v. Rickert, 186 Ky. 650, 217 S.W. 933 (1920); Louisville & N. R. Co. v. Ritchel, 148 Ky. 701, 147 S.W. 411 (1912). But punitive damages must bear some relationship to the injury and the cause thereof. See Louisville & N. R. Co. v. Ritchel, supra, 148 Ky. 701, 147 S.W. 411 (1912); Buford v. Hopewell, 140 Ky. 666, 131 S.W. 502 (1910); Louisville & N. R. Co. v. Roth, supra, 130 Ky. 759, 114 S.W. 264 (1908); Louisville South R. Co. v. Minogue, 90 Ky. 369, 14 S.W. 357 (1890). This is the interpretation given to the Kentucky rule by at least two United States courts of appeals. See Kidd v. Burlew (6th Cir. 1969), 407 F.2d 204, and Flame Coal Company v. United Mine Workers of America (6th Cir. 1962), 303 F.2d 39. By applying this rule to the instant case we conclude that although the punitive damages ($20,000) might appear to be out of proportion to the compensatory damages ($2,103.85), the disproportion is not a factor to be considered. We are concerned, however, with the question of whether the verdict was excessive in light of the facts of the case — that is, whether there was sufficient relationship of the punitive damages to the injury and the cause of it to justify the largeness of the verdict. We have repeatedly said that this court will not overturn the granting of a new trial unless the court has abused its discretion or clearly erred. City of Louisville v. Allen, Ky., 385 S.W.2d 179 (1964). This consideration must be balanced against the well-established rule that the jury has a wide discretion in awarding punitive damages. The problem was well stated long ago in Louisville South R. Co. v. Minogue, supra, 90 Ky. 369, 14 S.W. 357, 358 (1890): “It is impossible to measure with anything like absolute certainty the amount of punitive damages proper in a case, or the extent of some of the elements of those which are compensatory. The opinion of a jury has been, and properly, no doubt, regarded as the best means of even a fair approximation, and every verdict should be treated prima facie as the result of honest judgment upon their part. They are the constitutional triers of the facts of a case, and courts should exercise great caution in interfering with their verdicts. Litigants must not be left, however, to their arbitrary will, and be without remedy in cases where verdicts can be accounted for only upon the theory that they are the result of an improper sympathy, or unreasonable prejudice. In such cases it is one of the highest duties of a court to interfere; otherwise great wrongs will often result, and the party be remediless. Whether it should do so is more easily determinable in a case where compensatory damages only are allowable, because they in part admit of exact measurement. In such cases, this court has often reversed the jury’s finding. We see no reason why it should not do so in a case like this one, but with increased caution, perhaps.” Obviously decisions must be made on a case-by-case basis. After our having carefully considered all of the facts and having determined that there was not a sufficient relationship of the punitive damages to the injury and the cause thereof, we are of the opinion that the trial court did not abuse its discretion in granting a new trial on the ground that the verdict was excessive. Ford contends that although the trial court sustained its objection to Hensley’s counsel’s statement to the jury alluding to the financial conditions of Ford and Hensley, and although the court admonished the jury not to consider the remarks, the jury was prejudiced, which was reflected by the large verdict. Hensley argues on the other hand that he was entitled to show the respective financial conditions and cites authorities of other jurisdictions. Since the case is being reversed for another trial, we think it advisable to say that we reaffirm our former cases which hold that in actions for punitive damages the parties may not present evidence or in anywise advise the jury of the financial conditions of either side of the litigation. Givens v. Berkley, 108 Ky. 236, 56 S.W. 158 (1900); Shields’ Adm’rs v. Rowland, 151 Ky. 822, 152 S.W. 943 (1913). The judgment is reversed as to that part deciding that Hensley was not entitled to punitive damages and affirmed as to that part conditionally granting a new trial. The judgment is affirmed as to the compensatory damages awarded. The case is remanded for a new trial only on the issue of the amount of punitive damages to be awarded Hensley. OSBORNE, C. J., and JONES, MILLIKEN, PALMORE, STEINFELD and STEPHENSON, JJ„ concur. REED, J., concurs, stating: I agree that the opinion represents the current law in Kentucky. I would, however, seriously consider abolishing punitive damages as allowable. As long as we retain the right to recover punitive damages, the rule followed by most other jurisdictions that evidence of the financial condition of the defendant is admissible is the better view because it is consistent with the flimsy reason given for the allowance at all — deterrence. To exclude such evidence is inconsistent with the claimed purpose of deterrence.

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Jo Ann TURLEY, Petitioner, v. Henry M. GRIFFIN, Judge, Daviess Circuit Court, et al., Respondents. Court of Appeals of Kentucky. May 3, 1974. Stewart B. Elliott, Owensboro, for petitioner. David L. Yewell, Owensboro, for respondents STEPHENSON, Justice. Jo Ann Turley seeks to prohibit a judge of the Daviess Circuit Court from proceeding in a child custody hearing on the ground that the Daviess Circuit Court does not have jurisdiction. Jo Ann Turley and Daniel Lee Turley were married on July 26, 1969, in Columbia, Missouri. A child, Gayla Michelle Turley was born of the marriage. On September 22, 1971, the Turleys, then residents of Daviess County, were divorced by judgment of the Daviess Circuit Court. Custody of the daughter, Gayla Michelle was awarded to Jo Ann, subject to visitation rights. After the divorce, Jo Ann moved to Indiana, and then on December 18, 1973, she moved from Indiana to Dallas, Texas. The first of March 1974, Jo Ann permitted Daniel Lee to bring the child to Kentucky for a two weeks’ visit. During this period, Daniel Lee filed a motion in the Daviess Circuit Court to change and modify the original custody decree by granting him the custody of the child. Jo Ann, after unsuccessfully challenging the jurisdiction of the Daviess Circuit Court filed an original action in this court seeking prohibition. We are presented with the problem of construing the Acts of the 1972 General Assembly with regard to jurisdiction of a custody proceeding. KRS 403.260, in part, provides as follows: “Custody — Jurisdiction, commencement of proceedings. — (1) A court of this state competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if: (a) This state: 1. Is the home state of the child at the time of commencement of the proceeding; or 2. Had been the child’s home state within 6 months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reason, and a parent or person acting as parent continues to live in this state; or (b) It is in the best interest of the child that a court of this state assume jurisdiction because: 1. The child and his parents, or the child and at least one (1) contestant, have a significant connection with this state; and 2. There is available in this state substantial evidence concerning the child’s present future care, protection, training, and personal relationships; or (c) The child is physically present in this state; and 1. Has been abandoned; or 2. It is necessary in an emergency to protect him because he has been subjected to or threatened with mistreatment or abuse or is neglected or dependent; or (d) 1. No other state has jurisdiction under prerequisites substantially in accordance with paragraphs (a), (b) or (c) of subsection (1), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine custody of the child; and 2. It is in his best interest that the court assume jurisdiction. (2) Except under paragraphs (c) and (d) of subsection (1), physical presence in this state of the child, or of the child and one (1) of the contestants, is not alone sufficient to confer jurisdiction on the court of this state to make a child custody determination.” The provisions of the Act clearly provide that six months after Jo Ann and the child moved to Indiana this state was divested of jurisdiction to make a child custody determination as the home state. While it might be argued that the child and the father have a significant connection with this state ((b) 1), there is no showing that there is available in this state substantial evidence concerning the child’s present or future care, protection, training and personal relationship ((b) 2). It is not contended that this state has jurisdiction under (c) or (d). The purpose of (b) 1 and 2 is to limit jurisdiction rather than proliferate it. Jurisdiction exists only if it is in the child’s interest, not merely the interest or convenience of the feuding parties, to determine custody in a particular state. The interest of the child is served when the forum has optimum access to relevant evidence about the child and family. There must be maximum rather than minimum contact with the state. Uniform Child Custody Jurisdiction Act (U.L.A.) § 3, Commissioners’ Note p. 108. We are of the opinion that the facts of this case are not sufficient to vest this state with jurisdiction to make a child custody determination in accordance with the provisions of the Act. The temporary order of prohibition heretofore issued in this proceeding is now made permanent, and the Daviess Circuit Court is prohibited from proceeding further in this matter. All concur.

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Dewey E. HARRISON, Appellant, v. Lucille ROBUCK et al., and Kentucky Parole Board, Appellees. Court of Appeals of Kentucky. May 3, 1974. Dewey E. Harrison, pro se. Ed. W. Hancock, Atty. Gen., Patrick B. Kimberlin, III., Asst. Atty. Gen., Frankfort, for appellees. REED, Justice. The appellant, Dewey E. Harrison, instituted a declaratory judgment action in the Franklin Circuit Court against the appel-lees, Lucille Robuck, Glenn Wade and Carl Ousley, who, at the time, apparently comprised the total membership of the Kentucky Parole Board. The circuit court sustained the appellees’ motion to dismiss the action on the basis that it did not state a claim for declaratory relief and for the additional reason that appellant lacked capacity to sue for the ouster of the appellees from office as members of the Parole Board. On this appeal the appellant states the question presented to be whether the appel-lees are exempt from judicial review if there is an abuse of discretion on their part where it is alleged they denied him legal or lay representation at a parole hearing and also refused to make a statement of reasons for denying his application for parole. An application for parole by a confined prisoner does not implicate the same considerations as are involved where he has been granted conditional liberty, and a claim that he has violated the conditions of his release from custody is thereafter presented. The determination to extend the rehabilitative measures of supervised parole from confinement necessitates very wide discretion and is by its nature discriminatory in predicting the individual’s abilities, future performance, and the potential danger to society by his release from custody. Consequently we are unwilling to say that a hearing and interview to determine whether a prisoner validly confined by mandate of law should be afforded the special consideration of rehabilitative parole is an adversary hearing in the same sense as would be a hearing to determine whether to change a citizen from a status of liberty to a status of confinement. Therefore, we hold appellant’s contention that appellees were guilty of abuse of discretion when they excluded legal or lay representatives from his parole hearing is without merit. We also conclude that whether the Parole Board furnishes an applicant prisoner with a statement of reasons for parole denial is a matter of policy for the Board to determine in its administration of the parole system. We are unwilling to impose more stringent procedural requirements on the Parole Board then are required of analogous administrative agencies. We find that the circuit court correctly disposed of so much of appellant’s suit as sought removal of appellees from office. The statutory provisions for the removal from office of a member of the Parole Board under KRS 439.320(4), and the authority of the Attorney General to institute quo warranto proceedings are the legal avenues afforded for removal of these officials. To entertain declaratory judgment actions by disappointed applicant prisoners to remove from office parole board members when their qualifications have been predetermined by the executive appointing authority is, in our view, completely beyond our authority. The judgment is affirmed. All concur.

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Caselaw Access Project

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Richard Alen SCHMIDT, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. May 3, 1974. John D. Miller, Miller & Taylor, Owens-boro, for appellant. Ed W. Hancock, Atty. Gen., Patrick B. Kimberlin III, Asst. Atty. Gen., Frankfort, for appellee. MILLIKEN, Justice. This is an appeal from a conviction in the Muhlenberg Circuit Court on the charge of selling marijuana. The defendant, admitted to bail pending this appeal, was sentenced to a year in jail and fined $500. On appeal, the defendant-appellant presents two issues: (1) Whether the instructions given by the trial court were in conformity with RCr 9.56; and, (2) whether the trial court ruled correctly in denying the appellant’s proposed defense of entrapment. On September 23, 1972, around sunset, Don Garrett, an off-duty state trooper, drove in to the parking lot of the P. N. Hirch Store in the Sears Shopping Center, Central City, Muhlenberg County, Kentucky, to do some shopping. Garrett was dressed in civilian clothes and driving his family car. As he parked, Garrett observed the appellant, Richard Alen Schmidt, walk out of the P. N. Hirch Store and seat himself on the curb with his head down in his hands. Garrett, believing the appellant to be sick or drunk, rolled down his window and asked if Schmidt were sick. Schmidt said he was not and asked Garrett to take him to the Dairy Maid. Garrett agreed. Upon Schmidt entering the car, Garrett inquired as to his name at which time Schmidt stated, “You mean you don’t know me, (sic) I am the biggest pusher in Muhlenberg County. Do you want to cop a lid?” The trooper asked what he meant by “cop a lid”. Appellant replied, “Do you want to buy some marijuana?” Garrett said, “Sure, I want to buy some marijuana.” The appellant then stated, “If you will take me to my trailer, I will get it.” He indicated the price would be twenty dollars a “lid” (an ounce of marijuana). Garrett took the appellant to his trailer home and made a purchase of marijuana, after which he arrested him. Appellant contends that the trial court committed reversible error by failing to give the instruction as contained in RCr 9.56. That rule is as follows: Rule 9.56. Reasonable doubt. — The jury shall be instructed that if there is a rea-sonble doubt of the defendant’s being proved to be guilty, he is entitled to an acquittal and that if there be a reasonable doubt of the degree of the offense which the defendant has committed, he shall be convicted only of the lower degree. There is nothing in the above language, however, which requires the statutory language be used in the instruction on reasonable doubt. What is important is to convey to the jury the idea that where they entertain reasonable doubt, they should acquit. Thus, language which differs from that contained in RCr 9.56 is not necessarily defective. Where there is but one charge against the accused as in the case here, that of selling marijuana to Officer Garrett, the instruction below is not error: If the jury should believe from the evidence, to the exclusion of a reasonable doubt that in this county, and on or about September 23, 1972, and within one year prior to the findings of the indictment herein that the defendant, Richard Alen Schmidt knowingly and wil-fully sold marijuana to Don Garrett, then the jury should find the defendant guilty and fix his punishment at confinement in the County Jail for any period of time not to exceed one year, or shall fine him in any amount not to exceed $500; or in the discretion of the jury it may both fine and imprison him within said limits. Unless you so believe to the exclusion of a reasonable doubt, you shall find the defendant not guilty. (Emphasis added.) The instruction as given notifies the jury under which circumstances they shall find the accused guilty; or if they do not believe the accused guilty to the exclusion of a reasonable doubt, they shall find him not guilty. A similar instruction was sustained in Marcum v. Commonwealth, Ky., 473 S. W.2d 122, 124 (1971), where the court said: “It is our opinion that the court made it sufficiently clear to the jury that its decision had to be based upon a finding beyond a reasonable doubt.” The Marcum case and the case at bar are similar in that in each the accused was charged with a single offense. We find the instruction here adequate in this case. We point out, however, that where an accused is charged with multiple offenses or where the jury is given the choice of selecting a particular degree of an offense charged, as in a murder trial when the jury is permitted to select between wilful murder or voluntary homicide or manslaughter, in that class of case the court should properly include an individual instruction phrased in the language of RCr 9.56 as approved by Watkins v. Commonwealth, Ky., 465 S.W.2d 245, 249 (1971) to wit: “If upon the whole case you have a reasonable doubt as to the defendant’s guilt, you shall find him not guilty.” We find no entrapment here. The testimony is to the effect that the trooper did not previously know Schmidt, did not induce the sale of marijuana but merely accepted Schmidt’s offer. There was no trickery or persuasion used to induce the sale which apparently was one in the ordinary course of Schmidt’s business. So far as Schmidt’s claim of drunkenness as a defense is concerned, there is no question that he knew what he was doing — that he “knowingly” made the sale in violation of the law. He requested to be driven to his trailer home to get the marijuana and arranged to meet the trooper outside to complete the sale. The judgment is affirmed. All concur.

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STANDARD PRODUCTS COMPANY and Federal Insurance Company, Appellants, v. Phyllis F. ESTES (now Kidd), and Julian R. Gabbard, et al., Appellees. STANDARD PRODUCTS COMPANY and Federal Insurance Company, Appellants, v. Phyllis F. ESTES (now Kidd), and Workmen’s Compensation Board, Appellees. Phyllis F. ESTES (now Kidd), Cross-Appellant, v. STANDARD PRODUCTS COMPANY and Federal Insurance Company, Cross-Appellees. Court of Appeals of Kentucky. May 3, 1974. Elwood Rosenbaum, Rosenbaum & Smith, Lexington, for appellants and cross-appellees Standard Products Co. and Federal Ins. Co. Julian R. Gabbard, Lexington, Murvel E. Combs, Dept, of Labor, J. Keller Whitaker, Workmen’s Compensation Bd., Dept, of Labor, Frankfort, for appellees and cross-appellant Phyllis F. Estes (now Kidd), Julian R. Gabbard and others. VANCE, Commissioner. For purposes of consideration in this court we have consolidated these two direct appeals and a cross-appeal all of which relate to a single Workmen’s Compensation claim. On October 19, 1970, Phyllis Estes was awarded compensation for fifteen percent permanent-partial disability resulting from a back injury. Her attorney was allowed a fee of $633.80. On December 15, 1970, she underwent surgery for fusion of the injured intervertebral disc. The next day she filed a motion to reopen the award upon the ground of change of condition, she then being in the hospital and totally disabled, at least temporarily. The motion to reopen was sustained and on June 28, 1971, the Board found her to be 100% permanently disabled but because her condition was subject to improvement by reason of the surgery an open-end award was made. This award was appealed to this court and was affirmed. Standard Products Company v. Estes, Ky., 481 S.W.2d 98 (1972). Therein we construed the Board’s finding of permanent disability and the award as being “an award for temporary-total disability of indefinite duration, terminable upon a showing of further change of condition and subject of course to the maximum statutory limits.” The opinion of this court was dated May 12, 1972, and the mandate issued June 20, 1972. On May 23, 1972, (after the delivery of the opinion but before the issuance of the mandate) the employer filed a motion to reopen the award alleging that the employee had returned to work. The employee responded to the motion pointing out the fact that the appeal was still pending and no mandate had issued. On June 30, 1972, the employer filed with the Board a pleading styled “Renewal of Motion to Discontinue or Reduce the Award” which requested the Board to discontinue, reduce, or modify the award of October 19, 1970, on the ground that the employee had sufficiently recovered to permit resumption of work. On July 12, 1972, employee’s attorney filed a motion for an attorney’s fee which was objected to by the employer upon the ground that when the motion was filed there was pending a motion to reopen the award. On August 10, 1972, the employer moved to reopen the award of June 28, 1971, on the ground that the employee had returned to work in July 1971 and had worked continuously since that time, most of the time at an increase in salary. The Board met on August 7th and overruled the June 30, 1972, motion to discontinue or reduce the award and allowed an additional attorney’s fee to the employee’s attorney in the amount of $2,876.38. That order was not placed in the mail however until August 11, 1972, one'day after the motion to reopen had been filed on August 10, 1972. On August 15, 1972, the employer petitioned for a reconsideration of the Board’s order dated August 7, 1972. This petition for reconsideration was denied. The employer then appealed to the Fay-ette Circuit Court from the order denying a reopening of the case and from the allowance of the attorney’s fee and the employer declined to make any payments during the pendency of the litigation. The circuit court reversed the Board’s order which denied a reopening of the claim and directed that the Board grant an evidentiary hearing on the motion to reopen. It affirmed the allowance of an attorney’s fee and ordered installments of the award to be paid during the pendency of the motion to reopen. The employer filed a direct appeal from that portion of the judgment allowing and approving the attorney’s fee and directing payments during the pendency of the motion to reopen. The employee filed a cross-appeal from that part of the judgment which directed the Board to grant an evidentiary hearing on the question of reopening. In a separate action pursuant to KRS 342.305 the employee sought an enforcement of the award in Fayette Circuit Court and judgment was entered in that action for the enforcement of the award and the attorney’s fee. The employer has filed a direct appeal from that judgment. Three questions of substance are presented by these appeals. (1) Did the judgment erroneously order an evidentiary hearing on the matter of reopening of the award? (2) Did the judgment erroneously direct the payment of the installments of the award during the pendency of the motion to reopen the claim? (3) Did the judgment erroneously direct the payment of the additional attorney’s fee? The employee contends the judgment is erroneous insofar as it directs an eviden-tiary hearing on the matter of reopening for two reasons: (1) No proper motion to reopen was ever filed and (2) the employer is estopped from seeking a reopening. The employer made four motions to reopen the award. The employee contends all four motions were defective, the first because it was premature, it being filed on May 23, 1971, while the case was still pending in the Court of Appeals, its mandate not issuing until June 20, 1972; the second filed on June 30, 1972, because it mistakenly asked for a reopening of the award of October 19, 1970, rather than the award of June 28, 1971; the third, filed August 10, 1972, because it did not have an affidavit of a physician but this motion did have attached to it an affidavit that the employee returned to work in July 1971 and worked continuously until the filing of the affidavit. The fourth motion to reopen filed August 15, 1972, was an amended motion in which the movant restated the allegation of the motion of August 10, 1972, and attached the affidavit of a treating physician but the employee contends this was not proper since the affidavit was required to be filed with the motion in the first instance and not by amendment. The four attempts of the employer to file a proper motion for reopening, albeit clumsy, nevertheless presented a clear allegation that the temporary-total disability awarded on June 28, 1971, had come to an end and that the employee had returned to work regularly at her old job with an increase in pay. One of the motions was accompanied by an affidavit of a physician which indicated that the employee could return to work and another was accompanied by an affidavit of a physician that the temporary-total disability had ceased. We think the matter of reopening was properly presented to the Board by the motion of June 30, 1972. The action of the Board in refusing to hear evidence relating to the matter of reopening was unreasonable and the judgment of the court directing such a hearing was proper. No authority is cited for the claim that the employer is estopped to reopen the award. We have held that an employer may withhold payments of compensation during the pendency of a motion to reopen the award. Scheurich & Fritz Roofing Company v. DeWitt, Ky., 424 S.W.2d 390 (1968). In Scheurich, supra, we said that the circuit court has no authority to enter a judgment enforcing an award while a motion to reopen is pending except as to any part of the award not sought to be reopened. The employee contends that the award has already been converted to a money judgment by reason of the fact that an appeal was taken from the award and the award was affirmed by the circuit court and by this court. A judgment of a circuit court affirming an award of the Workmen’s Compensation Board has been held to be a judgment for the payment of money. Rice v. Conley, Ky., 419 S.W.2d 769 (1967). The employee argues that since the award was reduced to a judgment as a result of the disposition of the original appeal, a motion to reopen cannot suspend the judgment and the judgment therefore remains in effect and is enforceable until modified pursuant to KRS 342.305 in conformity with some further order of the Board. Rice v. Conley, supra, involved the consideration of whether a penalty of ten percent should be taxed in a case in which a judgment of the circuit court affirming an award of the Compensation Board was affirmed on appeal when the judgment had been superseded pending the appeal. In that context this court held that the judgment was a judgment for the payment of money and when superseded upon appeal, the ten percent penalty would apply if the judgment was affirmed by this court. The factual situation in Rice, supra, distinguishes it from the present proceeding and except for the situation presented in Rice we think that a judgment of the court affirming an award of the Compensation Board is not properly a judgment for the payment of money but is no more than a judicial declaration that the Board did not exceed its powers, the award was not procured by fraud and was in conformity with the act, was not clearly erroneous, arbitrary or capricious or the result of abuse of discretion. KRS 342.285 limits the scope of appellate review to these matters. An award, unappealed from or affirmed upon appeal, may be reduced to judgment for the purposes of enforcement of the award only by the procedures prescribed in KRS 342.305. We think therefore that the judgment of the circuit court affirming the award cannot in these circumstances be construed as an enforceable judgment for the payment of weekly installments of compensation. It follows that the court erred in directing the continuance of payments of compensation during the pendency of the motion to reopen the award. The motion to reopen could not affect the employer’s liability for payment of compensation from December IS, 1970, the date she became temporarily-totally disabled, until June 30, 1972 (the date of the first proper motion to reopen the award). We also think the award of the additional attorney’s fee was improper. At the time it was allowed the question of whether the award should be reduced or modified had not been and has not yet been finally disposed of. The applicable statutes authorized the allowance of a fee in a lump sum but the state of this record does not yet permit a determination of whether the fee should be computed on the basis of recovery for total or some lesser degree of disability. The fee should be allowed after that determination is made. The judgment is reversed as to the appeal in each of the consolidated cases and is affirmed as to the cross-appeal. The entry of a new judgment in conformity with this opinion is directed. All concur. . Tlie continuing effect of Scheurich & Fritz Roofing Company v. DeWitt, Ky., 424 S.W.2d 390 (1968), is called into question by the enactment of an amendment to KRS 342.125 which provides that the employer shall not suspend the payment of benefits during the pendency of any reopening procedure. This amendment became effective January 1, 1973, and is not applicable to this claim. . This holding likewise is called into question by an amendment to KRS 342.305 which provides that the circuit court may enter a judgment of enforcement whether or not there is a motion to reopen or review pending under KRS 342.125. This amendment became effective January 1, 1973, and is not applicable to this claim.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

James Eddie RISNER, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. May 3, 1974. William C. Ayer, Jr., Asst. Public Defender, Frankfort, for appellant. Ed Hancock, Atty. Gen., Carl Miller, Asst. Atty. Gen., Frankfort, for appellee. CULLEN, Commissioner. Edward James Risner, 17 years of age, was brought before the juvenile court of Morgan County on a complaint that he had kidnapped or falsely imprisoned one Janis Sheets. The juvenile court transferred jurisdiction to the Morgan Circuit Court, where he was tried and convicted on a charge of false imprisonment, KRS 435.-140, and given a 20-year sentence. On this appeal from the judgment of conviction Risner’s sole contention is that the purported transfer of jurisdiction from the juvenile court to the circuit court was invalid, wherefore the circuit court never acquired jurisdiction. The order of transfer, as respects the reasons for the waiver of jurisdiction by the juvenile court, simply used the words of the statute, KRS 208.170, that “it would be to the best interest of the child * * * and of the public that the child be tried and disposed of under the regular law governing crimes.” In Hubbs v. Commonwealth, Ky., 511 S. W.2d 664 (decided May 3, 1974, on petition for rehearing), this Court held that a mere parroting of the words of the statute is not a sufficient statement of reasons, and that the waiver order, or an accompanying, statement, or the juvenile court record, must include a statement of the reasons for the transfer which are specific enough to permit meaningful review for the purpose of determining whether there has been compliance with KRS 208.170(1). In the instant case the entire record of the juvenile court proceedings was filed in the circuit court. That record does not include any statement of reasons for the waiver of jurisdiction. Nor was there any separate statement of reasons accompanying the order of transfer. Therefore, we must hold that the purported transfer was invalid and that the circuit court did not acquire jurisdiction. The judgment is reversed. All concur except JONES and STEPHENSON, JJ., who dissent.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Steve CALLER et al., Appellants, v. Elizabeth ISON et al., Appellees. Court of Appeals of Kentucky. May 3, 1974. H. Wayne Riddle, Miller, Griffin & Marks, Lexington, for appellants. Charles W. Arnold, Foster Ockerman, Martin, Ockerman & Brabant, Lexington, for appellees. CATINNA, Commissioner. The appellants applied to the City-County Planning Commission of Lexington and Fayette County for a change in zoning for a one-half-acre tract of land from professional (P-1) to neighborhood business (B-l). The subject property lay at the edge of a professional use (P-1) zone and bordered a business use (B-l) and a' residential use zone (R-4). The Commission recommended that the application be denied. The Board of Commissioners rejected this recommendation and made a factual finding “that there had been major changes of an economic, physical or social nature within the area involved which were not anticipated in the community’s comprehensive plan and which have substantively altered the basic character of such area, and that the original zoning classification given to the property was inappropriate or improper.” Property owners protesting the change appealed to the Fayette Circuit Court which reversed the Board of Commissioners, holding that the Board’s findings of fact were so insufficient as to usurp the court’s right of review. The findings of fact by the Board of Commissioners were nothing other than the mere parroting of the words of the statute, KRS 100.213(2). A finding which consists of nothing other than a repetition of the legal requirements as set out by a statute fails to meet the requirements of due process, in that such finding does not contain sufficient adjudicative facts to permit a court to conduct a meaningful review of the proceeding for the purpose of determining the question of whether the action of the Commission has or has not been arbitrary. In City of Louisville v. McDonald, Ky., 470 S.W.2d 173 (1971), we held that the requirements of the proceeding conducted, in order to meet constitutional due process, must include a hearing, the taking and weighing of offered evidence, a finding of fact based upon a consideration of the evidence, and conclusions supported by substantial evidence. As the findings were nothing more than a restatement of the legal requirements, they were not specific enough to permit a meaningful review by the court. The judgment is affirmed. All concur.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Otis MAGGARD, Appellant, v. INTERNATIONAL HARVESTER COMPANY et al., Appellees (two cases). James R. YOCOM, Appellant, v. Otis MAGGARD et al., Appellees. Court of Appeals of Kentucky. Feb. 1, 1974. As Modified on Denial of Rehearing April 12, 1974. Eugene Goss, Goss & Forester, Harlan, for Otis Maggard. William A. Rice, Rice & Huff, Harlan, for International Harvester Co. Robert D. Hawkins, Chief Counsel, Dept, of Labor, Frankfort, Gemma M. Harding, Dept, of Labor, Louisville, Arthur R. Samuel, John Oakley, Dept, of Labor, Frankfort, for James R. Yocom and Special Fund. CATINNA, Commissioner. Otis Maggard was last exposed to the hazards of pneumoconiosis on January 3, 1973, which date is also the date of his last employment. He had worked in the mines for a period of more than forty years prior to his disability. On April 2, 1973, the Workmen’s Compensation Board found that Maggard was permanently and totally disabled by the occupational disease of pneumoconiosis. He was awarded compensation in the sum of $60 per week for a period of 425 weeks in the aggregate. Liability for the entire award was assessed against the Special Fund. Maggard also filed a claim for benefits under the National Coal Mine Health and Safety Act of 1969, as amended, Title 30 U.S.C.A., Subchapter IV, Black Lung Benefits, Section 901, et seq. Although this federal claim was pending during the proceedings had before the Workmen’s Compensation Board, no final action was taken prior to the time when the award of the board became final. Maggard and the Special Fund, in separate appeals to the Harlan Circuit Court, contended that the board erroneously construed and applied the law as set out in the 1972 amendments to the Workmen’s Compensation Act, particularly Section 37 of Senate Bill 184 (1972 Acts, Chapter 78, Section 37) relating to the effective date of certain provisions of the act as amended. The circuit court, in affirming the board, dismissed each appeal and from this judgment Maggard and the Special Fund appeal to this court. Section 37 of Senate Bill 184 provides: “Effective date. This Act shall be effective on January 1, 1973; and effective for all claims filed on and after January 1, 1973; provided, however, that in the event federal law specifies that claims covered by provisions of this Act shall be filed with a federal agency such claims shall continue to be filed as required by the federal law until repeal or expiration of the federal law requiring same; then, in that event, the increase in benefits provided herein shall not apply to those claims where benefits are awarded under the federal law. The benefits under the present law KRS Chapter 342 shall apply to those claims.” This section lends itself to various constructions, thus forming the basis of the controversy in this proceeding. The Workmen’s Compensation Board has construed this section as standing for the proposition that for so long as there is a Federal Black Lung Program the effective date of the amendments in Senate Bill 184, insofar as they apply to increased black-lung benefits, are deferred and all proceedings under the Kentucky Workmen’s Compensation Act are governed by the law in effect prior to the amendment. Consequently, the board has limited its awards to a maximum of $60 per week for a period of 425 weeks and assessed all payments against the Special Fund. Upon this appeal Maggard poses the three following questions: “QUESTION NO. 1 Whether the 1972 Amendments to the Kentucky Workmen’s Compensation Act, incorporated in Senate Bill 184 of the Acts of the General Assembly, require payment of benefits in the sum of $81.-00 per week for life to a workman successfully claiming total and permanent disability from occupational pneumoconi-osis, when such workman’s last exposure to the hazards of the occupational disease occurred on January 3, 1973. “QUESTION NO. 2 Whether the 1972 Amendments to the Kentucky Workmen’s Compensation Act incorporated in Senate Bill 184 of the Acts of the General Assembly require payment of benefits in the sum of $63.00 per week for 425 weeks to a workman successfully claiming total and permanent disability from occupational pneu-moconiosis, where such workman’s last exposure to the hazards of the occupational disease occurred on January 3, 1973, subject to increase to $81.00 per week for life should such workman’s claim for Federal Black Lung Benefits be ultimately denied. “QUESTION NO. 3 Whether the 1972- Amendments to the Kentucky Workmen’s Compensation Act, incorporated in Senate Bill 184 of the Acts of the General Assembly, require payment of benefits in the sum of $63.00 per week for 425 weeks to a workman successfully claiming total and permanent disability from occupational pneu-moconiosis, where such workman’s last exposure to the hazards of the occupational disease occurred on January 3, 1973.” In a separate proceeding Maggard seeks to recover the difference between the $60 per week awarded him by the board and the sum of $63 per week to which he claims to be entitled. The Special Fund upon its appeal questions the act as follows : “1. Whether the 1972 Amendments to the Kentucky Workmen’s Compensation Act, Incorporated Chapter 78, Section 37, of Senate Bill 184 of the Acts of the General Assembly delay the payments of increased benefits until January 1, 1974. “2. Whether the 1972 Amendments to the Workmen’s Compensation Act, Incorporated Chapter 78, Section 18(13) (a), in Senate Bill 184 of the Acts of the General Assembly became effective January 1, 1973.” It is admitted by all of the parties that Section 37 is very ineptly drawn and fails to clearly express the desires or intentions of the legislature insofar as an increase in black-lung benefits is concerned. The separate appeals of Maggard and the Special Fund are illustrative of a conflict that defies resolution from a mere reading of the act. Because of this conflict, it becomes necessary for us to examine Senate Bill 184 amending the Workmen’s Compensation Act and prevailing circumstances and seek to ascertain therefrom the intention and purpose of the legislature in so enacting this amendment and, in particular, Section 37. In Princess Manufacturing Company v. Jarrell, Ky., 465 S.W.2d 45 (1971), we said: “* * * It is not the prerogative of the court to attempt to establish policy or determine the wisdom of the legislation. When we encounter a situation where the legislative intent is not discernible from the language of the act, we may look beyond the language of the act to legislative history and purpose of the legislation and other pertinent factors to determine legislative intent.” See also May v. Clay-Gentry-Graves Tobacco Warehouse Company, 284 Ky. 502, 145 S.W.2d 84 (1940). A determination of the purposes of Senate Bill 184 requires that it be examined in light of certain provisions of the Federal Black Lung Act. In the adoption of Subchapter IV, Black Lung Benefits, of the Coal Mine Health and Safety Act of 1969, the congressional findings and declaration of purpose were set out as follows: “Congress finds and declares that there are a significant number of coal miners living today who are totally disabled due to pneumoconiosis arising out of employment in one or more of the nation’s underground coal mines; that there are a number of survivors of coal miners whose deaths were due to this disease; and that few states provide benefits for death or disability due to this disease to coal miners or their surviving dependents. It is, therefore, the the purpose of this subchapter to provide benefits, in cooperation with the States, to coal miners who are totally disabled due to pneumoconiosis and to the surviving dependents of miners whose death was due to such disease; and to insure that in the future adequate benefits are provided to coal miners and their dependents in the event of their death or total disability due to pneumoconiosis.” (30 U.S.C.A. Section 901). The above section indicates that Congress intended to guarantee adequate benefits upon a permanent basis and not merely during the effective period of the act. Section 921 of the act provided for the promulgation of standards defining total disability and certain presumptions that were to be considered. Section 922 providing for the payment of benefits required that the amounts awarded be reduced on a monthly or other appropriate basis by an amount equal to any payment received under a state workmen’s compensation act, the consequence being that the federal payments merely supplemented payments by the states, where made, to the point where Congress was of the opinion that the recipient was receiving adequate benefits. Section 923(a) of the act provided that the federal authorities would accept claims for benefits under the act until December 31, 1972, while 923(c) provided that no claim for benefits under the act would be considered unless the claimant had also filed a claim under the state workmen’s compensation law prior to or at the same time his claim was filed for benefits under the act. What we might term the penalty provisions of the act are set out in Sections 931 and 932. Section 931(a) provides that on or after January 1, 1973, claims for benefits for total disability due to pneumoconi-osis should be filed pursuant to the applicable state workmen’s compensation law, except during such period when the state law does not provide adequate coverage for pneumoconiosis. Section 931(b) defines adequate coverage of a state law as being, in effect, the same coverage provided by the federal act. The state law would be considered inadequate unless the Secretary of Health, Education and Welfare should have established its adequacy by publishing this fact in the Federal Register. Section 932 provides that during any period after December 31, 1972, in which the state workmen’s compensation law is not on the list published by the secretary all black-lung benefits accruing to coal miners or their dependents would be governed and paid pursuant to the provisions of the Federal Longshoremen’s and Harbor Workers’ Compensation Act. Section 932 of the act has the effect of abrogating a state workmen’s compensation act when the Secretary of Health, Education and Welfare, or after December 31, 1972, the Secretary of Labor, found the state law and the benefits thereunder inadequate thereby forcing the mining industry to operate under a federal act. This was the posture of the situation at the time Senate Bill 184 was enacted. The legislature was faced with the necessity of passing an act that complied with federal standards or of surrendering the administration and payment of pneumoconiosis benefits to the federal government under the Longshoremen’s and Harbor Workers’ Compensation Act. An examination of Section 18 of Senate Bill 184 reveals that KRS 342.316 was extensively amended for the purpose of meeting the requirements and presumptions of the Federal Black Lung Act particularly those contained in Section 921. The senate bill also amended many other sections of the Kentucky Workmen’s Compensation Act, including those providing a formula for determining the maximum benefits paid for total disability and the duration of all such payments. At the time the Kentucky Legislature was in the process of enacting Senate Bill 184, an effort was being made in Congress to extend black-lung benefits under Sub-chapter IV for at least another year. The federal act then in effect expired December 31, 1972, and the penalty provisions of the federal act would therefore have become effective as to any state workmen’s compensation act on January 1, 1973. The legislature was obviously seeking to comply with the federal requirements and in so doing to cause its actions to become effective not later than the date of the expiration of the federal act. As the legislature was aware that Congress was considering a further extension of the Federal Black Lung Act, it is apparent that it was not contemplated that those provisions of Senate Bill 184 relating to increased black-lung benefits should take effect until the federal act, as extended, had expired. Section 37 provided for the contingency of the federal act’s being ex-: tended to a date beyond January 1, 1973. We are of the opinion that Section 37, as adopted, contemplated that increased black-lung benefits, as provided for in Senate Bill 184, should not take effect until such time as the federal act, then in effect or as extended, had expired or been repealed. Although Section 37 does not specifically refer to the black-lung amendments of the Kentucky Workmen’s Compensation Act, it identifies those sections of the amended act that are not to become effective as being those which at the time were governed by the federal act. Insofar as we are aware, the only duplication in the Kentucky Workmen’s Compensation Act and the federal act was the provision of the Coal Mine Health and Safety Act of 1969 for the payment of black-lung benefits. Consequently, Section 37 had particular reference to black-lung benefits when it provided that increase of benefits, as set out in the act, did “not apply to those claims where benefits are awarded under the federal law.” Subsequent to the final passage of Senate Bill 184 and the adjournment of the legislature, Congress, on May 19, 1972, enacted the “Black Lung Benefits Act of 1972,” thus extending federal black-lung benefits for a period of one year — December 31, 1973. The federal act of 1972 contained all of the provisions of the original 1969 act with the exception that the words “underground coal mines” in the 1969 act were deleted and the words “coal mines” inserted. The 1972 act contained identical provisions insofar as eligibility was concerned with the exception that the claim was required to be filed on or before December 31, 1973. Presumptions, definitions, and penalties of the 1969 act were all made a part of the 1972 act. Considering the specific questions that the parties have encountered by reason of the asserted ambiguity in Section 37 of Senate Bill 184, we have concluded as follows : By the terminology contained in Section 37, all the amendments of the Workmen’s Compensation Act embraced within Senate Bill 184 took effect on January 1, 1973, except those amendments which increased black-lung benefits, which increases were deferred for so long as there was an effective federal black-lung program. It is contended that the legislature did not contemplate an extension of the federal program and, therefore, the extension does not fall within the meaning of Section 37. It should be noted that if this were true, then there would have been no need for any part of Section 37 subsequent to its first statement that the act should be effective on January 1, 1973. Reference is made to that portion of Section 37 which provides as follows: “ * * * however, that in the event federal law specifies that claims covered by provisions of this Act shall be filed with a federal agency such claims shall continue to be filed as required by the federal law until repeal or expiration of the federal law requiring same; then, in that event, the increase in benefits provided herein shall not apply to those claims where benefits are awarded under the federal law. The benefits under the present law KRS Chapter 342 shall apply to those claims.” The next ambiguity asserted by the parties entails the latter part of Section 37 and is nothing more than a question of procedure. It is apparent that the legislature, in providing for an orderly implementation of all the amendments to the workmen’s compensation law as set out in Senate Bill 184, intended that the “present law” (the 1970 act) should remain in effect in those instances where the effective date of an amendment had been deferred by the federal law. Thus, until such time as the Federal Black Lung Program was terminated, a black-lung claimant under the Kentucky Workmen’s Compensation Act was bound to proceed under the 1970 act. The parties also are concerned with the question of whether an award made under the 1970 law could be reviewed and the amount thereof increased or modified upon a proper application after the Federal Black Lung Program has terminated. The present workmen’s compensation law, as amended, makes no provision for a reopening upon such grounds. By no stretch of the imagination could any part of Section 37 be so construed as to permit the reopening of awards made under the 1970 law subsequent to termination of the federal program. Such awards are final and are subject to review only upon the grounds provided by KRS 342.125. It is seriously contended that should a federal black-lung claim be denied then the wording of Section 37 is such that the case should be reopened and the award increased to comply with the Kentucky act, as amended. This claim is based upon the wording in the section which reads: “ * * * the increase in benefits provided herein shall not apply to those claims where benefits are awarded under the federal law.” Maggard claims that there must be an award under the federal law if he is to be bound by an award of the Workmen’s Compensation Board made prior to the amendment’s becoming effective. However, when we construe the entire sentence, we can only conclude that the phraseology is such that the legislature was not speaking of an individual or an individual award but rather designating a class of people who would be eligible under the federal act. We do not believe the legislature was concerned with whether a claim was filed or an award made but only with the eligibility of the person under the federal act. One other phrase in Section 37 has caused some considerable confusion. After saying that the act shall be effective on January 1, 1973, the section provides: “ * * * and effective for all claims filed on or after January 1, 1973; * * The question is whether one last exposed to black lung in 1972 could file a claim in 1973 and thereby be entitled to the increased benefits afforded by the amendments. We do not consider this to be a proper interpretation, as we have held that the law in effect on the date of the injury or the date of the last exposure, as the case may be, is the law that fixes the rights of the claimant, and the filing date of the claim has no bearing upon the award other than whether there has been a compliance with the statute of limitations. KRS 342.316(5); Beth-Elkhorn Corporation v. Thomas, Ky., 404 S.W.2d 16 (1966). Maggard, in a separate appeal, seeks to recover the difference between $60 per week awarded by the board and $63 which he claims should have been awarded. As previously stated, the Workmen’s Compensation Board, in its construction of Section 37 of Senate Bill 184, has refused to increase any awards made to black-lung claimants. It' is true that Section 37 did provide that there would be no increase in benefits so long as there was a federal black lung program. Yet, in the next sentence the section provides: “The benefits under the present law KRS Chapter 342 shall apply to those claims.” KRS 342.095 of the then-present law provided: “The maximum basic weekly income benefit for total disability shall not exceed 55% of 85% of the average weekly wage of the state, computed as provided in KRS 342.143 * * *.” KRS 342.143 provides for the termination of a state average weekly wage to be used in determining amounts due claimants under the Workmen’s Compensation Act. This section provides in part that on or before September 1 of each year the state average weekly wage shall be determined by the method set out therein. The section then provides: “The average weekly wage as so determined shall be applicable for the full period during which income or death benefits are payable, when the date of occurrence of injury or of disablement in the case of disease, or of death, falls within the calendar year commencing January 1, following the September 1 determination.” The required September 1 determination of the state average weekly wage was duly made and certified on June 7, 1972, at which time it was fixed at $135.01. Thus, employing the computations provided by KRS 342.095, we determine $63 per week to be the maximum payable on claims where the injury or disability occurs within the calendar year commencing January 1, 1973. Maggard was disabled on January 3, 1973. Therefore, the maximum amount of his benefits should have been determined at $63 per week. The cross-appeal of the Special Fund is concerned primarily with Section 18(13) (a) of Senate Bill 184 (now KRS 342.316(13) (a)). Prior to the amendment by the senate bill, in those cases where it had not been conclusively proven that the claimant’s disability had resulted from his last exposure, all compensation was assessed against the Special Fund. The amendment as contained in Senate Bill 184 provided as follows: “In those cases where disability or death are not conclusively proven to be the result of such last exposure all compensation shall be paid out of the special fund for all claims filed prior to January 1, 1973; and 75 per cent shall be paid by the special fund and 25 per cent by the employer for all claims filed thereafter.” We do not believe that the provisions of Section 37 in any way deferred the effective date of this particular section of Senate Bill 184. To require apportionment where the last exposure occurred prior to January 1, 1973, would violate Section 19 of our Constitution. Cf. General Refractories Company v. Henderson, 313 Ky. 613, 232 S.W.2d 846 (1950). However, where a claimant was last exposed after January 1, 1973, any award made by the Workmen’s Compensation Board should be so allocated as to require the Special Fund to pay 75% of the award, while the remaining 25% should be assessed against the claimant’s employer. Maggard, in his brief, claims that because of the ambiguities of Section 37 there are six questions which ultimately must be answered by this court. Although we have answered them in the course of this opinion, for the sake of clarity and by way of summary, we set out these questions together with our answers: “(1) Do the 1972 Amendments, increasing benefits for permanent and total disability to $81.00 per week for life (KRS 342.730) apply to claims ‘filed’ on or after January 1, 1973, irrespective of the date of the last injurious exposure, or does this increase in benefits result only to workmen who had injurious exposure on or after January 1, 1973?” The increased benefits apply only to those workmen whose last injurious exposure occurred on and after January 1, 1973. The maximum amount of $81 will be subject to adjustment on the basis of the state average weekly wage as determined by KRS 342.143. “(2) Assuming that the increase in benefits results only to workmen who were injuriously exposed during the calendar year 1973, without reference to the date of filing, is the increase in benefits provided by KRS 342.730 totally deferred until expiration of the Federal Black Lung Program, without reference to the outcome of any Federal Black Lung Claim which a miner might file?” The increase provided by KRS 342.730 is totally deferred until expiration of the Federal Black Lung Program, and we are of the opinion that the outcome of a federal black-lung claim filed by a miner does not enter into the question of deferment. “(3) Assuming that the increase in benefits results only to workmen who were injuriously exposed during the calendar year 1973, without reference to the date of filing, does the increase in benefits effected by KRS 342.730 result to those workmen whose Federal Black Lung Benefits are ultimately denied and, if so, by what mechanical or procedural process should such claims be handled ?” The date of the last injurious exposure determines the amount of compensation payable, KRS 342.316(5), and the act provides no procedure by which a claimant who has been denied federal black-lung benefits might have his claim reopened for further consideration. “(4) Whether the increase in benefits is deferred at all.” As we construe Section 37, the increased benefits payable to black-lung claimants under the Kentucky Workmen’s Compensation Act, as amended by Senate Bill 184, are deferred for such a period of time as there is in existence a federal black-lung program. “(5) The extent of the employer’s liability.” Upon claims filed subsequent to January 1, 1973, where the last injurious exposure occurred after January 1, 1973, the award shall be assessed 75% against the Special Fund and 25% against the employer. “(6) Whether, in any event, the pre-1972 formula for determining total and permanent disability benefits, incorporated in KRS 342.095 (55% of 85% of the average weekly wage of the state as computed and provided in KRS 342.140), applied to the prevailing wage for the applicable year 1973 ($135.01 per week), is the appropriate formula for ascertaining weekly benefits payable to a workman whose last injurious exposure was in calendar 1973, resulting in minimum benefits of $63.00 per week for 425 weeks.” Section 37 of Senate Bill 184 does not in any way indicate that this formula as set out was not to be used in those cases where the injurious exposure occurred in 1973, even though an increase in black-lung benefits was deferred during such period as there was a federal black-lung program. So much of the judgment as upholds the findings of the Workmen’s Compensation Board to the effect that Otis Maggard was totally disabled as the result of pneumoco-niosis is affirmed. The remaining portion of the judgment is hereby reversed with directions that a new judgment be entered remanding the case to the Workmen’s Compensation Board for further action in conformity with this opinion. OSBORNE, C. J., and JONES, MILLT-KEN, PALMORE, REED and STEIN-FELD, JJ., sitting. All concur.

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Strother JOHNSON et al., Appellants, v. Maurice LOHRE and unknown Defendant or Defendants, Appellees. Court of Appeals of Kentucky. Feb. 1, 1974. As Modified on Denial of Rehearing May 3, 1974. Bernard J. Blau, Donald L. Johnson, Kaufmann, Jolly, Johnson & Blau, Newport, for appellants. Frank V. Benton, III, Benton, Benton, Luedeke & Rhoads, Newport, William B. O’Neal, Cincinnati, Ohio, for appellee Maurice Lohre. STEINFELD, Justice. This is an appeal from a judgment of the Campbell Circuit Court dismissing a complaint against Maurice Lohre and unknown defendant(s). On July 19, 1971, appellants, Mr. and Mrs. Strother Johnson, sued for damages resulting from injuries to Mr. Johnson during his employment at Interlake, Inc., on July 20, 1970. They alleged that his injuries were caused by the negligence of Mr. Lohre, a fellow-employee, and unknown defendant(s). Mr. Johnson sought his damages for physical injuries and Mrs. Johnson sought to recover for loss of consortium. The Johnsons caused summonses to be issued to Mr. Lohre and unknown defendant (s). The summons for Mr. Lohre was served, but there was no service of the other summonses. On August 12, 1971, Mr. Lohre filed a motion to dismiss the action against him, supported by an affidavit of his attorney, the accuracy of which is not questioned. It stated that Interlake, Inc., was and for some time had been subject to and was operating under the provisions of the Kentucky Workmen’s Compensation law; that both Mr. Lohre and Mr. Johnson were at all times affecting this litigation employees of that corporation; that each of said employees at the time of his original employment signed an agreement to accept and be bound by the Workmen’s Compensation law; and that an action was pending before the Kentucky Workmen’s Compensation Board whereby Mr. Johnson sought benefits for his injuries. No counter-affidavit was filed. On September 14, 1971, interrogatories to Mr. Lohre were propounded, which were objected to, and on September 24 a motion to strike the above-mentioned affidavit was filed. Three days later the same affiant made a similar affidavit which was filed. On September 28 a motion was filed asking the court (1) to require Mr. Lohre to answer the interrogatories, if not as a party then as a witness, so the motion to dismiss could be responded to, and (2) to strike the second affidavit. These motions were never ruled on. On October 28, 1971, an affidavit for appointment of a warning order attorney for the unknown defendant (s) was filed and the clerk made the appointment forthwith. On the same day, acting on the information contained in the two affidavits, the court dismissed the complaint as to Mr. Lohre. On November 2, 1971, the Johnsons moved the court to order Mr. Lohre, as a witness, to answer the interrogatories. Mr. Lohre objected on the ground that there was no issue unresolved in the case. He also took the position that the action as to the unknown defendant(s) was commenced only upon the issuance of the warning order, therefore it was barred by the statute of limitations. No action was taken on this motion. On December 10, 1971, a judgment was entered dismissing the complaint as to the remaining defendant(s) on the ground that the action was not timely commenced. On this appeal the Johnsons continue to claim that the affidavits of the attorney should not have been considered because they were not made by Mr. Lohre and because the contents are hearsay. CR 43.13(1) provides: “Affidavits authorized or permitted under these rules, or in any statutory proceedings, shall be a written statement or declaration sworn to or affirmed before an officer authorized to take depositions by Rule 28. If a party is absent from the county, or mentally incapable of taking an oath, or physically unable to attend before an officer, his agent or attorney may make such affidavit, unless otherwise provided by these rules or any statute. Such an affidavit shall state the absence or incapacity of the party and the capacity of the affiant.” Nowhere in the record is there a statement that Mr. Lohre was absent from the county or could not sign his own affidavit. However, the action was dismissed because the complaint failed to state a claim upon which relief might be granted. CR 12.02. This rule provides that if a motion to dismiss is made and matters outside the pleadings are presented, the motion shall be treated as one for summary judgment with supporting affidavits. Cr 56.02. The rule does not require that the affidavit be that of the movant. The affiant was competent to swear to the matters contained in the affidavits as the affidavits were made upon personal knowledge. CR 56.05. The trial court did not err in considering these affidavits as they supported the motion to dismiss Mr. Johnson’s claim against Mr. Lohre. KRS 342.015(1) provided that if the employer and employee are operating under the provisions of the Kentucky Workmen’s Compensation Act, the employer’s liability is limited to the compensation payable under the Act. The Johnsons claim that this statute violates Section 54 of the Kentucky Constitution which states, “The General Assembly shall have no power to limit the amount to be recovered for injuries resulting in death, or for injuries to person or property.” The original Workmen’s Compensation Act was held to be unconstitutional because of its compulsory aspects. Kentucky State Journal Co. v. Workmen’s Compensation Board, 161 Ky. 562, 170 S.W. 1166, L.R.A.1916A, 389, Ann.Cas.l916B, 1273 (1914), opinion modified, 162 Ky. 387, 172 S.W. 674, L.R.A. 1916A, 402. The Workmen’s Compensation Act which was later enacted had eliminated the compulsory features, therefore it was held not to abridge the constitution. Greene v. Caldwell, 170 Ky. 571, 186 S.W. 648 (1916). This Act made coverage purely elective and “Liability of the employer for benefits and the right of the employee to obtain them do not exist until they voluntarily accept it.” Plunkett v. Jones, Ky., 452 S.W.2d 373 (1970). Although the Act does not specifically say so, we have held that an employee may not recover at law from a fellow employee except in case of deliberate intent to injure. George Petro, Inc. v. Bailey, Ky., 438 S.W.2d 88 (1968). The act in force at the time of Mr. Johnson’s injuries was constitutional; the trial judge did not err in dismissing Mr. Johnson’s claim against Mr. Lohre. Mrs. Johnson’s claim against Mr. Lohre for loss of her husband’s consortium was dismissed, the court said, because she had no cause of action. It is now the law in this state that “ * * * a wife has a cause of action for loss of consortium of her husband resulting from an injury to the husband due to the negligent act of another.” Kotsiris v. Ling, Ky., 451 S.W.2d 411 (1970). KRS 411.145(2) provides, “Either a wife or husband may recover damages against a third person for loss of consortium, resulting from a negligent or wrongful act of such third person.” An issue raised on this appeal is whether the wife may recover for loss of her husband’s consortium from the husband’s fellow servant for negligence when the husband and his employer had elected to be covered by the Workmen’s Compensation Act. Other states have held that because of their Workmen’s Compensation laws a wife may not recover from her husband’s employer for loss of her spouse’s consortium. Larson’s Workmen’s Compensation, Vol. 2, Sec. 66.20. However, we find no indication that those tribunals were confronted with a constitutional provision such as Section 54 of the Kentucky Constitution. In Newman v. Gibraltar Coal Corporation, 350 F.Supp. 71 (W.D.Ky.1972), it was held that “ * * * a wife’s independent cause of action for loss of her husband’s consortium is barred when the husband/employee and his employer elect to proceed under the state Workmen’s Compensation Law.” Newman relies on Davis v. Solomon, Ky., 276 S.W.2d 674 (1955), in which a deceased employee’s personal representative brought a suit against an employer to recover damages for the wrongful death of the employee, which arose out of and in the course of the deceased’s employment. There, we held that the action was not maintainable. The reliance of the federal judge on the Davis opinion is understandable inasmuch as Davis stated, “The purposes of the Act would be defeated if independent actions to recover damages for injuries or death caused by a compensable accident were permitted.” However, Davis was an action by the personal representative of the employee’s estate and did not involve an action by a third party on an independent claim. Therefore, we do not consider the Davis opinion as being dispositive of the issue now before us. Mrs. Johnson was not claiming through her husband — on the contrary, her claim is an independent cause of action authorized by KRS 411.145(2) and our construction of the law in Kotsiris v. Ling, supra. An independent action was approved in Kentucky Utilities Company v. Jackson County Rural Electric Cooperative Corp., Ky., 438 S.W.2d 788 (1968). Cf. Ashland Oil and Refining Co. v. Bertram and Thacker, Ky., 453 S.W.2d 591 (1970). The statute of limitations is an affirmative defense which must be pleaded by the concerned and affected party. CR 8.-03. Lohre, who raised the defense, was not such a party. CR 4.07 (2) provides: “If the warning order attorney cannot inform the defendant concerning the action, he shall so report to the court and shall then make a defense by answer if he can. If unable to make defense, he shall so report.” Here, the warning order attorney’s report said he could make no defense on behalf of said defendants. The trial court erred in dismissing the suit as to the unknown defendants, therefore, it must rule on the demand that Mr. Lohre be required to answer the interrogatories. The judgment is affirmed in part and reversed in part for further proceedings consistent herewith. OSBORNE, C. J., and JONES, MILLI-KEN, PALMORE, REED and STEIN-FELD, JJ., sitting. All concur. . .The unknown defendants were the manufacturer and supplier of the steam pipe which burst, resulting in Mr. Johnson’s injuries. . The affiant also was an officer of Interlake, Inc. . This section was repealed, effective January 1, 1973, Acts 1972, Ch. 78, See. 36. . This statute became effective June 18, 1970. . “ * * ⅜ many compensation acts preclude an action by the wife of an employee from recovering damages for loss of consortium or services from injury or disease compensable under the act.” 101 C.J.S., Workmen’s Compensation § 980, pp. 452, 453. The Kentucky Act contains no such provision.

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Jo Nell TACKETT, Appellant, v. Thomas J. TACKETT, Appellee. Court of Appeals of Kentucky. Feb. 1, 1974. As Modified on Denial of Rehearing May 3, 1974. Dan Jack Combs, Combs & Combs, Pike-ville, for appellant. Scott Collins, Prestonsburg, for appellee. STEINFELD, Justice. Appellant Jo Nell Tackett and appellee Thomas J. Tackett, now both in their thirties, were married November 5, 1960. During the marriage two children were born; Jennifer and Thomas, Jr., now ages six and two years respectively. On August 13, 1972, Jo Nell took the children to Ohio and four days later Thomas filed in the Floyd Circuit Court a petition for the dissolution of the marriage and for custody of the children. A custody hearing was held December 8, 1972, and the court granted temporary custody of the children to Jo Nell, gave her the use of a 1963 Volkswagen, and ordered Thomas to pay her $30 per week for support. (Thomas had been paying Jo Nell at least $30 per week since she left for Ohio.) On December 12, 1972, Thomas filed the following request for admissions: “1. That Thomas J. Tackett, the petitioner, is or has blood type ‘B’ (Positive) ; and 2. That the respondent Jo Nell Tackett is or has blood type ‘O’ (Negative) ; and 3. That the infant, T. J. Tackett, Jr., has or is blood type ‘A’ (Positive); and 4. That there is no way, physically, genetically,- scientifically, and/or legally that the infant is or can be the child or physical offspring of the petitioner, Thomas James Tack-ett; and 5. That the child is in fact not the child of Thomas J. Tackett, the petition- Pertinent parts of Jo Nell’s answers follow: “REQUEST NO. 1 — * * * The respondent is without sufficient knowledge or information upon which to form a belief as to the truth of the statements contained in Request No. 1. * * *. ⅜ ⅜ ⅜ ⅜ * * “REQUEST NO. 3 — * * * She says that she is without knowledge or information sufficient to form a belief as to the blood type of T. J. Tackett, Jr., and that his blood type is not material to the issues herein. * * * She declined to admit Request No. 2 and denied Requests Nos. 4 and S. On January 10, 1973, Thomas again filed request for admissions as follows: “1. That Thomas J. Tackett, the petitioner, is or has blood type ‘B’ (positive) ; and 2. That the respondent, Jo Nell Tackett, is or has blood type ‘O’ (negative) ; and 3. That the infant, T. J. Tackett, Jr., is or has blood type ‘A’ (positive); and 4. That there is no way, physically, genetically, scientifically, and/or legally that the infant is or can be the child or physical offspring of the petitioner, Thomas J. Tackett; and 5. That the child, T. J. Tackett, Jr., in fact is not the child of the petitioner, Thomas J. Tackett.” This request for admissions was never answered. A hearing was held February 1, 1973, to decide who would have permanent custody of the children and how the property was to be allocated. On April 3, 1973, the court issued the decree, in pertinent part as follows : “1. The marriage is hereby dissolved and both parties are restored to the status of single persons. 2. Thomas James Tackett is awarded custody of the child, Jennifer, and Jo Nell Tackett is awarded the custody of the child, T. J., II. The mother shall have the usual and customary visitation rights, * * *. 3. Jo Nell Tackett is awarded the Volks-wagon automobile, and Thomas James Tackett is awarded the Chevrolet automobile. 4. Thomas James Tackett is awarded the house (together with the household goods and furnishings for the same), and the Sheepfield lot. 5. Thomas James Tackett shall pay to Jo Nell Tackett the sum of $4,500.-00, and the cost of this action, including an additional $400.00 in attorney’s fee, making a total of $900.00 to and for the respondent’s attorneys. 7. The court, in this difficult case, if he has erred, remembers that the question of custody may be re-examined should conditions change.” In its conclusions of law, the court stated in part: “There is a presumption that the child belongs to a couple who are married at the time of its birth. (KRS 406.011). However, being merely a presumption, it is subject to be overcome by proof. (Tarter v. Medley, Ky., 356 S.W.2d 255 (1962) ). In this instance the respondent had information from which she could have either admitted or denied the blood types and the scientific and legal effect thereof. Having failed to deny the request, the facts are taken as admitted. (37.02(2A) [(2) (A)]). Evidence not showing that the child was illegitimate authorized an order directing the father to support the child. (Wilson v. Wilson, 65 S.W.2d 694 (1933), 251 Ky. 522). The converse of this rule is that if the child is illegitimate then the marital partner not the parent of the child does not owe it support. Therefore, the petitioner does not owe the child, T. J. a duty of support.” Jo Nell appeals from this decree and seeks (1) a determination that Thomas is the father of Thomas, Jr.; (2) custody of Jennifer; (3) a more equitable distribution of the property, and (4) provision for the support and maintenance of herself and the two children. CR 36.01(2) in part provides: “An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he states that he has made reasonable inquiry and that the information known or readily obtainable by him is insufficient to enable him to admit or deny.” Because Jo Nell did not comply with the quoted part of CR 36.01(2) in answering the first request for admissions and because she failed to answer the second request for admissions, the trial court ruled that the matters contained therein are admitted. CR 36.01(3), 36.02, 37.02(2) (A). On the basis of these admitted matters and without any other proof on the subject, the court declared Thomas, Jr., to be illegitimate. “Though the presumption of paternity and legitimacy is one of the strongest known to the law, it is not conclusive but is rebuttable and may be overcome by factual evidence.” Tarter v. Medley, supra. The results of Jo Nell’s admissions are that Thomas has blood type “B” (Positive), that Jo Nell has blood type “O” (Negative), and that Thomas, Jr., has blood type “A” (Positive). Request 4 seeks an answer which would be only a conclusion, therefore Jo Nell’s denial of this request is inconsequential. In Simmons v. Simmons, Ky., 479 S.W.2d 585, at page 587 (1972), in which there was scientific evidence regarding blood-grouping tests, we wrote: “When the blood-grouping tests show that the child has a blood type different from both its mother and her husband, the husband is scientifically excluded as being the father of the child.” Summarizing State ex rel. Steiger v. Gray, Ohio Juv., 145 N.E.2d 162, (1957), it was written in Words and Phrases ■ Permanent Edition, Vol. 5, page 794: “ ‘Blood grouping tests’ are governed by the immutability of the scientific law of blood grouping and are conducted for the purpose of determining non-paternity and are based upon the scientific principle that the type of blood of a child is inherited from a combination of blood groups in the blood of its parents; they have often been called ‘the fingerprints of blood.’ ” The factors which are considered in blood-grouping tests are more than a determination of blood types, therefore the question of paternity cannot be resolved on a naked showing of blood type without “ * * * expert opinion because the conclusions * * * are based upon medical research, and involve questions of chemistry and biology with which a layman is entirely unfamiliar.” Arais v. Kalensnikoff, 10 Cal.2d 428, 74 P.2d 1043, 115 A.L.R. 163 (1937). Cf. Groulx v. Groulx, 98 N.H. 481, 103 A.2d 188, 46 A.L.R.2d 994 (1954). The trial court erred in resolving the question of whether Thomas was the father of Thomas, Jr., in the absence of substantial evidence establishing that fact. KRS 406.-111. A hearing, when demanded, should be held to determine the parentage of Thomas, Jr. At the conclusion of the hearing the trial court can then make a determination as to parentage and the custody of Thomas, Jr. The court awarded permanent custody of Jennifer to her father. At the conclusion of the parentage hearing, the judge can reevaluate this custody award, if necessary, in the light of Clay v. Clay, Ky., 334 S.W. 2d 909 (I960), and can reconsider the allowance for support. On the basis of the evidence the trial court did not err in its award of property or maintenance. There was a failure by Jo Nell to show that she was entitled to more than that which she was awarded. Colley v. Colley, Ky., 460 S.W.2d 821 (1970). The judgment is affirmed with regard to the division of property and as to maintenance, and is remanded for further action consistent herewith. OSBORNE, C. J., and JONES, MILLI-KEN, PALMORE, REED and STEIN-FELD, JJ., sitting. All concur. . Por a discussion regarding blood-grouping tests, see 46 A.L.R.2d 1000.

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James R. YOCOM, Commissioner, etc., et al., Appellants, v. William CURTSINGER et al., Appellees. Court of Appeals of Kentucky. Feb. 15, 1974. Rehearing Denied May 10, 1974. Gemma M. Harding, Louisville, Robert D. Hawkins, Chief Counsel, Dept, of Labor, Frankfort, Stuart E. Alexander, Louisville, for appellants. Robert M. Lindsay & John Frith Stewart, Segal, Isenberg, Sales & Stewart, Louisville, for appellees. Memorandum Opinion of the Court by Justice JONES, Reversing. Opinion ordered not to be published.

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Lowell Scott FIELDS, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. Feb. 1, 1974. Rehearing Denied May 24, 1974. Ed W. Hancock, Atty. Gen., Carl Miller, Asst. Atty. Gen., Frankfort, for appellant. Frank Reaves, Jr., Lexington, for appel-lee. Memorandum Opinion of the Court by Justice JONES, Affirming.*

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Dewayne T. JOHNSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. March 15, 1974. Rehearing Denied May 24, 1974. Nicholas W. Carlin, Louisville, for appellant. Ed W. Hancock, Atty. Gen., George Geoghegan, III,. Asst. Atty. Gen., Frankfort, for appellee. Memorandum Opinion of the Court by Commissioner GARDNER, Affirming. Opinion ordered not to be published.

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Daisy Lyons MARTIN and Lillian Lyons Williams, Appellants, v. ESTATE of Anna Katherine LYONS, Deceased, and the Six Executors of Said Estate, Appellees. Court of Appeals of Kentucky. March 15, 1974. Rehearing Denied May 10, 1974. Fred M. Goldberg, Goldberg & Lloyd, Louisville, for appellants. Oldham Clarke, Stites & McElwain, Louisville, for appellees. Memorandum Opinion of the Court by Special Commissioner J. DOUGLAS GRAHAM, Affirming.*