author: COLEMAN, Justice.

text:
    Oland ROBERTSON, Appellant, v. The RIG-A-LITE COMPANY, Inc., a Corporation, Appellee.
    No. 14577.
    Court of Civil Appeals of Texas. Houston.
    Sept. 23, 1965.
    Rehearing Denied Oct. 28, 1965.

      Joseph D. Jamail, John Gano, Houston, for appellant.
    The Kempers, W. L. Kemper, Sr., Houston, for appellee Rig-A-Lite Co., Inc.; Mark Martin and Royal H. Brin, Jr., Dallas, and David Bland, Houston (Strasburger, Price, Kelton, Miller & Martin, Dallas, and Barrow, Bland, Rehmet & Singleton, Houston, of counsel), on rehearing.
    Finis E. Cowan, Houston (Baker, Botts, Shepherd & Coates, Houston, of counsel), for Oil Production Maintenance, Inc.
   COLEMAN, Justice.

This is a suit for damages by reason of personal injuries sustained by appellant when an oil well perforating gun, which he was rigging up at a well site, exploded. Appellant was an employee of McCullough Tool Company. Oil Production Maintenance Co., Inc., also referred to as O. P. M., was the owner of the drilling rig. In answer to special issues the jury found that the sole proximate cause of the explosion was the negligent failure of the defendant to insulate a junction box, a part of the electrical system in use at the rig, in the manufacture and assembly thereof. The answers to all other issues submitted were consistent with a judgment for appellant. The jury found damage in a sum in excess of $500,000.00.

The trial court rendered a judgment for the appellee notwithstanding the verdict. Appellee’s motion alleged as grounds for such action that there was no evidence of probative force to justify the jury findings and that there were no facts introduced into evidence which would support any legal theory of recovery.

Appellant submits that the evidence fully supports the jury findings and that the facts found require the entry of a judgment in favor of the appellant. By cross-points appellee contends that the answers made by the jury are so contrary to the weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.

In support of the judgment of the trial court appellee contends that there was no evidence that in the process of manufacturing and assembling the junction box installed at a position under the floor of Rig U-15 it negligently failed to insulate the box. A junction box, which was introduced into evidence, is a box 3" in width and 9" in length constructed of heavy aluminum open on two sides and with holes at both ends. The box is designed for plates of the same material to be attached to the open sides over water-tight gaskets by six screws. On each of the plates are two openings in which are fitted female electrical outlets, protected by metal covers attached to the plate by chains. When the covers are removed four appliances or extension cords can be plugged into the junction box. An insulated cable carrying two lines, one negative and the other positive, composed of many copper wires, enters the junction box at one of the holes in the end of the box. The two lines continue through the box and exit at the other end into a similar cable. Inside the box a smaller line is spliced into each of these lines to supply current to the outlets. The splice is soldered to secure stability and then is insulated with rubber or plastic tape over which is applied friction tape. The holes through which the cables enter and exit from the box are protected by hollow metal bolts and rubber gaskets. The cables are short and one terminates in a female plug, the other terminating in a male plug, both protected by heavy metal covers fitted with gaskets. These short cables are known as “pig-tails” and the length may vary on different junction boxes. Metal clamps attached to the box by screws are provided as a means of fastening the box to a rig member.

Within one or two days after the explosion in which appellant was injured, a witness, sent by appellant’s employer to investigate certain aspects of the electrical system, and who qualified as an electrical expert, by the use of a megohmmeter, found that a junction box located at position A, which was under the floor of Rig U-15, had an insulation resistance reading practically of zero and that another box had a reading of 800,000 ohms, indicating no resistance at Box A and less resistance than was proper at the other box. As a result of his tests he determined that no circuit other than the one going under the derrick floor showed low resistance. Other circuits went up the derrick and to the light near the end of the catwalk. He then removed a plate from the box at position A under the floor and found dampness and droplets of water inside the box. He also found that both the rubber tape and the friction tape were loosely and inexpertly applied around the splice. He testified that the tape should be applied tightly and that successive layers should overlap and bond •securely to the previous one and that this was not so applied. The tape would not stretch and there was no indication of deterioration, or that the box had in any manner been altered or that any work had been done on it. It was his opinion that the loose tape on the splice, in connection with the moisture in the box,* charged the derrick members with an electric potential of 115 volts, which would do no damage until the electrical path from Box A was completed back to the other conductor to the light plant source. He testified that Junction Box “A” was bolted to a rig member, and that it was energized because of the defective insulation and that all metal members of the rig connected with it would become conductors. However, he testified that a person touching any of the rig members would receive no electrical charge unless he completed a path to the other conductor. He gave his professional opinion that some or all of the members of the derrick were electrically charged from one side of the circuit, and that if the insulation in Junction Box “A” had been what it should have been, the derrick members would not have been electrically charged. He testified that when he made his investigation the derrick had been moved from the location at which the explosion had taken place, but that the derrick and its equipment were set up just as before.

Other testimony shows that the electrical system was specially designed by appellee for Rig U-15 and that while the junction boxes were usually placed at the same position each time the rig was moved to a new location, this was not invariably true. While it appears that the electrical system is removed from the rig when it is dismantled for moving, it does not appear that the junction boxes are disconnected from the electric cables. While the junction boxes appear to be interchangeable, differing only in the number of outlets and, possibly, length of pig-tails, there is no evidence that either on this particular occasion, or as a general rule, after the rig was moved the boxes were replaced in the system at random, or moved from one circuit to a different circuit. There was testimony that the junction boxes go back basically in the same places.

Another person employed by the McCullough Tool Company investigated the accident before the rig was moved. He also qualified as an electrical expert. He checked the truck and equipment used in connection with the perforating gun, and found that all safety precautions had been taken and that all safety devises were in place, and testified that the explosion could not have been caused by electrical energy from the power source in the truck. He found that the gun had been hooked up to the long electric cable carried in the truck and attached to a power source in the truck. This was a cable so designed and of such length as to be capable of lowering the gun to the bottom of the oil well. Several safety features were shown to be present which were designed to prevent the passage of electrical energy through the line from the power source prematurely. There is no evidence that the explosion was caused by electricity from this source.

The gun itself is about ten feet long and, at the time of the explosion, had been placed in the metal lubricator in which it is lowered into the well. It is composed of a number of packets of a chemical powder, or charges, designed to be exploded with a blasting cap in the bottom, or “bull-nose,” of the gun. The blasting cap is designed to he detonated by an electric charge.

In his investigation this witness located the point of the explosion on the derrick floor. He examined the gun and “found that the bottom part of the gun had some electrical arc exposed to it like from a welding torch or something of that nature, and upon further investigation it was found to have great electrical potential between the gun and a light fixture which showed to have enough voltage available to fire this gun.” He also checked the length of the gun, the position of the gun, the point of the explosion, and the location of the light pole, which was a metal pole inserted in the ground. He checked the pole with a volt meter and found it to be charged with 115 volts DC. It was his opinion that the gun rolled over as appellant worked on it, touched the pole, and received a sufficient charge of electricity to cause the blasting cap to explode. In the course of his investigation he found voltage potentials between a number of places along the pipe rack, rig floor and catwalk, which could have caused the gun to fire, but it was his opinion that the electric potential in the light pole was the actual cause of the explosion. He testified that if one standing in the area of the light pole touched it, he would receive no shock, but that if, at the time he touched it, he was also touching the line to the perforating unit, the gun, or the lubricator lying on the catwalk, he would probably be killed. He testified that the electricity in the pole had to be the result of a short in one of the junction boxes in the power source line, but that he made no investigation to determine which box was defective. This witness further testified that he supervised a test made under the same conditions as were present at the time of the explosion, using the same type of Mack jet equipment and the same voltage and the same type of cap and “we have been able to fire this cap by setting up this potential.”

Joe Willson was employed by Oil Production Maintenance, Inc. to work in their shop some time in 1947. For some years prior to 1960 he was shop foreman. He testified that he did not remember ever ordering any component parts for junction boxes from Rig-A-Lite and that he had never repaired a junction box prior to 1960, and that so far as he knew no one else assembled component parts of junction boxes in or around the Oil Production Maintenance shop, and that he did not think it possible that boxes were assembled by Oil Production Maintenance because of the shop setup. No junction boxes were repaired under his instructions prior to 1960, and he knew of no one else working for O. P. M. who would have instructed anyone else to make such repairs. He testified that junction boxes were repaired by Rig-A-Lite, and that he knew of no one else who did any repairs at all on the junction boxes.

He testified that junction boxes were sent in for repair by employees on a rig on occasion in the company truck, and that he would send them to Rig-A-Lite, without making any inspection, with instructions to repair them. The only specific instruction he ever gave Rig-A-Lite concerned the length of the “pig-tail”. The repaired junction box would then be sent to the next rig requesting a junction box. O. P. M. had seven rigs. He further testified that if the component parts were bought from Rig-A-Lite the wiring would be done and the receptacles taped by Rig-A-Lite. He further testified that prior to 1962 “we did not buy anything other than Rig-A-Lite. We bought all Rig-A-Lite boxes, strings and works up until that time.”

Willson was shown several delivery receipts which he or other O. P. M. employees had signed and testified that based on the information contained there it was probable that someone had repaired boxes since the items shown on the receipts were parts of junction boxes, but that they were not repaired in the shop. He did not know whether mechanics at the rig repaired boxes, but this might have been the practice before he came to O. P. M.

There was other testimony to the effect that the employees on the rigs made no checks or inspections of the interior of the junction boxes and that the only way they knew when one was defective was when the lights would go off. There was testimony from a Rig-A-Lite employee who worked at assembling the junction boxes that they were water-proof if the protective covers provided for the sockets were in place. He testified that the plugs provided for use in the sockets were also equipped with protective metal covers which made the box water-proof when in use. He testified í-¿at when they made the splice on the n lines, they were made real tight so there would be no vibration and that they then taped it tight. He testified that if it wasn’t taped tightly and water got on the splice it would probably burn the wire in two or cause a short, and that if it shorted out the electricity would be uncontrolled, and a dangerous situation created.

Lemmons, a witness called by Rig-A-Lite, had worked on Rig U-15 since 1957. He testified that the electrical equipment, including the “insides” of junction boxes, deteriorated pretty frequently, particularly in wet weather, and that his attention would normally be called to a bad junction box by reason of the lights going out or dimming. He testified that when junction boxes burned out, they would be replaced by repaired ones, and the burned out box would be sent to the company yard “and they would repair it.” When the rig was moved most of the electrical cable and equipment was left attached to the derrick except that in the top of the derrick and the line going out the catwalk, and to the light pole. When the derrick was erected at a new location the lighting system, wires and boxes were placed as nearly in the same position as the men could place them. He testified that caps would be missing from some of the junction boxes and that sometimes the caps were not replaced after the box was in use, and that this happened once or twice a week. When he saw a box with the cap off, he would screw it on. He testified that he had repaired the inside of a junction box by rewiring and taping it after the accident, but not before, and that he had seen boxes repaired in the company yard, but not before 1962. He also testified that after the accident while standing on the ground he had touched the light pole, but had not been shocked. The last time he remembered replacing a junction box on that rig was about three months before the accident. He testified that there was no occasion to look inside a junction box at the rig. He testified that there was no way to look at one of the boxes and tell how old it was or when it was delivered to the rig. He testified that so far as he knew prior to the accident there was nothing wrong with the wiring or electrical system of the rig and that he had noticed no defects during the three or four weeks before the accident.

The witness Wyatt, called by Rig-A-Lite, started working for O. P. M. as a tool pusher. In 1947 he was made drilling superintendent in charge of all rigs. Rig U-15 was acquired in 1947, and he remained drilling superintendent in supervisory charge of Rig U-15 from that date to and including the date of the accident in 1960. He was not able to testify whether any one junction box with which the rig was equipped in 1947 was still in use without having been repaired in 1960, but based on his general knowledge of and experience with lighting equipment, he did not think it probable that any one of the original boxes would have been on Rig U-15 on May 23, 1960, without having been repaired. He had never seen a junction box repaired at the rig, or at the O. P. M. shop. He testified that the men are instructed to take particular care of the light wires and junction boxes and he believed that they did, but occasionally caps were left off the junction boxes when no plugs were in the receptacles, as on any oil rig. He testified that diesel oil, drilling mud containing chemicals and water were used around the rig and practically all drilling rigs; that there was considerable vibration around all drilling rigs; and that electrical equipment did deteriorate. He testified that all lighting equipment was purchased from Rig-A-Lite and that junction boxes should last for a period of years; that when they bought a new junction box they would no more take it apart to check it than they would a new electric drill. He testified that he was reasonably sure other junction boxes were put on the rig and that he thought they would be new boxes. It was his testimony that Willson handled the repair of junction boxes and that the general procedure was to send them to Rig-A-Lite, who would make whatever repairs were needed and then send O. P. M. an itemized bill for parts and labor.

He testified that perforating guns are used on all oil wells except dry holes and that because of the danger presented by the use of explosives and inflammable materials around oil rigs specialized equipment designed to minimize the risks was purchased and used. He testified that the crew of the U-1S were as careful with the electrical equipment, particularly in regard to replacing caps on the junction boxes, as ordinary roughnecks working in the oilfield normally are.

Smith, an employee of O. P. M., was called to the stand by Rig-A-Lite and testified that during drilling mud would come out of the drill pipe and flow over on the floor and that this mud would be washed off with a water hose. This water would get on some of the junction boxes and if the caps were off, as they sometimes were, while the water could not flow into the boxes, it would get damp inside them. When a junction box went out, he would take it loose where it was spliced into the main cable and send it to the shop. He testified that there was no way of telling whether the boxes were new or old. He said that the electrical system on U-1S, so far as he knew from working on it, was in perfect condition and that it was kept in that condition. He had worked on U-1S for two years prior to the accident and he had never repaired a junction box at the rig. He was in charge of maintaining the electrical system at the time of the accident. He had worked on other rigs and for other companies and it was his opinion that the men on U-15 put the caps on the boxes as quickly and as carefully as they could under the circumstances existing in the oil fields.

Mr. Sands, a safety engineer for O. P. M. at the time of the accident, testified that after the accident he procured the junction box pointed out to him as being the one taken from the light pole. He found that the interior of this box was in “surprisingly” good shape and saw nothing to indicate that it was defective, but he found shrapnel-like pieces of metal which pierced the rubber sheath covering the conductor wiring and appeared to be imbedded in the wiring itself. There were a number of pieces of this shrapnel, which could have formed an electrical path from the inside of the cable to any metal it might have touched on the outside. It might be noted that the Mack jet gun perforated oil well casing with hot gases rather than bullets.

Oland Robertson, appellant, testified that he had little formal education and had always supported himself and his family by manual labor. At the time of the accident he had a steady job with McCullough Tool Company in the capacity of rigger and operator. He described the perforating unit and gun with which he was working at the time of the accident, detailing the safety devises with which it was equipped and the safety precautions which he took. Among other precautions he grounded the truck to the rig and grounded the collar locator, which was attached to the cable from the truck, and to which the gun was attached. The wire cable was suspended from the derrick by means of “shivs” and was scattered all over the derrick floor. He testified that no one hit or bumped the gun and that it would withstand a certain amount of rough handling since it was delivered to the rig over rough roads in the back of a pick-up truck, and necessarily bumped the sides of the cas ing when it was lowered into the well. He had never known of a Mack jet gun being detonated by any means other than an electric charge. Immediately before the accident he was on his knees on the catwalk putting the pack-off in the lubricator when he heard a “sizz”, looked up and saw sparks and the explosion occurred immediately. He does not think that the gun hit the light pole, but that it did contact a metal member of the catwalk or pipe rack. One of his knees was on the wood floor, the other on an iron railing. The lubricator and gun were lying flat on the floor. He was pushing a rubber into the pack-off head at the time of the explosion. The bottom of the gun, at which point the fuse or “bull-nose”, is exposed, was pointed in the general direction of the light pole. He could not remember whether the gun slipped or rolled, and did not know whether it touched the light pole.

The testimony of Edwin F. Osborne, Jr., the President of Rig-A-Lite, Inc., was presented at the trial. In summary, he testified that the junction boxes sold by his company were essentially just like, they were the first time he saw them. He began his employment with the company in 1955. No single component of the box was actually manufactured by Rig-A-Lite. The company procures from different sources the cast aluminum housing, covers, nuts, rubber grommets, receptacles, lead wire, splicers and tape and from these materials assembles the finished product. The gaskets and gasketed covers are used to keep the boxes dry inside because water is an excellent conductor of electricity. The splices inside the junction box are wrapped with tape designed to insulate against moisture. He knew that uncontrolled electricity is dangerous and that if the Rig-A-Lite equipment should be defective it might permit electricity to escape from its designed channels. Most of the equipment sold is designed for specific drilling rigs. He knew that at the site of old field drilling operations explosives and explosive materials are often kept and used, The company had no specific procedure for safety checks for the equipment manufactured. He knew that perforating guns were used on oil wells, but did not know how they operated. An employee of the company applied the insulating material to the splice and he was supposed to test each item for proper and safe operation. The foreman was supposed to check to see that the system worked and there were no obvious shorts that would burn out the system. He knew that the lighting systems on oil rigs had to be special equipment because of possible exposure to all types of inflammable materials and highly explosive situations. The company advertised the equipment as being vapor-tight, explosive-proof and water-tight.

There is testimony that replacement junction boxes on Rig U-15 were installed by the motor man, who was not necessarily or customarily an electrician. This employee would splice the pig-tails into the wires in the system’s cable and then apply a protective wrapping of tape. There was also testimony that tape, after exposure to the weather, chemicals used in the drilling mud, and water used to wash off the platform, would deteriorate and sometimes become loose.

Appellee produced the testimony of Mr. Scott, a mechanical engineer, and of Mr. Berman, an electrical engineer, hired by it to advise its attorneys on the technical aspects of the case and to conduct certain investigations and tests. The testimony showed them to be well qualified as experts in the field of electricity. Their testimony generally supported the proposition that the evidence failed to show the manner in which, assuming an electrical potential in the derrick members, the circuit was completed, in which event the defective box could not have been a cause in fact of the explosion. There was also testimony that the electrical energy from the derrick, assuming a closed circuit, would not explode the gun unless it energized the cable which was designed to convey an electrical charge to the gun and that since the inner wire of this cable was insulated from the outer wire, that circuit would not be completed by a charge applied to the cable or the gun and no explosion would result. Tests were conducted with a similar cable and an attached fuse which, it was testified, corroborated this testimony. Scott testified that the gun could be set off by a sudden blow of considerable force; by a transmitting radio at the rig, or microwave radio stations, or by galvanic action, a chemical reaction between the gun, the drilling mud, and the pipe, but it would require a leak in the insulation to establish a circuit, or from a lightning flash even at a distance of several miles. He testified that the outer steel cable used to lower the gun into the well was a good conductor of electricity and if the cable was draped around the rig, there were many ways a circuit could be completed in the outer armor, but it was his opinion that unless there was a defect in the insulation of the cable that would permit the involvement of the wire inside the cable thereby energizing the firing circuit, no explosion would occur. He could not testify that there was any lightning on the occasion in question or that galvanic action did combine with a leak in the insulation of the line to the gun. It might have been exploded by an induced current from a parallel conductor carrying a high frequency current. It was Mr. Scott’s testimony that an outside source of electricity could not involve the firing circuit unless the inner wire of the gun cable was defectively insulated, and that such an outside source of electric power could not detonate the gun unless it activated the firing circuit. He then performed an experiment with a flash bulb that illustrated his testimony. Using a 130 volt battery, he caused an arc to be formed in the outside circuit of an armored cable, to which a flash bulb was wired by arcing on the lead of the bulb and the bulb did not light. Then by activating the circuit to which the bulb was attached the bulb lighted and burned out. He testified that the conditions of the experiment were electrically the same as on the occasion of the accident. He testified that radio frequency and the energy generated by induction would energize the firing circuit without there being a defect in the insulation of the inner wire in the cable. He could not testify that the impact force of the gun rolling against the light pole would cause it to explode without knowing the impact force, and without knowing the qualities of the explosives contained in the cap. Similarly, without knowing the amount of electrical energy caused by radio present at the time of the explosion, he could not testify that radio had anything to do with the explosion. Mr. Berman testified generally to the effect that it was his opinion that the junction box had nothing to do with the explosion since he did not know how a circuit was completed.

We must consider the evidence in the light most favorable to the verdict, disregarding all conflicts in the evidence, and indulging every intendment and inference reasonably deducible from the evidence in favor of the verdict of the jury. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194; Le Master v. Fort Worth Transit Company, 138 Tex. 512, 160 S.W.2d 224; McAfee v. Travis Gas Corporation, 137 Tex. 314, 153 S.W.2d 442.

There is evidence that junction box “A” contained defectively insulated wiring and that as a result of this defect, and an accumulation of moisture inside the box, rig members were energized. There is expert opinion testimony that if the cable to the perforating gun was draped around the rig, there were many ways the circuit could be completed. The testimony is undisputed that the cable was draped around the rig. There was other expert opinion testimony that the defectively insulated box caused the rig members to be energized; that a circuit was completed resulting in an electrical arc on the fuse of the gun causing the explosion. There was testimony that an experiment on the same type gun under the same conditions resulted in an explosion. Appellant testified to a “sizz” noise and to seeing sparks before the explosion. There was testimony that there was evidence of arcing on the metal covering of the cap.

Special Issue No. 1, on which liability must be predicated, reads: “Do you find from a preponderance of the evidence that the Defendant, Rig-A-Lite, Inc., in manufacturing and assembling the junction box installed at position A on the Rig U-15 failed to insulate said box * * (emphasis added)

The evidence is undisputed that it is not probable that any of the junction boxes purchased as part of the original lighting system were in use at the time of the accident unless they had been repaired. There is evidence that all repairs were made by Rig-A-Lite, Inc., but the issue does not inquire about a repaired box, but about a box manufactured and assembled by ap-pellee. The evidence shows that the wiring requiring insulation was manufactured, assembled and insulated by appellee and that the insulation in this particular box was defective. The inquiry appears to be directed to the time when the box was manufactured and assembled.

The question, then, is whether there is evidence from which an inference can be drawn that the defectively insulated wiring was present in the box when it was originally purchased in view of the testimony that the original boxes had probably been repaired; the testimony that boxes were sent to Rig-A-Lite for repair; and that replacement parts suitable for repairs were purchased by O. P. M. There is no direct testimony from which it can be determined when any specific box used on Rig U-lS the night of the accident was purchased or that any specific box had been repaired or had been replaced by a new box.

There is evidence that the tape used for insulation on the box at position A showed no signs of deterioration and that the box showed no signs of having been altered or of having had any work done on it. There is evidence that electrical equipment will deteriorate; that the “insides” of the boxes deteriorated pretty frequently, particularly in wet weather, and that the tape deteriorates first. There was testimony that the vibrations typical of the operation of a drilling rig cause nuts, bolts and screws to become loose, necessitating frequent tightening. An inference could be drawn from this testimony that the box in question was a new box rather than a repaired box. There is evidence that on November 24, 1959, about five months before the accident, a two-hole box was purchased from Rig-A-Lite, Inc. by O. P. M. for Rig U-15. There is evidence that a junction box was replaced on Rig U-15 about three months before the accident. The evidence does not show how many “holes” or receptacles the box in question contained and does not eliminate the possibility that it was a two-hole box. We find, therefore, that there was some evidence of probative value requiring the submission of Special Issue No. 1 to the jury.

Without again setting out the evidence we find it sufficient to require the submission of Special Issue No. 2 concerning proximate cause, and Special Issue No. 9, the damage issue. The trial court erred in rendering a judgment notwithstanding the verdict since a directed verdict would not have been authorized under the facts. Hicks v. Matthews, 153 Tex. 177, 266 S.W.2d 846.

Appellee urges that it could not reasonably have foreseen any injury to appellant in which event there would be no evidence to support a finding of proximate cause. The injury was of such a general character are might reasonably have been anticipated, and the injured party was so situated with relation to the wrongful act that injury to him or to one similarly situated might reasonably have been foreseen. This test for proximate causation was approved in Carey v. Pure Distributing Corp., 133 Tex. 31, 124 S.W.2d 847.

In International Derrick & Equipment Co. v. Croix, 241 F.2d 216, the United States Court of Appeals, Fifth Circuit, held that Texas follows the rule set forth in Restatement, Torts, § 395, as follows:

“ ‘A manufacturer who fails to exercise reasonable care in the manufacture of a chattel which, unless carefully made, he should recognize as involving an unreasonable risk of causing substantial bodily harm to those who lawfully use it for a purpose for which it is manufactured and to those whom the supplier should expect to be in the vicinity of its probable use, is subject to liability for bodily harm caused to them by its lawful use in a manner and for a purpose for which it is manufactured.’ ”

It is obvious from the record that appellant was attempting to predicate liability on this theory of the law and we have held that sufficient evidence was presented to require submission of the case to the jury. We cannot sustain the judgment of the trial court on the theory presented by ap-pellee’s second Counterpoint.

In addition, appellant plead:

“The wiring and lighting fixtures, and junction boxes manufactured and furnished by the Defendant had been installed upon metal pipe and by reason of defective insulation of the wiring or lighting fixtures, or junction boxes the gun prematurely discharged. * * *
“The injuries and damages suffered by your Plaintiff which were proximately caused by the negligence of the Defendant, * * * in manufacturing and furnishing defective and poorly insulated wiring, lighting fixtures and junction boxes * * * caused him physical pain and mental anguish. ijc >}« % »

This pleading was sufficient basis for the submission of issues to the jury based on the evidence that all of the spliced wiring used in the junction boxes, whether sold as a unit installed in a box, or for installation in a box in making repairs, was manufactured by appellee complete with insulation and that the wiring found in the box in question was improperly insulated.

While issues based on this evidence were not requested or submitted by the court, the pleadings and evidence raised issues which a jury might have found in favor of appellant under the evidence to constitute a basis for holding appellee liable in damages. On such a state of facts a judgment non obstante veredicto is not proper even though the only ground of liability presented to the jury was supported by no evidence. Hicks v. Matthews, 153 Tex. 177, 266 S.W.2d 846.

By crosspoints appellee asserts that the answer made by the jury to Special Issue No. 1 is contrary to the great weight and preponderance of the evidence and that the answer made to Special Issue No. 9 is so contrary to the great weight and preponderance of the evidence “as to be manifestly unjust and clearly wrong in the exces-siveness thereof.”

The exact number of junction boxes on Rig U-15 was not established, but it appears that there were six or more. O. P. M. owned seven rigs, all of which were equipped with these boxes. The evidence shows that repaired boxes were not returned to the rig from which they were taken as a rule. There is evidence from which the jury might well have concluded that repaired boxes were in use on Rig U-15. There is no testimony that the specific box located at position A had been repaired either by O. P. M. or Rig-A-Lite, Inc. In this state of the evidence, we are not prepared to hold that the answer made by the jury to Special Issue No. 1 is so contrary to the great weight and preponderance of the evidence as to be clearly wrong.

The evidence shows that appellant lost both hands and one leg below the knee as a result of his injuries. He never lost consciousness. A long period of time elapsed before he received medical attention. It is obvious that he suffered great pain and mental anguish. He testified to phantom pain in his missing members. The jury could consider his disfigurement as an element of mental anguish. He was 31 years of age, with a life expectancy approaching 36 years. He had little formal education. He was married and had small children. He testified that he was not proficient in the use of his wooden leg and often fell, and was not able to engage in his accustomed recreational activities. He was not proficient in the use of the metal appliances fitted to his arms and could not care for all his own personal needs. His employer made a job for him answering a telephone, continued his salary, including him in a general raise in pay, but his future employment was not guaranteed. He was earning approximately $6,000.00 yearly before the accident. The jury could properly award a large amount for loss of earning capacity. The amount of an award for mental anguish and physical pain and suffering is largely left to the discretion of the jury. We cannot say that the answer of the jury to the damage issue is so contrary to the great weight and preponderance of the evidence as to require the granting of a new trial. The testimony concerning damages was not presented, so far as the record reflects, in a dramatic or inflammatory manner, and we find nothing in the record to indicate that the jury disregarded the evidence and based their answer on prejudice, passion or sympathy. Usually a verdict which is excessive can be cured by requiring a remittitur. The issue of the excessiveness of the award is not raised by the point of error, and we express no opinion on that issue. Collins v. Smith, 142 Tex. 36, 175 S.W.2d 407.

The jury found no other act of negligence, either on the part of appellant or of any third party. We find nothing established by the record as a proximate cause of the accident other than the issue on which appellee’s liability is predicated. The answer made to Special Issue No. 3 concerning sole proximate cause is supported by evidence and is not contrary to the great weight and preponderance of the evidence.

Appellee has stated' in its brief that in the event this cause is reversed, it desires to have the cause remanded to the trial court in order that it might have the opportunity to present a motion for new trial setting up jury misconduct. This procedure is required by Rule 324, Texas Rules of Civil Procedure. Farias v. Gaitan, Tex.Civ.App., 312 S.W.2d 273, error ref., n. r. e.

The judgment is reversed and the cause remanded with instructions that the Court enter judgment for the plaintiff on the jury’s verdict, and for further proceedings in accordance with Rule 324, T.R.C.P., as amended September 1, 1957.

Reversed and remanded with instructions.


source: Caselaw Access Project

author: LANGDON, Justice.

license: Public Domain

text:
    Merle G. HUFF, Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, Appellee.
    No. 16657.
    Court of Civil Appeals of Texas, Fort Worth.
    Sept. 24, 1965.
    Rehearing Denied Oct. 29, 1965.

      Lowell E. Dushman, Fort Worth, for appellant.
    Stone, Parker, Snakard, Friedman & Brown, and Lawton G. Gambill, Fort Worth, for appellee.
   LANGDON, Justice.

This is a workmen’s compensation case.

On February 17, 1962, appellant executed a notice of injury and claim for compensation and thereafter filed it with the Industrial Accident Board, hereinafter referred to as the Board. He asserted that he had been injured on January S, 1962 and described the accident and his injury as follows : “I was lifting some heavy boxes and got a right hernia.” On May 3, 1962, the Board entered its final award. Appellant gave timely notice of appeal and instituted this suit on May IS, 1962. In his original petition he described his injury as “a hernia and other internal injuries.” On November 10, 1964, lie filed his first supplemental petition. Therein for the first time he asserted that as a result of the alleged accident he sustained not only a right inguinal hernia but also injuries which he described as follows: “ * * * an injury consisting of the stretching, weakening and tearing of the flesh, muscles and ligaments of the groin and a cervical and upper dorsal muscle strain injury. * * * ” These last two alleged injuries will hereinafter he referred to respectively as the left groin injury and neck strain. Appellee excepted to the assertion of the groin injury and neck strain on the ground that the court lacked jurisdiction since neither of said injuries had ever been presented to and acted upon by the Board. The court sustained the exceptions and ordered the allegations pertaining to such injuries stricken. On November 16, 1964, the case was tried to a jury on appellant’s claim for right inguinal hernia. Based upon the jury’s verdict that appellant had not sustained a hernia on January 5, 1962, and that his hernia had existed in some degree prior to that date, the court rendered and signed a judgment in favor of appellee on November 19, 1964.

We affirm.

Appellant’s points of error one through six complain of the court’s action in sustaining the exceptions to the assertion of groin and neck strain injuries and refusing to permit the jury to hear testimony relating thereto. The seventh point attacks the court’s action in rendering judgment on jury findings because same were in irreconcilable conflict. The eighth point contends the court erred in sustaining exceptions to the introduction of a medical record, and points nine and ten urge error for the court’s failure to grant a new trial because the jury’s answers to special issues Nos. 2 and 5 are so against the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust.

Appellant testified: he first noticed pain in his back and shoulders during the afternoon of the day the alleged accident occurred and that he was still having trouble with his neck and shoulders. Thus, he knew at the time he described his injury in the Notice of Injury and Claim for Compensation that he not only had a hernia but also pain in his back and shoulders. He chose not to mention the back and shoulder complaint and claimed compensation only for the hernia. Appellant’s oral deposition was taken on September 21, 1962, sometime after he had seen Dr. Gerald King, complaining among other things, of pain in his arms, shoulders and spine. In the deposition taken some 4 months after he instituted suit the appellant testified, under oath, that a hernia was the only injury which he had received in the alleged accident and that he had seen Dr. Billy N. Gray (his family physician for ten years) on several occasions for “colds” and a “little sore throat” and other “minor things” since the accident. There was no testimony that he had been treated by Dr. Gray for any complaint to his arms, shoulders, neck or back since the accident. The appellant’s reply to interrogatories on October 23, 1964, reflected that he had not since April 13, 1962, complained to or been treated by a physician for any strain or pain in his arms, shoulders, neck or spine although during such period of time he admittedly had been to five different doctors.

Under this record he was not treated for any such condition prior to April 13, 1962.

Appellant now contends that the court should consider the letter written to the Board on April 17, 1962, by attorney John W. Laird and the April 11, 1962, medical report of Dr. Gerald King attached thereto as an amendment enlarging his claim so as to include the alleged neck strain. Admittedly he never filed a claim for the alleged left groin injury. The attorney’s letter to the Board did not request appellant’s claim be amended to include not only the hernia but also the neck strain, nor did it state that the appellant was then contending that the neck strain was caused by the alleged accident of January 5, 1962, or that appellant sought compensation both for the hernia and the neck strain. Dr. King in his medical report states that two weeks after the alleged accident appellant was examined by Dr. Gray who found only a rupture. This evidence that appellant’s so-called neck injury was not caused by the alleged accident is consistent with his failure to assert such an injury in his compensation claim and with his admission that his only injury was a hernia.

“It is well settled that a claimant in a workmen’s compensation case must plead and prove that he has presented a claim before the Industrial Accident Board which has been acted upon by the Board, and the claim asserted in the District Court-must be the same as that filed with and acted upon by the Board. Unless all these conditions are met the court does not have jurisdiction. Hartford Accident & Indemnity Co. v. Choate, 126 Tex. 368, 89 S.W.2d 205; Mozley v. American General Ins. Co., Tex.Civ.App., 324 S.W.2d 925; Stratton v. Gulf Casualty Co., Tex.Civ.App., 53 S.W.2d 518.” Solomon v. Massachusetts Bonding and Insurance Co. (San Antonio Civ.App., 1961, refused), 347 S.W.2d 17.

Appellant’s claim clearly sought compensation for a hernia only. The purpose of the attorney’s letter was to furnish the Board with medical evidence to substantiate the hernia claim and to request that the claim be set for hearing. The Board considered appellant’s claim to be limited to hernia. It is clear from the order that the Board considered and acted only upon the hernia claim.

We think the court’s action in sustaining exceptions to the pleadings was correct. It naturally follows that testimony concerning the alleged injuries which were eliminated from the pleading by such action would be improper.

A hernia is a specific injury. Lewis v. American Surety Co., 143 Tex. 286, 184 S.W.2d 137 (1944); Texas Employers Ins. Ass’n v. Shackelford, 139 Tex. 653, 164 S.W.2d 657 (1942); and Texas Employers’ Ins. Ass’n v. Tally, 132 Tex. 547, 125 S.W.2d 544 (1939). If a compensation carrier wrongfully refuses to provide an employee with a hernia operation then the employee may recover compensation as for a general injury. Lewis v. American Surety Company, supra. However, an employee is entitled to a hernia operation only in the event he has actually sustained a hernia for which the compensation carrier is liable. The issue of the existence of a compensable hernia was fully developed on the trial of this case and the necessary result of the facts found by the jury was that appellant did not sustain a compensable hernia on January 5, 1962. Appellee therefore never owed appellant any duty to provide a hernia operation and appellant’s hernia remained a specific injury and was not enlarged into a general injury. There is no contention in this case that the alleged hernia extended to and affected other parts of appellant’s body.

The jury was unable to agree upon an answer to the first issue inquiring as to whether appellant sustained a personal injury while lifting a box on January 5, 1962, or else overlooked it. The issue was not answered. In the absence of an affirmative answer to this issue there was no basis in the jury verdict for recovery. There was no objection to the acceptance of the jury verdict as being incomplete or in conflict. In the absence of timely objection the trial court was not afforded the opportunity before discharging the jury, of calling the matter to its attention and affording the jury an opportunity to answer the issue and to resolve conflicts, if any, in its answers. Only the appellant could have benefitted from a reconsideration by the jury of its verdict. He was required to preserve any error there may have been on the part of the trial court in accepting the jury verdict with the particular issue unanswered. Lewis v. Texas Employers’ Ins. Ass’n, 151 Tex. 95, 246 S.W.2d 599 (1952). “This he did not do.” The trial court had no alternative under the jury verdict but to render judgment for appellee. The appellant waived any benefit he might have claimed under the unanswered issue and any right he may have had to have the issue answered. Continental Casualty Company v. Street, Tex., 379 S.W.2d 648 (1964).

In City Transportation Company of Dallas v. Vatsures, 278 S.W.2d 373 (Waco Civ.App., 1955, dism.), it is stated: “* * after the jury returned with its verdict Appellant raised no protest concerning any alleged conflict in the answers to these Special Issues. In acting as it did, Appellant waived any conflict by accepting the jury’s verdict as it was and in not directing the Trial Court’s attention to the alleged conflict at a time when it could have been corrected.”

Appellant admits that he did not complain of any conflict in the verdict in either his original or amended motion for new trial and that error “based upon such conflict in the verdict was waived unless same constituted fundamental error. Appellant’s seventh point of error is directly answered by the opinion of the Supreme Court in St. Paul Fire & Marine Insurance Co. v. Murphree, 163 Tex. 534, 357 S.W.2d 744 (1962), wherein it is stated: “St. Paul admits that it did not assign in its motion for new trial any error as to conflict. There was no assignment of error contained in the motion for new trial sufficient to bring this question to the trial court’s attention. However, St. Paul contends that if in fact there is a fatal conflict, then such conflict cannot be waived, is fundamental and may be considered by the Court, citing Little Rock Furniture Manufacturing Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985. We cannot agree with this contention. The entry of judgment by a trial court on conflicting findings does not constitute fundamental error.” Authorities cited.

The medical record of Dr. Billy N. Gray, which was excluded by the court, was typewritten. It was not signed. The doctor’s name was typed. The letter was not offered in compliance with Art. 3737e, Vernon’s Ann.Tex.Civ.St. The court’s action in sustaining objection to its admissibility was proper. In the event its exclusion was improper the error, if any, was harmless and was not reasonably calculated to cause and did not cause the rendition of an improper judgment. The contents of the letter was cumulative of other testimony in the record.

Based upon our examination of the entire record we have concluded that the answers of the jury to Special Issues Nos. 2 and 5 are not against the overwhelming weight and preponderance of the evidence. To the contrary we find ample evidence in support thereof.

All points of error are overruled and the judgment of the trial court is affirmed.


author: McDONALD, Chief Justice.

text:
    Mary FRAZIER, Appellant, v. William Harold FRAZIER, Appellee.
    No. 4392.
    Court of Civil Appeals of Texas. Waco.
    Oct. 14, 1965.
    Rehearing Denied Nov. 4, 1965.

      Charles R. Cunningham, Corpus Christi, for appellant.
    Sorrell, Anderson, Porter & Stone, Corpus Christi,- for appellee.
   McDONALD, Chief Justice.

This is an appeal by defendant Mary Frazier from the property division portion of a divorce judgment.

Plaintiff William H. Frazier, on April 29, 1964, brought suit against defendant Mary Frazier for divorce and division of property in the Court of Domestic Relations of Nueces County. Defendant filed answer and cross action. Defendant Mary Frazier had previously, on April 1, 1964, filed a separate maintenance suit against plaintiff in Colorado (where the parties had previously lived and where the parties owned community real and personal property). On September 11,1964 the Colorado court entered judgment for defendant Mary Frazier for separate maintenance and awarded all of the community property in Colorado to her. Defendant, on October 1, 1964, alleged the Colorado judgment in motion to dissolve temporary restraining order; and on October 16, 1964 plead such judgment and gave notice that such decree would be introduced into evidence. The Colorado decree awarding defendant (Mary Frazier) the Colorado property was introduced into evidence without objection.

The trial court, on January 8, 1965, granted plaintiff a divorce; awarded defendant the children; adjudged $10C child support payments against plaintiff; found that plaintiff and defendant owned property in Colorado and Texas of the value of $91,950; and proceeded to award the Colorado properties to defendant; the Texas properties to plaintiff; and (supposedly to equalize a difference in the values of such properties), decreed a money judgment for plaintiff against defendant for $20,775.

Defendant appeals from the property division portion of the judgment on 6 points, contending that the trial court erred in failing to give full faith and credit to the prior Colorado judgment concerning the same parties and property; and that the trial court erred in assuming jurisdiction over the real properties situated in Colorado.

The record reflects that defendant plead and introduced in evidence the prior Colorado decree which adjudicated to her the community real estate situated in Colorado. Nevertheless the trial court adjudicated such property as community property.

Article IV, Sec. 1 of the United States Constitution provides:

“Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

See: James v. James, 81 Tex. 373, 16 S.W. 1087; Wilson v. Elliott, 96 Tex. 472, 73 S.W. 946; Rumph v. Rumph, 150 Tex. 475, 242 S.W.2d 416; 28 U.S.C. § 1738.

The trial court adjudicated as community property the property situated in Colorado, which had by the prior Colorado judgment been adjudicated to defendant as her separate property. The trial court thus did not give full faith and credit to the Colorado judgment.

But plaintiff says that since defendant had not lived in Colorado for 1 year prior to filing the Colorado suit, the Colorado court was without jurisdiction and that such judgment may be collaterally attacked by showing the Colorado court had no jurisdiction, (as in Callicoatte v. Callicoatte, (n. r. e.), Tex.Civ.App., 324 S.W.2d 81). This contention is without merit. To file a separate maintenance suit in Colorado, the defendant must have lived in Colorado for one year next prior to commencement of suit “except where the ground of adultery or extreme cruelty and such offense is committed in Colorado.” Defendant’s Colorado suit was grounded on extreme cruelty committed in Colorado. The Colorado court had jurisdiction. (Colorado Statute 46-1-3).

Plaintiff further contends that the trial court did not have to give full faith and credit to the Colorado judgment because Colorado separate maintenance suits are not a final adjudication where a divorce decree is later entered. Colorado Statute 46-2-4 provides that “in a proper case,” in separate maintenance suits the court may determine property rights or decree a division of property. Vines v. Vines, 137 Colo. 449, 326 P.2d 662, 74 A.L.R.2d 307. Since no appeal was taken from the Colorado decree by plaintiff, such decree is conclusive that “a proper case” existed to decree a division of property in such proceeding.

Defendant’s contentions are sustained and the judgment is reversed and cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.


author: MOORE, Justice.

text:
    Lavert PRICE, Appellant, v. Colonel G. PRICE et al., Appellees.
    No. 159.
    Court of Civil Appeals of Texas. Tyler.
    Oct. 7, 1965.
    Rehearing Denied Nov. 4, 1965.

      Jack N. Price, Longview, for appellant.
    Howard Douglas, Quitman, for appel-lees.
   MOORE, Justice.

This is a partition suit. Plaintiffs, Colonel G. Price and Rice Price, Jr., brought this suit against defendants, Lavert Price and Arcie Price, seeking a partition of an 87-acre tract of land which was jointly owned by plaintiffs and defendants. Defendants joined plaintiffs in a request for a partition of land. By way of a cross action, the defendants alleged that previous to the time of filing of the suit, there had been a house located on the property and that the house had recently been destroyed by fire, and on which Rice Price, Jr., one of the plaintiffs, had a policy of insurance and since all the insurance thereon had been collected by him, they prayed for a division and a partition of these funds.

The cause was submitted to the court without the intervention of a jury and thereupon the court appointed commissioners to make an equitable division of the land in proportion to the ownership of each of the owners. The commissioners thereupon divided the land into six tracts and awarded Arcie Price tracts Nos. 1 and 4 and Lavert Price tract No. 5; Colonel G. Price and Rice Price, Jr. were jointly awarded tracts Nos. 2, 3 and 6. The commissioners duly filed their report of the partition division stating that the partition which they had made was fair and equitable and in proportion to the respective interests owned by the parties.

Defendant Arcie Price objected to the report of the commissioners on the ground that tract No. 2, which had been awarded to Colonel G. Price and Rice Price, Jr., jointly, contained valuable improvements consisting of a new house which Rice Price, Jr. constructed thereon with the insurance money obtained as a result of the destruction of the old house, and if the insurance money was not to be divided, the division would not be equal. He again prayed for a division and a partition of the insurance money held by Rice Price, Jr. and in the alternative that the court find that the value of the shares allotted were not equal because the commissioners did not consider the value of the new house built on tract No. 2 awarded to Rice Price, Jr., jointly with Colonel G. Price. Defendant Lavert Price did not join with Arcie Price in making the objection, nor did he file any separate objection to the report.

After hearing evidence upon the respective values of each of the tracts awarded by the commissioners and evidence as to the improvements which Rice Price, Jr. had made upon the house which had burned, the court rendered judgment approving the report of the commissioners and found that Rice Price, Jr. received the sum of $11,100.-00 as insurance as a result of the burning of the dwelling situated upon the lands belonging to the parties. The court further found that the joint interest of all the parties in said dwelling at the time of the destruction thereof was of the value of $3,-000.00 and that the parties to this suit were entitled to their proportionate share of the said amount of $3,000.00. It was accordingly adjudged and decreed by the court that Lavert Price recover of Rice Price, Jr. the sum of $1,500.00 or three-sixths of the said $3,000.00 as his proportionate share, and that Arcie Price recover of Rice Price, Jr. the sum of $1,000.00 or two-sixths of the $3,000.00 as his proportionate share. The remaining $500.00 or one-sixth interest was to be retained by Rice Price, Jr. and Colonel G. Price, jointly.

Defendant Lavert Price being dissatisfied with the judgment has perfected this appeal and has assigned two Points of Error, alleging: (1) that the court erred in approving the report of the commissioners partitioning the property because the commissioners did not fairly divide the property according to the value thereof and that his share was grossly disproportionate and small in value as compared to the shares awarded to the other parties; and (2) that the court erred in awarding him only his proportionate share in the sum of only $3,-000.00 of the insurance money when the undisputed evidence showed that Rice Price, Jr. had collected the sum of $11,100.-00 in insurance as a result of the destruction of the dwelling.

The record is before us without findings of fact or conclusions of law. Under these circumstances we are required to view the evidence as a whole in the most favorable light from the standpoint of ap-pellees and in passing upon appellant’s contentions must assume that the trial court found all issuable facts raised by the evidence in such manner as to sustain the judgment, hence the judgment must be affirmed if there is any evidence of probative force to support it'on any theory authorized by law. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114, (1951); Jones v. Alvin State Bank, 332 S.W.2d 124, (Tex.Civ.App.) 1960.

It is without dispute that Rice Price, Jr. had lived in the house situated on the common property for more than 20 years before it was destroyed by fire. He carried fire insurance on the house in the amount of $11,100.00, paying all of the premiums thereon and after its destruction by fire, the insurance company paid him the sum of $11,100.00. His testimony, together with that of Colonel G. Price, was that at the time he moved into the house it was in a poor condition with a market value of approximately $150.00. According to their testimony, Rice Price, Jr. had rebuilt the house and had made valuable improvements upon the property during the time he had lived there and at the time of the fire the house had a market value of between $10,-000.00 and $11,000.00. There was other testimony by two disinterested witnesses showing that at the time Rice Price, Jr. moved into the house it had a value of approximately $2,000.00 while at the time of the fire it had a value of approximately $3,000.00.

When the house, situated upon land owned by two or more co-owners, is destroyed by fire and there exists thereon a policy of insurance, the money arising therefrom stands in the place instead of such house. Swayne v. Chase, 88 Tex. 218, 30 S.W. 1049; Rolater v. Rolater, 198 S.W. 391, (Tex.Civ.App.); Lee v. Honea, 349 S.W.2d 110, (Tex.Civ.App.). The proceeds of the policy, therefore, take the place of the property loss and the owners are entitled to share therein just as if suit had been brought for partition before the fire.

The general rule is that where improvements have been made upon the property sought to be partitioned, the improved portion will be allotted to the part owner who has made the improvements if this can be done without prejudice to the other owners. Broughton v. Millis, 67 S.W.2d 650, (Tex.Civ.App.); Burton v. Williams, 195 S.W.2d 245 (Tex.Civ.App.); 44 Tex.Jur.2d, page 273.

Had there been a partition prior to the fire, Rice Price, Jr. would have thus been entitled to the improvements or compensation in lieu thereof. Cleveland v. Milner, 141 Tex. 120, 170 S.W.2d 472. The fact that the property has now been transformed into personal property in the form of money would not alter the application rule, but would only make the property more susceptible to a partition in kind. Rule 773, Texas Rules of Civil Procedure. By implication, the court found that prior to the improvements the property had a value of $3,000.00 and that since Rice Price, Jr. had rebuilt the house and had materially improved the same, he was thus entitled to all the proceeds of the insurance over and above such amount as compensation for the improvements. There is ample evidence in the record to support the judgment under this theory. Therefore, the court’s judgment dividing the proceeds from the insurance policy will not be disturbed.

We likewise overrule the contention that the court submitted reversible error in approving the report of the commissioners partitioning the land. While it is without dispute that prior to this suit Rice Price, Jr. had used some of the insurance money in constructing a new house on tract No. 2, such improvement having been made by him, he was entitled to have the improved portion of the land allotted to him if this could be done without prejudice to the other owners. In view of the fact that the court awarded each of the other owners their proportionate share of the insurance money, appellant is not in a position to contend that the judgment awarding Rice Price, Jr. the tract upon which he had placed improvements was prejudicial to him. The court, however, did hear evidence upon the question of the equality of the division made by the commissioners. No useful purpose would be served by reviewing all of the testimony concerning the value of each of the respective tracts of land. It will be sufficient to say that the testimony concerning the value of each tract was conflicting. When viewed in a light most favorable to the judgment, the evidence shows that the land was fairly divided according to the value. The burden of showing that the portion allotted to him was not of equal value in proportion to the extent of his ownership was upon the appellant. Masten v. Masten, 166 S.W.2d 347, (Tex.Civ.App.).

In the final analysis, the question of whether or not the commissioners fairly and equally divided the property according to the value thereof is a question of fact. The trial court obviously based his judgment upon the testimony supporting the report of the commissioners which he, as the trier of the fact, had a right to do. Where the testimony is conflicting, the report of the commissioners approved by the trial court will not be set aside. Cyphers v. Birdwell, 32 S.W.2d 937 (Tex.Civ.App.); Stefka v. Lawrence, 7 S.W.2d 894, (Tex.Civ.App.); Grimes v. Hall, 211 S.W. 956 (Tex.Civ.App.); 44 Tex.Jur.2d page 303.

In addition, we think the appellant, Lavert Price, waived any right he had to complain of the division of the land made by the commissioners because he failed to make any objection thereto in the trial court. The only objection to the report of the commissioners was made by Arcie Price and he is not a party to this appeal. Appellant, Lavert Price, having made no com-pfaint in the trial court of the portion of land allotted him, such complaint cannot be presented for the first time on appeal. State of Cal. Dept. of Mental Hygiene v. Bank of Southwest Nat. Ass’n, 163 Tex. 314, 354 S.W.2d 576; Ayoub v. Herold, 287 S.W.2d 539, (Tex.Civ.App.).

The judgment is affirmed.


author: WALTER, Justice.

text:
    Jacqueline SIKES, Appellant, v. William S. KEENAN, Appellee.
    No. 4022.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 17, 1965.

      Don R. Wilson, Abilene (withdrawn as counsel for appellant per motion granted Aug. 6, 1965); no other attorney now listed.
    Bryant, Glenn & Thomas, Abilene, for appellee.
   WALTER, Justice.

Jacqueline Keenan was awarded custody of their two children when she was divorced from William S. Keenan. The father of the children filed this suit against her for custody of their children on account of alleged changed conditions. The. jury found “ — there has occurred such a material change of conditions that the best interest of said minor children require a change of custody to their father, William S. Keenan.” As provided for by Article 4639a of the Revised Civil Statutes of the State of Texas, the court granted Mr. Keenan the care, custody and control of said children subject to “visitation” rights set forth in the judgment.

Both parties have appealed.

Attorneys for the mother have filed a motion to withdraw and have set forth therein the following:

“That subsequent to the entry of judgment awarding the said children to Appel-lee, the Appellant, JACQUELINE SIKES, in violation of the Court’s orders and against the specific instructions and advice of her attorneys, apparently removed herself and the two minor children from the jurisdiction of this Court.
That a diligent effort to find and locate the Appellant, JACQUELINE SIKES, and the two minor children has been unsuccessful, and the whereabouts of the said appellant, JACQUELINE SIKES, and said children cannot be ascertained.”

Attorneys for the father in their motion to shorten the time for submission allege:

“The Appellant, Jacqueline Sikes, has possession of the minor children, Lori Lee Keenan, and Lisa Kay Keenan, and has secreted herself and said children so that after due and diligent search and investigation, the whereabouts of the Appellant, Jacqueline Keenan Sikes, and said children, cannot be ascertained.
The appellant, Jacqueline Keenan Sikes, by secreting herself and the children, Lori Lee Keenan and Lisa Kay Keenan, prevents the Appellee, William S. Keenan, from learning and determining whether his children are being properly cared for and are in a suitable environment.”

The mother’s action in removing the children from the jurisdiction of the court was wrongful and fraudulent. On account of such conduct she is not entitled to any relief from this court. Burckhalter v. Conyer, 285 S.W. 606 (Com. of Appeals); Burckhalter v. Conyer, 7 S.W.2d 73 (Com. of Appeals), and Smith v. Ansley (Tex.Civ.App.) 257 S.W.2d 156 (Writ Ref. N.R.E.).

The father contends the court has given actual custody of the children to their mother for approximately 25% of the time but called it “visitation rights.” He also asserts that the court has entered a judgment which is not in conformity with the verdict. One of the children was 5 years of age and one was 2 years of age. The court ordered that the mother should have visiting rights with the children in her home for one week each month until the children entered school. The judgment further provided for visitation rights after the children entered school and during Christmas and on the children’s birthdays. The question is whether such provision in the judgment amounts to an award of custody contrary to that fixed by the jury.

In determining the custody of children the principal concern of the courts and juries is the best interest of the children. When a jury is demanded by either party in a child custody case, it decides who is best qualified to have custody of the children. Article 4639a Vernon’s Ann.Tex. Civ.St. By enacting this article, the Legislature nullified those decisions giving the trial judge discretionary power to select the parent best qualified to look after the interest of the children. The right of a parent to visit his children at reasonable times and places is given him by the law and exists even though not specifically granted in the judgment. Hays v. Hays (Tex.Civ.App.) 123 S.W.2d 968; Bantuelle v. Bantuelle (Tex.Civ.App.) 195 S.W.2d 686. However, the practice of spelling out the visitation rights in the decree is to be commended. Awarding custody of children and defining the visitation right of the parent who is not awarded custody, places upon the trial judge his greatest burden and responsibility.

We are of the opinion that the award of visitation rights in the judgment amounts to an award of partial custody to the mother. The judgment is reformed by deleting therefrom the visitation rights and substituting therefor the visitation rights she is entitled to under the law as announced in Hays v. Hays and Bantuelle v. Bantuelle, supra.

As reformed, the judgment is affirmed.


author: HUGHES, Justice.

text:
    Harley BOLDING, Appellant, v. Dorman L. CHAPMAN, d/b/a Ace Builders Company, Appellee.
    No. 11329.
    Court of Civil Appeals of Texas. Austin.
    Oct. 20, 1965.
    Rehearing Denied Nov. 3, 1965.
    Marvin C. Hanz, San Angelo, for appellant.
    Blanks, Thigpin, Logan, Steib & Lewis, S. Ancial Middlebrook, San Angelo, for appellee.
   HUGHES, Justice.

Dorman L. Chapman, doing business under the trade name of Ace Builders Company, appellee, sued Harley Bolding, appellant, to recover on four promissory notes dated July 18, 1963, executed by him in favor of appellee in the amounts of $4,201.-68, $1,564.27, $1,573.54 and $1,672.63, respectively, each payable three months after date. Judgment was sought for the principal amount of such notes less an admitted credit of $679.10, interest and attorney’s fees.

Appellant answered this suit by alleging, “That on the 18th day of July, 1963, plaintiff, Dorman L. Chapman, d/b/a Ace Builders Company, called Harley Bolding, relative to executing some notes and the said Harley Bolding went to the office of the said Dorman L. Chapman relative to the same; that the said Harley Bolding was not personally obligated on some of the notes involved and there was a difference about a settlement for over-charges and credits to which the said Harley Bolding would have been entitled upon an accounting; that the said Harley Bolding had originally commenced business with the said Dor-man L. Chapman under an agreement for charges to be based on prices not to exceed the price for which he could buy the same material from City Lumber Company at San Angelo, Texas, and that some of the houses covered by the notes involved were houses in which the said Harley Bolding had no interest except that he had bought and paid for the lots on which the houses had been constructed; that at the time of the execution of such notes and as part of the consideration for the same Dorman L. Chapman, plaintiff, agreed to in writing with the said Harley Bolding to credit such notes with any allowances, credits or offsets to which the said Harley Bolding would be entitled by reason of any past purchases and that if such were more than the notes that the said Dorman L. Chapman would pay such difference to the said Harley Bolding, that an accounting would be at the request of the said Harley Bolding; * * *. That the defendant has prepared an accounting of credits to which he is entitled under such agreement as against such notes and same are as shown on the attached Exhibit ‘A’ attached hereto and made a part hereof showing credits in the amount of $24,165.35 for items which have been paid for by Harley Bolding and the funds for the same have been received by the plaintiff, Dorman L. Chapman, and that no such credits have been allowed on any of the aforesaid notes and to which credits this defendant is entitled on the aforesaid notes and was entitled at all times from the date of the execution of the same, to his damage to the extent of $24,165.35; that no other matters of the accounting are in dispute or in question and addition or subtraction of such items from the accounting are moot.

Wherefore, premises considered, defendant, Harley Bolding, prays the court that the plaintiff take nothing from the cause herein and that such credits be allowed against the notes sued on, subject of the two aforesaid suits, and that no attorney’s fees or interest be allowed.”

Appellant also filed a cross-action in which he sought recovery against appellee for the principal sum of $15,153.23, being the difference between the amount alleged to be due on the four notes and the amount which appellant alleged appellee owed him.

Trial was had to a jury. No issues were submitted to the jury regarding the notes in suit. The following issues, summarized, were submitted to the jury pertaining to appellant’s defense and cross-action: (1) Did appellee execute and deliver to appellant before the notes in suit were executed a written agreement that he would account to appellant and allow him credit for the excess, if any, of all prior charges not made in accordance with three certain specified conditions (2) Was such agreement executed and delivered as an inducement for the execution of the notes in suit. Issues three, four and five inquired as to the damages sustained by reason of a breach of the three conditions alleged to have been contained in the written agreement referred to in the first special issue. Issues two through five were conditioned on an affirmative answer to issue number one. The jury was unable to answer issue number one and did not answer any of the issues submitted to it. The jury was discharged and a mistrial granted. Thereafter, appellee moved the trial court to sever his suit on the notes from some or all of the issues presented by appellant’s cross-action and to render judgment for him on the notes and against appellant on his cross-action.

This motion for severance and for judgments was granted to the extent that the severance was ordered and judgment rendered for appellee on the notes in accordance with his petition. No judgment was rendered against appellant on his cross-action the court specifically providing the severance should “in no way be determinative of any issues — asserted by the defendant Harley Bolding in his cause of action asserted against Dorman L. Chapman.”

Appellee in his brief herein states that, “While appellee does not deny that appellant should have the right to continue the attempt to try and dispose of his cross-action, appellee does contend that its action on the notes be finally and speedily disposed of.”

The principal question presented by this appeal is the propriety of the court’s action in granting the severance above described.

It is our opinion that the trial court erred in granting such severance and that the error is, or certainly could be, very prejudicial to appellant. Appellee has a very large judgment against appellant the enforcement of which could conceivably be disastrous to appellant, which judgment he may not rightfully owe in whole or in part.

The record shows that when this suit was tried there was pending a suit filed by appellant against appellee in which appellant alleged that between June 10, 1961 and May 22, 1962, he had paid overcharges to appellee in the sum of $4,417.63 and he sought its recovery. It appears that this suit is a part of the controversy which was tried in the court below.

But for the pendency of this suit it is clear that the answer and cross-action of appellant herein would, under Rule 97(a), T.R.C.P., constitute a compulsory counterclaim since its subject matter arose out of the transaction or occurrence in which or as a result of which the notes involved herein were executed.

Whether the pendency of appellant’s suit against appellee for $4,417.93 is a “pending action” within Rule 97, supra, so as to preclude the necessity of appellant filing his counterclaim for $15,153.23 or so as not to require appellant to plead defensively a counterclaim sufficient to defeat recovery on the notes in suit are questions we need not decide because appellant has so pleaded.

We will say, however, as said by the Fort Worth Court in Ulmer v. Mackey, Tex.Civ.App., 242 S.W.2d 679, writ ref., n. r. e., “We deem if it is necessary to file such cross action that it is also imperative to try it in the same cause.” This same case also points out that the purpose of Rule 97(a) is to “avoid circuity of action, inconvenience, expense and consumption of the court’s time in trying said cross action in an independent suit.”

These reasons are all applicable here even though appellant’s answer and cross-action may not, because of the pending action, technically constitute a compulsory counterclaim.

In addition, the hardship which would be cast upon appellant if he is required to pay or suffer execution against his property to satisfy a judgment which he may not owe persuades us that the action of the trial court in granting the severance herein was an abuse of discretion, and the order of severance is hereby vacated.

One further question relating to the attorney’s fees clauses in the notes in suit remains to be determined.

Each of the notes sued on by appellee contains the usual attorney’s fee provision except that the blanks in the notes where the singular or plural, “I” or “We,” is to be inserted accordingly as the note is made by one or more persons, are filled with the figures “1090.”

It is our opinion that the notes, fairly read and construed, evidence an agreement by the parties for the recovery of attorney’s fees under the conditions stated. The figures “1090” are meaningless in their context in these notes. It is the same, we believe, as if the blanks were left blank. Under such circumstances it has been held that the right to recover attorney’s fees is unaffected by such omission. Rutherford v. Gaines, Tex.Civ.App., 118 S.W. 866, reformed and rendered, 103 Tex. 263, 126 S.W. 261, in which the recovery of attorney’s fees was affirmed.

The judgment of the trial court is reversed and this cause is remanded for trial in accordance with this opinion.

Reversed and remanded.

ARCHER, C. J., not participating.

      . See Rule 41, Texas Rules of Civil Procedure, Kansas University Endowment Association v. King, 162 Tex. 599, 350 S.W.2d 11.


author: MONTGOMERY, Judge.

text:
    William E. DAVIS et al., Appellants, v. LYNN MOVING & STORAGE, INC., Appellee.
    Court of Appeals of Kentucky.
    Oct. 15, 1965.
    Fred F. Bradley, Frankfort, Donald Har-kins, Begley & Harkins, Danville, Virgil Gaitskill, Jr., Asst. Atty. Gen., Department of Motor Transportation, Frankfort, for appellants.
    Rudy Yessin, Smith, Reed, Yessin & Davis, Frankfort, for appellee.
   MONTGOMERY, Judge.

William E. Davis appeals from a judgment which set aside the Department of Motor Transportation order approving his purchase of operating authority. The question is whether Davis’ conduct in moving household goods without a certificate from 1950 to August 1963, and in making eight or ten movements thereafter and after he had learned that he should have a certificate, renders him unfit within the meaning of statutory and regulatory requirements. Lynn Moving & Storage, Inc., protested the transfer.

The question is presented by Davis’ application to purchase Irregular Route Common Carrier Truck Certificate No. 2572 from Paul Best, Danville. Such certificate authorizes the transportation of “uncrated office and store furniture and used household goods and uncrated new furniture.”

The application to purchase was filed on March 13, 1964, as an amendment to Davis’ application filed on August 12, 1963, for the granting of such a certificate. Prior to the date of his application and since 1950, Davis, in addition to his regular employment, had been engaged in hauling furniture in Danville without any such certificate. It was shown that after the original application was filed appellant had continued to haul furniture without a certificate even though he had been advised by enforcement officers that he should not do so. Witnesses testified to eight or ten such movements. Davis seeks to excuse these movements by claiming a lease arrangement with Best, the prospective seller of the certificate. Davis kept no records of his moves, had no terminal, and stored his equipment on the street.

KRS 281.630(6) provides in part:

“Any certificate or permit may he sold, assigned, leased or transferred, * * * provided that the transferee is fit, willing and able to render the proposed service, * *

The final order of the Department contains no finding that “the transferee is fit * * * to render the proposed service.”

The order is couched in contradictory language. While approving the examiner’s finding of “certain illegal or questionable transportation,” the order approved transfer of the certificate but placed Davis on probation for one year because of “previous objectionable transportation activities.” Without making a finding of fitness, the Commissioner found that the evidence of Davis’ good reputation and lack of administrative requirements “tends” to overcome a conclusion of unfitness.

Counsel for the parties have cited no Kentucky decision on the point in issue. KRS 281.600 provides that the Department “ * * * shall apply, as far as practicable, the administrative and judicial interpretations of the Federal Motor Carrier Act.”

In cases of a similar nature arising under such Act unauthorized operations have been held to render an applicant unfit for a certificate. Casmer E. Wenglikowski-Pur.-William A. Muehlenbeck, 14 F.C.C. 35,205; Friocal Transport & Leasing Corp., 14 F.C.C. 35,215; C. J. Davis, Ext., 15 F.C.C. 35,519; McCale-Control Long Transp. Co.-Pur.-Spreen Brothers Motor Express, Inc., 9 F.C.C. 32,621; Powell-Purchase-Rampy, 57 M.C.C. 597. A finding of fitness is a prerequisite to approval of the issuance or transfer of a certificate.

In view of the Commissioner’s failure to make a finding as required by KRS 281.630(6), the judgment is reversed, with direction to remand the case to the Department of Motor Transportation for an appropriate finding as to whether or not Davis is fit to render the proposed service and for further action consistent therewith.

The placing of Davis on probation for one year after issuance of the certificate does not appear to be authorized by the statute. The reference in KRS 281.630(4) to “such reasonable terms, conditions and limitations * * * as are necessary to carry out” the operations of the carrier is not construed as authorizing probation upon approval of a certificate.

Judgment reversed, with direction to remand as indicated.


author: PALMORE, Judge.

text:
    Virgil TURNER, Petitioner, v. DEPARTMENT OF PAROLE AND PROBATION, Respondent.
    Court of Appeals of Kentucky.
    Oct. 15, 1965.

      Virgil Turner, pro se.
    Robert Matthews, Atty. Gen., Charles W. Runyan, Asst. Atty. Gen., for respondent.
   PALMORE, Judge.

This is an original action in which Virgil Turner seeks a writ of mandamus requiring the parole authorities of the state to restore him to a parole status which he says was revoked arbitrarily and illegally. In a previous habeas corpus case brought for the same ultimate purpose we noted that the record was not sufficient for us to reach the question of arbitrary treatment. Turner v. Thomas, Ky., 383 S.W.2d 379 (1964).

The power of this court under Const. § 110 to give relief in the nature of mandamus or prohibition can be exercised only against judicial officers. Commonwealth ex rel. Breckinridge v. Wise, Ky., 351 S.W.2d 491 (1961); Stafford v. Bailey, 282 Ky. 528, 138 S.W.2d 999 (1940). Actions against other officers must be brought in the appropriate court of general jurisdiction. Cf. Hettich v. Colson, Ky., 366 S.W.2d 907 (1963); Reese v. Lawless, 7 Ky. (4 Bibb) 394 (1816). Moreover, proceedings of this nature must be brought against the individual member or members of the agency whose actions are sought to be controlled. Lewis v. Board of Councilmen of Frankfort, 305 Ky. 509, 204 S.W.2d 813 (1947). For all of these reasons the instant application must be rejected.

Mandamus is denied.


author: DAVIS, Commissioner.

text:
    Jimmie JOHNS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 15, 1965.

      William J. Weaver, Lewis & Weaver, London, for appellant.
    Robert Matthews, Atty. Gen., John B. Browning, Asst. Atty. Gen., Frankfort, for appellee.
   DAVIS, Commissioner.

Appellant was convicted of illegally transporting alcoholic beverages in local option territory. KRS 242.230. His punishment was assessed at a fine of $50 and imprisonment for fifty days; he prosecutes this appeal by motion. KRS 21.140(2).

The question presented is whether the search of appellant’s automobile was legally accomplished.

State Trooper Walker arrested appellant for reckless driving, after he had observed appellant’s automobile approaching the trooper’s car in a reckless manner. Appellant presented a valid operator’s license to the trooper at the latter’s request. Then, in the trooper’s words, the following events occurred:

“I then placed him under arrest, and then started to conduct a search of the vehicle. Upon going to the rear, I observed that the trunk lock was not intact. I asked Mr. Johns if he would open the trunk. He said he could not as the vehicle had backed into another vehicle some time ago and had damaged the deck lid and he couldn’t open it up. Upon looking closer at the deck lid I observed that it had been sprung. And there was an opening between the fender — the right fender and the deck lid. And I bent over and looked through this opening, inside I could see cartons of Falstaff beer. I then asked Mr. Johns again if he would open the trunk and he still said he could not. I asked him if he had a spare tire, he said he did. I said, well, if you had a spare tire, I assume you could get it out if you needed it. And I said, I believe you could open it up. He said, Okay, said, I will open it up. So I believe he took a small screw driver or a similar instrument and put it in the hole and flipped a switch inside, and the deck lid opened. At this time I observed a large quantity of beer.”

It was stipulated that this happened in “dry” territory and that appellant had been fined $10 upon his guiity plea to the reckless driving charge. The trooper testified that he knew appellant, and knew he had a bad reputation as a violater of the liquor laws. Similar “bad reputation” evidence was presented by a deputy sheriff.

Appellant’s pre-trial motion to suppress the evidence as to finding the beer in the car was overruled; the same motion was renewed at the conclusion of the prosecution’s evidence, but was again overruled. Appellant offered no proof.

In Lane v. Commonwealth, Ky., 386 S.W.2d 743, we held that the mere fact of an arrest for a traffic or other minor violation does not give the arresting officer an absolute right to search the vehicle or premises indiscriminately. The rationale of Lane governs this appeal unless it may be said that the’ beer was in plain view—or unless the search was made pursuant to voluntary consent of appellant. It is our view that neither of these distinguishing factors is present.

Appellee relies on the premise that the trooper committed no trespass when he observed the beer through the crack in the rear of the car. To bolster this argument appellee directs attention to Lee v. United States, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202, and On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270. In the Lee case the Supreme Court approved the use of a powerful searchlight which had disclosed contraband liquor on the deck of a vessel at sea. In On Lee an undercover government agent had engaged the defendant in conversations which were “broadcast” via a concealed radio transmitter to another government agent “tuned in” on the conversations. The incriminating statements of On Lee as heard “on the air” were admitted in evidence. We do not regard either of those decisions as controlling here. As to the Lee decision, contraband liquor on deck is plainly visible, even though a powerful searchlight is used at night to reveal it. With respect to On Lee, the decision relates to an “eavesdropping” situation rather than a true search. It seems plain that On Lee’s statements to the undercover agent would have been admissible if introduced through the undercover agent; no reason appears for exclusion of the statements when presented by the agent who heard them on the radio.

Appellee urges our decisions in Clark v. Commonwealth, Ky., 388 S.W.2d 622; Childers v. Commonwealth, Ky., 286 S.W.2d 369; and Johnson v. Commonwealth, Ky., 291 S.W.2d 550, as supporting the ruling of the trial court. We do not agree. In Clark the contraband beer was in “plain view” in the rear of the car; it required no “search” for the officers to observe it. So, in Childers the copper wire was in plain view in the back seat of the automobile. In the Johnson case the defendant voluntarily submitted to a search of the trunk of his car before any arrest.

Here the officer characterized his activities as a “search” of the car—after he had placed appellant under “physical arrest” for reckless driving. Clearly there was no reasonable basis for the officer’s searching the trunk of the car in connection with the charge of reckless driving. We cannot regard the beer in the car’s trunk as being “clearly” or “plainly” visible. The trooper would not have observed the beer but for his painstaking inspection of the car. Even a full-blown viewing of the car—from an upright position—would not have disclosed the beer. It was only when the trooper bent half over that he was able to see it through the small opening.

Neither do we regard the instant search as having been accomplished with the voluntary consent of the appellant. It will be recalled that the trooper had placed appellant under “physical arrest” prior to requesting permission to search. In our view, the appellant had no recourse except to submit to the authority of the officer in this situation, so that his reluctantly given “consent” was nothing more than yielding to the inevitable. Cf. Smith v. Commonwealth, 283 Ky. 492, 141 S.W.2d 881; Thomas v. Commonwealth, 226 Ky. 101, 10 S.W.2d 606; 47 Am.Jur., Searches and Seizures, § 71.

The motion for appeal is sustained, and the judgment is reversed.

HILL, J., dissenting.


text:
    Roy MAGGARD, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 15, 1965.

      Roy Maggard, pro se.
    Robert Matthews, Atty. Gen., John B. Browning, Asst. Atty. Gen., for appellee.
   PALMORE, Judge.

Roy Maggard appeals from a judgment of the Pulaski Circuit Court overruling his RCr 11.42 motion to vacate the judgment pursuant to which he is imprisoned at the Kentucky State Penitentiary. The motion was overruled on the basis of the record. The question is whether appellant was entitled to a hearing.

It has been settled that a movant under RCr 11.42 is not entitled to appointed counsel or to a hearing if his motion on its face does not allege facts which, if true, render the judgment void. Maye v. Commonwealth, Ky., 386 S.W.2d 731 (1965); Odewahn v. Ropke, Ky., 385 S.W.2d 163 (1964). It is likewise unnecessary for the court to order a hearing if the material issues of fact can fairly be determined on the face of the record. Cf. RCr 11.42(5). Although the Commonwealth did not answer in this case, and thus failed to create any issues of fact, still we think the mov-ant cannot prevail by default if his allegations are refuted by the record.

Appellant was indicted in September 20, 1949, for wilful murder. He was tried before a jury on October 7, 1949, and was found guilty and sentenced to life imprisonment.

The grounds stated in the motion were as follows: (1) By reason of the shortness of the interval between the indictment and the trial appellant was deprived of sufficient time to obtain competent counsel or to prepare a defense; (2) Appellant was denied counsel during interrogation by the sheriff and was forced to sign a statement while intoxicated; (3) Appellant was denied the right to an examining trial and formal arraignment, and the indictment was not read to him before the date of the trial; (4) There was improperly introduced in evidence against appellant a statement made by one Pat Parson, a convicted perjurer; (5) The indictment was void; (6) The court did not instruct the jury on the whole law of the case; and (7) The jury was prejudiced against appellant.

The record shows that appellant was represented by counsel at his trial, that both sides announced ready and arraignment was waived. In his brief before this court appellant says the indictment was read to him in the county jail by the sheriff on September 21, 1949. It is not alleged that a continuance was requested. Grounds (1) and (3) obviously do not stand up against the record. The indictment apparently having been returned pursuant to a direct submission of evidence before the grand jury, there was neither occasion for nor a right to an examining trial.

Confessions obtained under circumstances as alleged in ground (2) have been inadmissible in this state from time immemorial, and had such a confession been offered in this case it could have been excluded on timely objection. If the confession actually had been obtained illegally, and the court had nevertheless admitted it over objection, the error would have been a ground for reversal on direct appeal but not fatal to the validity of the proceedings. Cf. King v. Commonwealth, Ky., 387 S.W.2d 582, 584 (1965).

Grounds (4) and (6) are in the same category as ground (2). They allege mere errors falling short of a denial of due process. King v. Commonwealth, Ky., 387 S.W.2d 582 (1965); Maye v. Commonwealth, Ky., 386 S.W.2d 731 (1965).

Ground (5) is refuted by the record. The indictment was perfectly proper.

In the absence of specific reasons why the opportunity of examining the jurors on voir dire, the concomitant right to challenge for cause, and the right to seek a change of venue were not ample and sufficient protection against prejudice on the part of the jury, ground (7) is a vaporous allegation without sufficient substance to warrant inquiry.

The judgment is affirmed.


author: CLAY, Commissioner.

text:
    Bennie TAYLOR et al., Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 15, 1965.
    Bennie Taylor, Georgie Lynn, Johnny Lynn, all pro se.
    Robert Matthews, Atty. Gen., Joseph H. Eckert, Asst. Atty. Gen., Frankfort, for ap-pellee.
   CLAY, Commissioner.

The three appellants were convicted of storehouse breaking and each sentenced to two and one-half years in prison.

The first question raised is a procedural one. Appellants, who are not now represented by counsel, failed to take and perfect their appeal within the time limits prescribed by the Criminal Rules. In view of the very unusual circumstances in this particular case, we will not dismiss the appeal on procedural grounds.

The only claim of error on the merits is that the principal evidence introduced against appellants was obtained by an illegal search.

About 3:30 in the morning a service station was broken into and 26 cartons of cigarettes were stolen. This set off a burglar alarm and the owner of the station observed an automobile leaving his station in a northerly direction. The sheriff was immediately notified and set out in pursuit of this automobile. It was drizzling and the sheriff was able to follow the car tracks for some distance. He lost sight of the tracks but shortly observed appellants’ automobile pulling out from a side road. He followed this car for about a mile and then required it to stop. Upon shining his flashlight in the car, which was occupied by the three appellants, he saw on the back seat a pile of cigarettes and wrecking tools. Shortly thereafter appellants were arrested on a warrant.

In their briefs the parties discuss the question of whether the discovery of what were apparently stolen goods and burglary tools constituted an illegal search of the vehicle. The act of discovery gives us no trouble in the light of Reynolds v. Commonwealth, Ky., 273 S.W.2d 569, and Childers v. Commonwealth, Ky., 286 S.W.2d 369.

The real problem is whether the stopping of the car was illegal so that whatever was discovered thereafter constituted an illegal search.

If law enforcement officers have a bona fide reason for stopping a motor vehicle, the discovery of incriminating evidence in plain view may be shown in evidence against the accused. Commonwealth v. Robey, Ky., 337 S.W.2d 34, 87 A.L.R.2d 923; Clark v. Commonwealth, Ky., 388 S.W.2d 622. Here the officers knew a felony had been committed; they were following the tracks of an automobile identified as having left the scene; and at four o’clock in the morning, with no one else abroad, they had reason to believe that appellants’ car was the one involved. Under these circumstances they had a right to stop the car and they did not conduct an illegal search.

The judgment is affirmed.