author: DAVIS, Commissioner.

text:
    Clement J. SCHWEINEFUSS et al., Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 4, 1965.
    As Modified on Denial of Rehearing Nov. 26, 1965.

      Jack Howell, Covington, Edward F. Prichard, Jr., Frankfort, for appellant Schweinefuss.
    Howell W. Vincent, Stephen McMur-try, Joseph C. Healy, Covington, for appellants Worthingtons.
    Robert Matthews, Atty. Gen., Martin Glazer, Charles W. Runyan, Asst. Attys. Gen., Frankfort, for appellees.
   DAVIS, Commissioner.

Clement J. Schweinefuss, Robert Worth-ington, and Janie Worthington were jointly indicted, jointly tried, and all convicted of the offense of “pandering,” denounced by KRS 436.040, and the offense of “aiding and abetting prostitution”, contrary to the provisions of KRS 436.075(2). The charge under KRS 436.040 is a felony; the latter charge of “aiding and abetting prostitution” is a misdemeanor. In an effort to minimize confusion, we shall refer to the appellants as “defendant Schweinefuss,” “defendant Robert,” and “defendant Janie.”

The jury’s verdict, followed by judgment of the court, declared each of the defendants guilty as to each charge, and fixed their respective punishments as follows:

Defendant Robert: Imprisonment for three years for the felony conviction; fine of $200 plus imprisonment for one year as to the misdemeanor.

Defendant Janie: Imprisonment for three years for the felony conviction; fine of $200 plus imprisonment for one year as to the misdemeanor.

Defendant Schweinefuss: Imprisonment for one year for the felony conviction; fine of $200 plus imprisonment for one year as to the misdemeanor.

The appellants present the following grounds upon which they deem themselves entitled to reversal: (1) It was error to permit the joinder of the felony and misdemeanor charges; (2) the court failed to admonish tentatively accepted jurors upon recess of court; (3) the court erred in refusing a continuance because of inflammatory newspaper articles; (4) damaging evidence was admitted which had been obtained by illegal search and seizure; (5) appellants Robert and Janie Worthington should have had directed verdicts of acquittal as to the misdemeanor charges; (6) evidence relating to conviction of a felony by appellant Robert Worthington should have been excluded; (7) the instructions were confusing, misleading and erroneous; (8) appellant Schweinefuss was prejudiced by court’s refusal to grant him a continuance; (9) the court improperly refused an accomplice instruction.

The “star” witness for the prosecution was Dorothy Evans, who admitted practicing prostitution during the period pertinent to this case. According to Dorothy Evans, she was brought to a residence owned by defendants Robert and Janie Worthington at 128 East Eleventh Street, Covington, on September 23, 1963. The residence building was a house of prostitution, and defendant Janie served in a dual capacity in it — sometimes she acted as its “madam,” and on rush occasions she worked as a prostitute. Dorothy Evans related that she was taken to the brothel by her “daddy” (a term she used to identify her pimp). This individual left Dorothy in his automobile outside the house while he negotiated with defendants Robert and Janie. Upon completion of those preliminary details, the “daddy” brought Dorothy into the house and presented her to defendant Janie; at that initial encounter Dorothy saw neither defendant Robert nor defendant Schweinefuss.

Defendant Janie made some inquiry whether Dorothy had “worked” (as a prostitute) before, to which Dorothy made negative response. Shortly thereafter, defendant Robert put in his appearance and the tenor of the conversation continued along that line, after which Dorothy was instructed by defendants Robert and Janie “to get dressed for work.”

Before she had opportunity to do so a “customer” of the bagnio arrived, whereupon Dorothy was directed by defendants Robert and Janie to take her place in the line with other harlots for inspection and selection. Dorothy was chosen.

The customer’s requirements encompassed an area of debauchery which was unfamiliar to Dorothy, so she obtained instructions and demonstrations from defendant Janie prior to entering upon her professional duties. Dorothy was informed, by defendants Janie and Robert, as to the “going rates” for the various types of “parties” available to patrons of the house. It was further explained to her that she was to make memoranda incident to her acts of prostitution, and that she should transcribe thereon the amount of money collected from each customer, the time at which she started and finished each transaction, along with her professional identification as “Pam.” These chits, together with the money collected, were placed by Dorothy in a bag provided for the purpose; the bag, along with similar receptacles available for the other operatives of the establishment, were neatly hung inside a closet door.

It was also explained that Dorothy’s fiscal arrangements were such that at the close of each day’s activities (which activities began at 10:00 a. m. and concluded at 4:00 a. m., on each week day — but never on Sunday) the gross proceeds emanating from her dealings with the customers should be divided, on the basis of 50% to the “house” and 50% to Dorothy. The “house,” as Dorothy understood it, was comprised of defendants Robert and Janie. From Dorothy’s share of the gross earnings the “house” extracted $2.00 per day as rental. In certain instances, when the customers were fetched to the house by taxi drivers, the share of Dorothy was subjected to a “bite” of 40% as recompense to the enterprising cabbie.

Dorothy testified that at the close of her first day’s work as a prostitute the money in her bag was divided with her by defendant Robert; that on other occasions this division was accomplished by defendant Janie, and on still others by defendant Schweinefuss. She did not say that defendant Schweinefuss was an actual beneficiary of the money, or whether he merely supervised its division according to the foregoing schedule.

Dorothy said that she was under physical restraint which prevented her leaving the house, except at times when she was permitted, under supervision of her “daddy” or defendant Robert, to visit a beauty shop, and on Sundays, when she visited her small son. Dorothy was not able, with particularity, to specify on just what dates the money division was supervised by the respective defendants. She was able to finally leave the house on October 26, 1963, which was on Saturday. On the following Tuesday, October 29, she called upon the Commonwealth’s Attorney and related substantially the sordid account just outlined.

Other witnesses for the prosecution included four “customers”; none of them identified defendant Schweinefuss or defendant Janie in any way; one of these four witnesses said that he saw defendant Robert there on the occasion of his visit to the house.

Four cab drivers testified for the Commonwealth. Two of these asserted that they merely took their fares to the house and did not participate in the 40% “cut.” One of these two did not identify any of the defendants as having been present; the other said that defendant Robert was there on one occasion, but that he did not see the other two defendants.

The other two cab drivers admitted that they were recipients of 40% of the prostitute’s share paid by the customers whom they had brought to the brothel. One of these said that he had observed defendant Schweinefuss in the house “once or twice,” and that he had observed defendant Robert “once or twice” also, but that he had not seen defendant Janie. This witness stated also that defendant Schweinefuss had told the witness that “the place would be closed.”

The second cab driver who admitted sharing the earnings of the prostitutes recounted that defendant Schweinefuss had handed the witness a card, containing the address of the house, at which time he informed the witness that the witness would receive the 40% share of whatever a prostitute in the house earned from a fare brought there by the witness. This witness said that on four or five occasions he did take passengers to the house, and did receive 40% of the share paid the harlot, although none of the defendants participated in paying him; he obtained the money directly from the woman. This witness said that he saw defendant Schweinefuss in front of the house on one such occasion, but that he had no part in the division of money.

The tax commissioner proved that the property in question is owned by the defendants Robert and Janie; he did not testify to any fact linking defendant Schweine-fuss with the premises.

The Covington Chief of Police presented evidence of articles obtained by him as the result of a search conducted on October 29, 1963, pursuant to a search warrant issued on the affidavit of Dorothy Evans. The articles included contraceptives, lubricating jelly and other items which Dorothy mentioned as having been used in conducting the house of prostitution.

We think there is no merit in the contention of appellants that it was error to permit the trial of the felony and misdemeanor charges together. RCr 6.18 when considered with RCr 9.12 authorizes this procedure. Appellants assert that they have been placed in double jeopardy because they conceive that the offense of aiding and abetting prostitution is a degree of and included in the offense of pandering. In support of this argument appellants cite Easly v. Commonwealth, Ky., 320 S.W.2d 778; Scarf v. Commonwealth, 195 Ky. 830, 243 S.W. 1034; Hunt v. Commonwealth, Ky., 338 S.W.2d 912, and Arnett v. Commonwealth, 270 Ky. 335, 109 S.W.2d 797. We recognize the rule as announced and followed in those decisions, namely, that two offenses growing out of a single criminal transaction may be separately prosecuted provided that the elements of the offenses are not the same, one of the offenses is not a degree of the other, or if the single act violates two separate statutes, or a statute and the common law. The related rule provides that a second prosecution is barred if the facts necessary to convict on the second charge would necessarily have convicted on the first charge. We have no such case here. See Adams v. Commonwealth, 313 Ky. 298, 231 S.W.2d 55, in which this court held that pandering and operating a disorderly house are separate offenses. The rationale of that case rules this one on the point under discussion.

Neither do we find merit in the contention that reversible error occurred when the trial court failed to admonish six tentatively qualified jurors as prescribed by RCr 9.70 at the end of the second day of trial. The admonition was given to the members of the tentative panel at least oncé before the evening adjournment of court on the second day of the trial. Throughout the course of the trial the judge carefully admonished the jury at each recess, but did inadvertently omit to do so incident to the recess at the conclusion of the second day. While we regard it as error to fail to give the admonition, we are not persuaded that the error has been shown to have been prejudicial in this case. Appellants do not suggest nor offer any evidence that any person did improperly attempt to influence the tentatively selected jurors. In view of the fact that the court had already admonished the members of the panel earlier in the trial, and in light of the repeated admonitions given in the course of the trial, we will not assume, without any showing of it, that the jury did in fact conduct itself contrary to the mandate of the admonition. RCr 9.24 directs that no error shall avail unless it is one affecting substantial rights. In this instance there is no showing that a substantial right of any appellant was adversely affected. Cf. Bowman v. Commonwealth, 146 Ky. 486, 143 S.W. 47; Anderson v. Commonwealth, 291 Ky. 727, 166 S.W.2d 30.

At the outset of the trial the appellants moved the court to grant a continuance because of alleged inflammatory news coverage relating to the trial. It was contended that the news media (newspapers, television and radio) had so stirred up public resentment as to preclude the possibility of a fair trial in the community. Reliance is had on Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751. We are in accord with the precepts followed in Irvin v. Dowd, supra, and cases of like import which have followed it. However, an examination of the news articles in the record (no specific transcript or claim as to the nature of the television and radio coverage is in the record) convinces us that the trial court correctly denied the motion. There is simply nothing in the articles which may fairly be construed as sufficient to establish prejudice against the appellants. There was no semblance of "trial by newspaper.”

Before trial the appellants moved for suppression of evidence respecting personal property seized by officers from the house of prostitution. These items had been obtained pursuant to a search warrant issued upon the affidavit of Dorothy Evans. The grounds of attack upon this evidence are twofold; first that the affidavit was insufficient to authorize the search warrant, and second that the items seized were not properly subject to a search warrant in any event.

The affidavit recited that Dorothy Evans made the allegations in it “based on her own observation, personal knowledge and belief”; in another portion, the affidavit declares “ * * * and that this affiant, from her own personal knowledge, knows that the activities of prostitution hereinabove set out have been carried on and engaged in in said premises for a period of time commencing with the 23rd day of September, 1963.” The exact location of the premises was contained in the affidavit, and it was made on October 29, 1963. The affidavit further charged that on that same date, October 29, 1963, the premises were being used for purposes of prostitution and clearly reflected that the affiant was deposing that the illegal activities had been carried on with regularity from September 23, 1963, to and including the date of the affidavit. We deem it sufficient. We think nothing in Smallwood v. Commonwealth, Ky., 349 S.W.2d 830, or Henson v. Commonwealth, Ky., 347 S.W.2d 546, impels a different conclusion. The fact that the affidavit under consideration was specific as to date and place differentiates it from the affidavits condemned in the cited cases.

Whether the articles seized were proper subjects of a search warrant presents an interesting problem. The affidavit for search warrant declared that in a certain closet “ * * * are contained the following items used to further the acts of prostitution, to wit: washing pans and utensils, mouth wash, vaseline, towels, cards used by the prostitutes, money bags, and prophylactic contraceptive devices.” Appellants insist that these articles were merely evidential, and not properly subject to search and seizure. Reliance is had upon United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877, and Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647. The latter decision specifically recognized that property held for committing crime is a valid object'of a properly issued search warrant, because the public has a valid interest in prevention and detection of crime. It is our view that the affidavit’s charge that these items were “used to further the acts of prostitution” affords ample basis for search for and seizure of them. Cf. Boles v. Commonwealth, 304 Ky. 216, 200 S.W.2d 467.

We find abundant evidence warranting submitting to the jury the issue whether defendants Robert and Janie were guilty of “aiding and abetting prostitution.” Dorothy Evans gave specific evidence to that effect, as did cab drivers and patrons of the house of ill fame. It is our view that Dorothy Evans was not an accomplice. In Eisner v. Commonwealth, Ky., 375 S.W.2d 825, we reiterated that “An accomplice has been defined as one who is subject to prosecution for the identical offense of which the accused is being tried.” It is clear that Dorothy Evans could not be guilty of accepting or appropriating money without lawful consideration from her own earnings as a prostitute; nobody suggested that she shared in any other prostitute’s take. Neither was she in any wise guilty of aiding and abetting prostitution in setting up a house of ill fame. She was guilty of prostitution, but not of the two offenses for which the appellants were convicted.

What we have just said disposes of the ninth charge of error, relating to failure to give an accomplice instruction. RCr 9.62 directs that a conviction may not be had on uncorroborated testimony of an accomplice. It is not error to refuse an accomplice instruction if there is adequate evidence to corroborate the testimony of the accomplice. Combs v. Commonwealth, Ky., 341 S.W.2d 774. Conceding that the taxi drivers who admitted sharing the earnings of the prostitutes were accomplices on the felony charge, there was independent competent substantial testimony of guilt apart from the evidence of the drivers.

During her testimony Dorothy Evans had recounted that she was a virtual captive at the house of prostitution. The following questions and answers appear in her evidence:

“Q351 Did you make any attempt to leave prior to your leaving?
“A. Yes, sir, but I was threatened.
“Q352 By whom?
“A. By Bob Worthington.
“Q353 What did he say to you ?
“A. He told me that if I was to ever squeal or tell that I’d have my baby taken away from me and that he’d shoot anyone that took him away from his kids again because he’d already spent five years in the penitentiary.”

Appellants moved for a mistrial as soon as the last answer was heard. The court overruled the motion and declined to make any admonition to the jury as to this testimony relating to defendant Robert’s having spent time in a penitentiary. It is recognized by the Commonwealth that the general rule forbids evidence of other fcrimes, but it is contended that the testimony under consideration falls within one of the exceptions to that rule. We agree. The claim of Dorothy Evans that she was under restraint was a vital part of her evidence, and the jury may well have had doubt that she was unable to effect an escape. Her explanation of her fear of defendant Robert was an integral part of the very crime for which he was being tried. Under such conditions the evidence was pertinent and proper. See Shepperd v. Commonwealth, Ky., 322 S.W.2d 115; Browning v. Commonwealth, Ky., 351 S.W.2d 499; McGill v. Commonwealth, Ky., 365 S.W.2d 470. We think this case is distinguishable factually from Manning v. Commonwealth, Ky., 328 S.W.2d 421.

We hold that the appellants were not prejudiced by the manner in which the court instructed the jury. In substance the court submitted the felony charges and the misdemeanor charges in two separate instructions, authorizing conviction as to each if the jury believed beyond a reasonable doubt that the respective appellants had committed the offenses charged on any one of the thirty days embraced in the indictments. The limit of punishment was fixed within the range permitted for conviction of one offense. This was more favorable to the appellants than was warranted. The court could have submitted thirty separate opportunities to convict as to the felony charges and thirty more as to the misdemeanors. It is possible that the appellants could have been convicted on sixty separate charges of felony and misdemeanor; when the court limited the possible punishment to that applicable to just one conviction we think the appellants may not be heard to complain. If this was erroneous, it was harmless error. RCr 9.24.

Appellant Schweinefuss asserts that it was prejudicial error for the trial court to refuse his motion for continuance because his counsel had not had opportunity to properly prepare his defense. It appears that the case was called for trial on Friday, December 6, 1963, at which time Honorable Howell W. Vincent appeared as attorney for defendant Schweinefuss; the other defendants had separate counsel. Various preliminary motions were made and disposed of on that first day, and the case was assigned for trial on Tuesday, December 17, 1963. When the trial was started on December 17 defendant Schweinefuss was still represented by attorney Vincent, who made a motion for continuance based on claimed prejudicial news items. Mr. Vincent stated to the court, in part: “And, I might tell the Court, anticipating the Court’s ruling on that motion, the defendant Schweinefuss, will be ready for trial.”

The court did overrule the motion for continuance (as evidently anticipated by counsel), whereupon the parties proceeded to the selection of a jury. The regular jury panel was exhausted after six members of it had tentatively qualified for the jury. The trial was recessed until Wednesday, December 18, 1963, at which time further efforts to form a jury from a specially drawn panel were made. When the special panel was exhausted the trial was again recessed until December 19; on the latter date the completion of the jury was accomplished, and the trial order recites that the “respective parties, by counsel, accepted the jury as constituted * * However, the alternate (thirteenth) juror had not been qualified, so the trial was again recessed to December 20 for purpose of thus completing the jury. When proceedings were resumed on December 20 it was made known that defendant Schweinefuss had suffered an illness and that he was then confined to the hospital. After some inquiry about this, the trial was recessed until January 7, 1964.

When trial was resumed on January 7, 1964, defendant Schweinefuss appeared with attorney Jack Howell. The record discloses that defendant Schweinefuss had written attorney Vincent on January 6, 1964, advising the lawyer that his services would no longer be required. On that same date Mr. Vincent moved that permission be granted for his name to be withdrawn as record counsel for Schweinefuss. It is significant that Mr. Vincent did participate fully in the trial.

Under the circumstances, we are not persuaded that error was committed in refusing Schweinefuss’s motion for continuance. We think it is apparent that a defendant may not discharge his lawyer in the midst of a trial and complain that he is without proper representation, unless there is a substantial and valid showing that the action was in good faith and of necessity. Here there is no such showing. An examination of the proceedings fails to reflect any manner in which the defense of Schweinefuss was neglected, nor is there any suggestion that more time would have served any useful purpose in the preparation of the defense.

The judgments are affirmed as to each of the appellants.


source: Caselaw Access Project

author: STEWART, Judge. WILLIAMS, Judge

license: Public Domain

text:
    Henry Spencer McGEE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 12, 1965.
    Rehearing Denied and Dissenting Opinion Filed Nov. 5, 1965.

      Frank E. Haddad, Jr., Louisville, William E. Scent, Reed & Scent, Paducah, for appellant.
    Robert Matthews, Atty. Gen., Martin Glazer, Ass’t. Atty. Gen., Frankfort, for appellee.
   STEWART, Judge.

Henry Spencer McGee was convicted of the wilful murder of LeRoy Duncan and sentenced to life imprisonment. He appeals.

First, he argues the trial court committed prejudicial error by refusing to allow the introduction of a tape interview or a transcript of such recording for the purpose of impeaching the testimony of a Commonwealth witness.

The witness, George Henderson, made the tape recording in the office of appellant’s counsel on October 22, 1962, which was one day after the murder and one day before Henderson gave a statement to the police. Henderson admitted on the stand that he made the tape recording. Mr. Frank Had-dad, Jr., appellant’s attorney, recorded the conversation, operating the recorder and asking the questions. Because it is asserted Henderson at the trial related a story different in certain respects from what he had told on the tape recording, Mr. Haddad proposed to introduce the recording in order to contradict Henderson and impeach his testimony. The trial court refused to permit a playback of the recording in the presence of the jury or a transcript thereof to be read to them, but ruled that Mr. Haddad could testify from his memory concerning the relevant portions of the interview.

In the recent case of Commonwealth v. Brinkley, Ky., 362 S.W.2d 494, which was a prosecution for obtaining money under false pretenses, it was held that a recording of a conversation between the prosecuting witness and the defendant, which recording was made by the sheriff who, with the permission of the prosecuting witness, hid himself in the trunk of a car and obtained it, was admissible in evidence, providing a proper foundation was laid.

In that case it was stated such a foundation could be established by a showing that the speaker was properly identified, that the mechanical device was capable of taking testimony, that the operator of the device was competent, that the recording was authentic and correct and preserved in a proper manner, that no changes or deletions had been made, and that the testimony was elicited freely. The Brinkley opinion does not state the reason for which the recording was sought to be introduced, that is, whether for corroboration, impeachment, or some other purpose.

In the present case, appellant’s attorney stated he could prove the various factors necessary for laying a proper foundation. The trial court refused to hear any argument, pro or con, bearing upon the admissibility of statements recorded by tape, apparently believing that the recording would be inadmissible under any circumstances. The tape interview identified the witness by name, but not the interviewer; also, the interview itself did not reveal that the statements were given without any inducement.

Appellant argues that the tape recording of Henderson’s interview is the only “evidence” of an eyewitness which “corroborates” his testimony that Duncan was the aggressor. Certainly the statements that were offered, assuming they were admissible, could not have been introduced as substantive evidence.

The tape recording of Henderson’s interview was relevant only because it appeared to be a different version of what the witness, Henderson, said at the trial. Only a few of the statements had any bearing upon the issue of fact raised and, from the record before us, it is impossible to understand how those items could have been played back in accordance with proper safeguards; that is to say, in playing back the recording, it is difficult to perceive how the trial court could have separated the admissible from the inadmissible in order to give an adequate admonition in respect to what was considered admissible.

In United States v. McKeever et al., 271 F.2d 669 (C.A., 2d Ct.), although the authenticity of a tape recording was established to the satisfaction of the trial judge in the United States district court, the trial judge declined to permit defense counsel to play the tape before the jury for the purpose of impeaching a witness, but he allowed defense counsel to read to the jury from a stenographic transcript of the recording many statements of the witness that conflicted with his testimony on direct examination.

On an appeal to the United States circuit court this practice was condemned, the opinion in the above-styled case stating on page 675: “Documents shown to a witness for the purpose of reviving his recollection may not be read or shown to the jury, since the documents themselves are not evidence and have no independent evidentiary value. Portman v. American Home Products Corp., 2 Cir., 1953, 201 F.2d 847, 850; Wigmore, Evidence § 763 (3d Ed. 1940). That such material is sought to be introduced on cross rather than direct examination is not a difference of significance.”

Later, this statement appears in the same opinion on page 676: “To have permitted the playing of the recording involved in this case would in effect have allowed a witness to give testimony without being sworn and without opportunity for his cross-examination.”

Admitting, arguendo, the trial court erred in not permitting the introduction of the tape interview, a comparison of Henderson’s testimony under oath at the trial with his statements purportedly given on tape, discloses only a few variations. At the trial he admitted that during the tape interview he stated to appellant’s counsel that Duncan had approached appellant at his car. His only denials at the trial were that many words and curses were exchanged between Duncan and appellant when they were in the house, where they first met, and that later when Duncan was killed out on the street, he had his hands by his side instead of in his pockets. We believe these claimed discrepancies were fully placed before the jury when defense counsel, by reference to the stepongraphic transcript of the recording, asked Henderson questions concerning these matters.

Furthermore, the trial court ruled that defense counsel could take the stand and testify under oath as to how Henderson’s conversation with him differed from any testimony Henderson gave at the trial. This he declined to do, basing his refusal to do so upon the averment that his testimony would not be the “best evidence.” It is our view the tape cannot be considered as evidence in any sense of the word.

We find no error in the trial court’s ruling on the first issue raised.

The next error assigned is in connection with the giving of “Instruction No. 4,” which reads:

“If you find the defendant guilty but on all the evidence have a reasonable doubt of whether he has been proved guilty of wilful murder or of voluntary manslaughter, you will find him guilty of the lower offense of voluntary manslaughter or involuntary manslaughter.” (Emphasis added.)

The trial court submitted proper instructions on wilful murder, voluntary manslaughter, and involuntary manslaughter. Appellant argues, however, that the trial court should have explicitly instructed the jury to convict of the lesser offense (which he claims is involuntary manslaughter), if they had a reasonable doubt of the degree of the offense committed by appellant. He also maintains the instruction as given was confusing because of its use of the expression “voluntary or involuntary manslaughter,” and this joining of the two offenses in this manner authorized the jury to convict for a crime which would not be the lesser one.

As early as 1878 in Lee v. Commonwealth, 10 Ky.Opin. 489, it was held that an erroneous instruction as to involuntary manslaughter is harmless, where a correct instruction as to voluntary manslaughter is given, and the jury found the defendant guilty of murder. Later in King v. Commonwealth, 224 Ky. 822, 7 S.W.2d 228, an error in an instruction defining involuntary manslaughter was held not prejudicial where the defendant was convicted of murder.

The instructions, taken as a whole, made it unmistakably clear that voluntary manslaughter is an offense of a lower degree than murder; and involuntary manslaughter is an offense of a lower degree than voluntary manslaughter. The jury convicted appellant of murder. Thus it is obvious they had no doubt as to the character of offense they believed he had committed.

The final contention is that prejudicial error was committed by the trial court in permitting the Commonwealth’s attorney to make so-called improper statements in his closing argument to the jury.

Appellant raises the point that the Commonwealth’s attorney misquoted the evidence as to whether anyone witnessed the victim threaten appellant on an occasion previous to the date of the killing. He asserts the Commonwealth’s attorney stated no one except a waitress had been present when in fact the witness, Henderson, had been present. However, the testimony in controversy was read back to the jury to clarify this issue, and we conclude the error thus complained of was cured.

He also takes the position that it was highly objectionable for the Commonwealth’s attorney to say that he (McGee) “came in here with a cock and bull story that it was an accident and expected this jury to let him off.” The Commonwealth’s view is that such a remark was permissible, as it was simply a strong answer to the defense’s theory of the case, namely, that the victim had been inadvertently shot. The evidence certainly warranted this statement.

Appellant also takes exception to this statement: “* * * I think we have a right to ask you jurors to say to Henry Spencer McGee and to anybody else in this community who might think that he can kill wilfully and maliciously and not be punished severely by a jury, that we jurors of Jefferson County, Kentucky, are just not going to stand for it and when the proper case comes before us we are going to see that the law is enforced and enforced to the highest degree.”

Appellant claims such argument indicated the jury would be ridiculed or criticized in the community where the crime was committed unless they convicted him. He contends this line of talk falls within the spectrum of misconduct denounced in Stasel v. Commonwealth, Ky., 278 S.W.2d 727. In that case this Court reversed a conviction because the Commonwealth’s attorney stated in his closing argument what the people of the county would think of the jury if they found the defendant not guilty. It was reasoned that this was the same as telling the jury, with the trial court’s approval, that if they rendered a verdict of acquittal they would receive the public disapproval of the citizens of the county.

The language we have quoted does not even remotely convey such a thought. Rather, as we view it, the jurors were merely told they had the duty of enfotcing the law “when the proper case” comes along and, as the case before them was a proper one that imposed upon them the obligation to uphold the law, they should see that it be “enforced to the highest degree.”

Wherefore, the judgment is affirmed.

On Motion for Rehearing

Rehearing denied.

WILLIAMS, Judge

(dissenting).

If, as Haddad offered to prove, the recording complied with basic standards of reliability (see Commonwealth v. Brinkley, Ky., 362 S.W.2d 494), was made with Henderson’s knowledge, and consisted only of appropriate impeaching matter, I can see no possible justification for excluding it. Certainly it should be admissible if, as held in such cases as Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462, and Commonwealth v. Brinkley, Ky., 362 S.W.2d 494, recordings of statements by the defendant in a criminal case may be admitted as substantive evidence, even where the defendant was not aware that the recording was being made.

The decision in United States v. McKeever, 2 Cir., 271 F.2d 669, does not stand for the proposition that tape recordings are not usable for the purpose sought and under the circumstances existing in the instant case. In McKeever, the reason the recording was held unusable for impeachment purposes was that it contained a great many self-serving statements by the defendant (the taped conversation was between the defendant and a witness) which could not effectively be eliminated so as to present to the jury only the impeaching statements of the witness. The court said that to permit the playing of the recording with the defendant’s statements therein would in effect amount to allowing the defendant to testify without being sworn and without opportunity for his being cross-examined. There is no such problem here, because the only statements desired to be played to the jury were those of the witness sought to be impeached. The ruling in McKeever that because documents used to refresh the recollection of a witness cannot be read to the jury, a recording cannot be played to the jury for that purpose, is of no application here, since the recording here involved was not sought to be read to refresh recollection.

It is my opinion that the trial court erred in denying permission to the defendant to show that the recording complied with the appropriate standards of reliability, and then to play to the jury the impeaching statements. It is my opinion also that the disputed testimony of Henderson was of sufficient importance to require the conclusion that the error was prejudicial.

I therefore respectfully dissent.

MILLIKEN and PALMORE, JJ., join in this dissent.


author: STEWART, Judge.

text:
    Richard BRUNNER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 11, 1965.
    As Modified on Denial of Rehearing Nov. 5, 1965.

      John D. Miller, Owensboro, for appellant.
    Robert Matthews, Atty. Gen., David A. Schneider, Asst. Atty. Gen., Frankfort, for appellee.
   STEWART, Judge.

Richard Brunner was found guilty on two counts of knowingly receiving stolen property in violation of KRS 433.290. His punishment was fixed at confinement in the penitentiary for three years on each count. He appeals.

Before the first and the second trial of this case, appellant petitioned for a change of venue. In conformity with KRS 452.-220(1), he filed notice in writing with the circuit court clerk of the time when his application in this respect would be made. This notice was directed to be and was served upon the Commonwealth’s attorney. Thereafter, on the day fixed by the notice, he filed his verified application, together with two affidavits. See KRS 452.220(2). The affiants in both affidavits stated they were persons “of good character, not kin to, or of counsel for, the defendant.” Attached to the application as exhibits, and referred to therein, were 19 news items which had dealt with the commission of the crime. Some of these had done so at some length.

The application recited that the alleged facts upon which appellant’s indictment was based, embracing 21 counts, had been given wide-spread publicity through several news media in Daviess County, namely, by commentary over two radio stations and by articles appearing in the Owens-boro Messenger & Inquirer, a local newspaper. This publicity, he averred, had tended to create toward him a feeling of bitterness in the minds of the public which was so embedded that it had prejudiced the people of Daviess County against him.

The affiants in the two affidavits stated they were personally “aware of the extreme animosity, bitterness and prejudice prevailing throughout Daviess County” toward appellant and, because of this feeling, they believed he could not receive a fair and impartial trial if his case should be tried in that county. They also said they had read the statements set forth in the application and believed they were true.

It was brought out that Murphy-Miller, Inc., a manufacturer of furniture in Owensboro, whose stolen furniture valued at many thousand dollars appellant was charged with having feloniously received, is an old and established business; and that Mr. Steve Murphy, the president of that company, is a well-known business man in Owensboro and Daviess County.

The Commonwealth filed no counteraf-fidavits in opposition to the application, nor was any hearing ever had on it; the trial judge merely entered an order denying the application.

A first trial of this case resulted in a hung jury. Thereafter, and before a second trial, upon due notice to the Commonwealth’s attorney, an application, similar in all respects to the first, was filed. This was supported by four affidavits, and the aver-ments in each of them were almost identical with those contained in the application.

This latter application, supported by the four affidavits, received the same inattention by the Commonwealth as the first one. The trial court again denied the application without holding a hearing. After the second trial, however, and after appellant had filed his motion and grounds for a new trial, the Commonwealth filed the affidavits of four persons. These documents were aimed at retroactively refuting statements made in appellant’s second application and the averments in the four affidavits accompanying ' it. The Commonwealth’s affidavits were similar in context and each affiant therein, after stating he was familiar with the newspaper, radio and television accounts in respect to the offenses of which appellant was charged, said he believed “it is possible and probable that an unprejudiced, unbiased and unopinionated jury” could be procured to try appellant’s case in Daviess County.

The Commonwealth argues that, since appellant never at any time indicated he desired to be heard on his application, he cannot now claim he was entitled to have this matter passed upon and determined. We do not agree. The law is abundantly clear that a change of venue should be granted when a defendant complies with the statutory provisions set forth in KRS 452.220, if the Commonwealth fails to controvert the application by counter affidavits or by testimony. See Roberson’s New Kentucky Criminal Law and Procedure (2nd Ed.), sec. 162, p. 254, where the rule is unequivocally stated:

“If the defendant complies with the statute by filing his petition, together with requisite affidavits in support of it, he then has made a prima facie case, and if no witnesses are introduced by either party, the trial- court has no discretion in the matter, but the defendant is entitled to a change in venue as a matter of right, and the change should be made, and it is reversible error not to make it.”

See also Manning v. Commonwealth, Ky., 346 S.W.2d 755; Greer v. Commonwealth, 111 Ky. 93, 63 S.W. 443; Higgins v. Commonwealth, 94 Ky. 54, 21 S.W. 231.

We conclude the facts presented in this case were sufficient to justify a change of venue, and the trial court erred prejudicially when it failed to grant appellant’s application. The four affidavits of the Commonwealth filed ex post facto could not be considered as countering appellant’s application and affidavits. Obviously, it was then too late to determine the question of whether appellant should be tried in Daviess County after he had already been tried there.

Another reason we believe the judgment of conviction should be reversed is because the trial judge committed a prejudicial error in failing to vacate the bench upon appellant’s motion that he should do so.

Appellant, pursuant to KRS 23.230(1), filed an affidavit with the circuit court clerk wherein he requested the trial judge, the Honorable Thomas J. Hennessy, to vacate the bench. The substance of this request disclosed that one James S. Bennett, a prosecuting witness, had purchased certain articles of stolen merchandise from appellant for the use of two small corporations, which the presiding judge owned with Bennett and with whom he served as an officer and director thereof.

Based upon the foregoing averments, appellant, on oath, stated that he did not believe Judge Hennessy would preside over his trial in an impartial manner.

The trial judge declined to vacate the bench, giving as his reasons for refusing to do so that James S. Bennett was only one of twenty or more witnesses who would testify against appellant; that the amounts of the purchases by the two corporations were small as compared to the total amount involved; and that he, the presiding judge, had no prejudice against appellant.

When the affidavit is considered, together with the trial judge’s response thereto, it is our opinion the latter could not properly preside at the trial of appellant. Upon a return of this case for retrial Judge Hennessy is directed to vacate the bench.

Other errors are urged for a reversal of the judgment of conviction, but we reserve consideration of them.

Wherefore, the judgment is reversed with directions that a new trial be granted.

PALMORE, J., not sitting.


author: HILL, Judge.

text:
    George T. MARTIN, Jr., Appellant, v. BEN P. EUBANK LUMBER COMPANY, Appellee.
    Court of Appeals of Kentucky.
    Oct. 1, 1965.
    Rehearing Denied Nov. 26, 1965.

      Robin Griffin and Miller, Griffin & Marks, Lexington, for appellant.
    F. Selby Hurst, Thomas H. Burnett, Lexington, for appellee.
   HILL, Judge.

Appellant seeks to reverse a judgment entered pursuant to the verdict of the jury in his suit for a discount of ten per cent of the amount of building materials furnished him by appellee under a verbal contract.

Appellant complains the trial court erred in: (1) Refusing to require appellee to disclose the names of other persons dealing with appellee and the nature of their contracts, and (2) instructing the jury.

Appellant contends it was agreed he should have ten per cent discount on the amount of materials purchased from ap-pellee. Appllee denies there was such agreement. Appellant contends only Ben P. Eubank, Jr. was present when the agreement was reached. Appellee contends there were two other persons present.

The interrogatories filed by the appellant sought the names of other persons to whom appellee sold building supplies, as well as the nature of contracts under which such materials were so furnished. Appellee answered these interrogatories in part by admitting that some persons purchasing supplies were given discounts but declined to give the names of such customers. Appellant contends KRS 355.1— 205 makes competent such evidence. With this contention we do not agree. Certainly, “course of dealing between parties” and “any usage of trade” may be competent to explain any ambiguities in a contract; this does not mean that a course of dealing or trade usage may be used to make a contract between parties. In the present case, the whole issue is whether or not there was an agreement to give appellant ten per cent discount on his purchases. The term “ten per cent” is a plain term requiring no trade usage or custom to determine its meaning. We conclude appellant was not entitled to this information.

Appellant complains that he was entitled to a directed verdict for $180, which represents ten per cent of the amount he actually paid on his account. Appellee admits it sometimes gave some of its customers a ten per cent discount but only when the full amount of the account was paid before the 10th of the month following purchases. Assuming for the purpose of discussion there was an agreement to give appellant a ten per cent discount on his purchases, the evidence in this case shows that at the time he paid $1,800 on his account to appellee he owed more than $8,000; and according to the testimony and the findings of the chancellor, the ten per cent discount was only given to persons who paid their accounts before the 10th of the month following the date charged.

So, we have a finding by the chancellor of a question of fact. The rule that such findings will not be disturbed unless clearly erroneous is well settled. CR 52.01. We do not think that the findings of the chancellor were clearly or at all erroneous. It is admitted that beginning late in 1962 and continuing through October 1963 appellant was sent itemized statements of his account showing the items charged to the separate houses under construction. During this period, according to the testimony, appellant paid approximately $16,000 on his account without raising any question concerning the ten per cent discount claimed herein.

We think the appellant’s objection to the instruction is without merit because the jury was used by the chancellor in an advisory capacity only. He had the power to give the verdict such weight as he saw fit, even to the extent of ignoring it. Twyford v. Huffaker, Ky., 324 S.W.2d 403 (1958); Yance’s Adm’r v. Foreman, 7 Ky.Op. 158.

The judgment is affirmed.


author: RENFRO, Justice.

text:
    AMERICAN MOTORISTS INSURANCE COMPANY, Appellant, v. Ernestine WILLIAMS, Appellee.
    No. 16670.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 15, 1965.
    Rehearing Denied Nov. 12, 1965.
    Stone, Parker, Snakard, Friedman & Brown, and Gary Cole, Fort Worth, for appellant.
    Woodruff, Hill, Bader & Kendall, and John B. Wilson, Jr., and David M. Kendall, Jr., Dallas, for appellee.
   RENFRO, Justice.

Based on jury findings of total and permanent disability, judgment was entered for plaintiff Ernestine Williams against defendant American Motorists Insurance Company.

No complaint is made by defendant that the evidence is insufficient to support the jury findings.

Defendant’s first two points of error are based on the action of the court in permitting plaintiff’s counsel to read into evidence passages from a medical treatise, and in failing to instruct the jury that such passages were not to be considered as direct evidence of the truth of the matters therein stated.

During the cross-examination of one of defendant’s doctor witnesses, he was asked if he was familiar with the study done by, among others, Dr. Spurling in the field of ruptured discs. The witness answered that he was. He was then asked if those named were authorities in that field. He answered, “Yes, they are, but not with a particular patient that I might be seeing.” He answered further that those mentioned, including Dr. Spurling, were generally conceded to be authorities on the subject of ruptured discs. Plaintiff’s attorney then read several statements from Dr. Spurling’s books. The witness agreed with some of the statements and disagreed with others.

When a doctor testifies as an expert relative to injuries or disease he may be asked to identify a given work as a standard authority on the subject involved; and, if he so recognizes it, excerpts therefrom may be read not as original evidence but solely to discredit his testimony or to test its weight. Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779 (1949); Gulf, C. & S. F. R. Co. v. Farmer, 102 Tex. 235, 115 S.W. 260 (1909).

Since the witness recognized Dr. Spurling as an authority in the field of ruptured discs, it was not error, under the holdings of the above cases, for the court to permit plaintiff’s attorney to question him concerning some of the opinions stated by Spurling.

The evidence being admissible to test the credibility of the witness or to discredit same, the duty was on defendant, as the objecting party, to request the trial court to limit consideration to those issues. Hogan v. Cunningham, 278 S.W.2d 265 (Amarillo Civ.App., 1954, no writ hist.); Singleton v. Carmichael, 305 S.W.2d 379 (Houston Civ.App., 1957, ref., n. r. e.); Neff v. Johnson, 391 S.W.2d 760 (Houston Civ.App., 1965).

No such request was made. The points of error are overruled.

Defendant’s attorney was called as a witness by plaintiff and asked, “I will ask you whether or not your file reflects any correspondence from me to American Motorists Insurance Company, in behalf of Mrs. Williams, asking for a myelogram test in the hospital be authorized for Mrs. Williams?” (Emphasis ours.) The witness, after objecting that such testimony would be hearsay and violate attorney-client privilege, answered, “Yes, Sir.” The letter being from plaintiff’s attorney to defendant, neither of the objections is tenable.

Moreover, defendant never denied it had been requested to furnish a myelogram test, and never contended it ever authorized such test.

The request by plaintiff was not a statement that she had a ruptured disc, but a mere request that the test be given in order that it might be determined whether she did. It was not inadmissible, therefore, as a self-serving declaration.

In its fourth point defendant contends the alleged errors discussed above, plus jury argument advising the jury of the effect of their answers to special issues, and improper references to myelogram procedure amounted to cumulative error warranting a reversal.

In defending his client’s credibility plaintiff’s attorney argued, “What has she got to gain if she is lying? Well, what she has got to gain is a maximum of $35.00 a week for a maximum of 401 weeks, and she has been off work now for over two years. She hasn’t been paid. She hasn’t gotten anything since the first week in March of 1963. She has given up her job, which she started out at $70.00 per week.”

No objection was made to the argument.

It was undisputed that plaintiff’s salary had been $70.00 per week at the time of injury and the defendant had paid her $35.00 per week for a period of time after the accident.

While we do not approve the argument made by plaintiff’s counsel, we believe the error was of the curable type. Texas Employers’ Insurance Association v. Rubush, 337 S.W.2d 501 (Fort Worth Civ.App., 1960, ref., n. r. e.); Argonaut Insurance Company v. Titus, 347 S.W.2d 372 (Fort Worth Civ.App., 1961, no writ hist.) ; Texas Employers Insurance Association v. Jackson, 366 S.W.2d 599 (Waco Civ.App., 1963, ref., n. r. e.); Texas Employers’ Insurance Association v. Rigsby, 273 S.W.2d 681 (Beaumont Civ.App., 1954, no writ hist.); Traders & General Insurance Company v. Smith, 311 S.W.2d 91 (Texarkana Civ.App., 1958, ref., n. r. e.); Texas Employers’ Insurance Association v. Logsdon, 278 S.W.2d 893 (Amarillo Civ.App., 1954, ref., n. r. e.).

The argument concerning procedure in myelogram tests was based on the evidence, or was a reasonable inference drawn from the evidence. No objection was made to the argument. If there was error in the argument it, too, could have been cured by proper instruction.

The test in determining whether reversible error is present is the degree of prejudice flowing from the argument, whether the argument, considered in its proper setting, was reasonably calculated to cause such prejudice to the opposing litigant that a withdrawal by counsel or an instruction by the court, or both, could not eliminate the probability that it resulted in an improper verdict. Texas Employers’ Insurance Association v. Haywood, 153 Tex. 242, 266 S.W.2d 856 (1954); Rule 434, Texas Rules of Civil Procedure.

Based upon a careful study of the entire record, we cannot say the arguments, singly or cumulatively, were such as were reasonably calculated to cause and probably did cause the rendition of an improper verdict.

Affirmed.


author: LANGDON, Justice.

text:
    O. R. COLWELL et ux., Appellants, v. Morton Gause WARE et al., d/b/a Gause-Ware Funeral Home, Appellees.
    No. 16659.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 15, 1965.
    Rehearing Denied Nov. 12, 1965.

      Herrick & Tillman, and Massie Tillman, Fort Worth, for appellants.
    Bailey & Williams, and James C. Allums, Jr., Dallas, for Crane & Breed Casket Co.
    Brown, Day & Crowley, and M. Hendricks Brown, Fort Worth, for Arkansas Casket Co.
    Simon, Crowley, Wright, Ratliff & Miller, and Kleber C. Miller, Fort Worth, for Gause-Ware Funeral Home.
   LANGDON, Justice.

Appellants (plaintiffs below) filed suit against Morton Gause Ware and Mary Louise Ware Rogers, d/b/a Gause-Ware Funeral Home, for breach of an express and implied warranty of a casket. Mr. Gause Ware and Mrs. Rogers answered and filed a third party complaint against Crane and Breed Casket Company, manufacturer of the casket and against Arkansas Casket Company, from whom Gause-Ware Funeral Home purchased the casket, seeking indemnity against Crane and Breed and Arkansas upon their warranties. The third party defendants answered, and the case was tried upon its merits before a jury.

The parties will be referred to hereafter as the Colwells (appellants), Gause-Ware (original defendant), Crane and Breed (third party defendant), and Arkansas (third party defendant).

Plaintiffs’ child, Rocky Colwell, died April 22, 1962. On the same day his grandmother, Mary M. Colwell, signed a written contract titled “Funeral Service Order and Agreement” with Gause-Ware covering arrangements for preparation for burial and funeral.

On Monday, April 23, 1962, plaintiffs and Mary Colwell met with Mr. Crews, funeral director for Gause-Ware. They went to the Arkansas Casket Company to select a casket. A five foot casket was needed and Gause-Ware did not have one. While at Arkansas, plaintiffs selected an “Ever-Seal” casket which had with it a booklet and written warranty from the manufacturer stating it had been tested air and water tight.

On April 24, 1962, Rocky Colwell’s body was interred at Rose Hill Cemetery inside the “Ever-Seal” casket. At that time there was no visible evidence of any defect in the casket — it did not appear damaged in any way.

On July 8, 1962, plaintiffs visited the grave and found it sunken in and wet from a sprinkler. Plaintiffs returned to the grave the following day. It was still full of water. The cemetery personnel were requested to disinter the casket. Upon removal from the grave, the casket was found to contain water. A handle was bent on the end where water was leaking out. On December 31, 1962, plaintiffs filed suit for damages for their alleged mental anguish and suffering allegedly caused by a breach of the express and implied warranty of Gause-Ware that the original casket was air and water tight.

The jury in answer to special issues one through eight found that (1) Crews, director of Gause-Ware, told the plaintiffs that the casket was air and water tight; (2) at the time of interment it was air and water tight; (3) before it was removed from the grave it contained water; (4) Crane and Breed warranted the casket to be air and water tight; (5) Arkansas adopted the Crane and Breed warranty; (6) Crews relied on such warranty in selling the casket; (7) the casket was air and water tight when delivered by Crane and Breed to Arkansas; and (8) the presence of water in the casket was not due solely to the manner in which the casket was handled at the cemetery on July 9, 1962 (date of disinterment). There was no issue on handling by cemetery on April 24, 1962, date of interment. Based upon these findings the trial court rendered judgment that appellants take nothing by their suit and discharged all defendants. We affirm.

“The rule now is that, unless otherwise expressed, a general warranty as to quality relates to the time of the sale and does not cover future defects.” McCown v. Jennings, 209 S.W.2d 408 (Fort Worth Civ.App., 1948, no writ hist.). See also 55 C.J., “Sales”, pp. 744-745, §§ 714-715; 77 C.J.S. Sales § 321 p. 1172; and Sam White Oldsmobile Co. v. Jones Apothecary, Inc., 337 S.W.2d 834 (Houston Civ.App., 1960, ref., n. r. e.).

“A warranty may, by the agreement of the parties, be made a continuing one, as, for example, for a fixed length of time, or for a reasonable time for the discovery of defects, or, in the case of a contract contemplating future deliveries or deliveries from time to time, coextensive with the agreement; or the subject matter of the contract may be such as to imply its continuance.” 77 C.J.S. Sales, supra.

It is our opinion that under the facts of this case that any oral express warranty which may have existed at the time of the sale did not extend some seventy-five days into the future and contemplate the damaging and unusual hazards to which this casket was subjected.

The evidence in this record reflects that the casket in question was in “good shape” and undamaged to the moment it was resting on a stand over the grave awaiting the time it was to be lowered and the grave filled. From that moment on the casket was under the control of the personnel of the cemetery and Gause-Ware had no further control over it.

The appellants seek reversal, primarily upon their contention that the court erred in entering judgment for the defendants because (1) the jury’s answer to Special Issue No. 2 is not an affirmative finding based on a preponderance of the evidence; (2) the evidence is insufficient to support the finding and is against the great weight and preponderance of the evidence; and (3) the judgment was based on the theory that the warranty did not extend past the time of delivery.

We have carefully considered all of the evidence, both favorable to the verdict and that militating against it, and have concluded that the jury’s findings have ample support in the record and are not contrary to the overwhelming weight and preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 650 (1951) ; Tudor v. Tudor, 158 Tex. 559, 314 S.W.2d 793 (1958).

No objection was made by appellants to the form of the issue submitted. The jury was instructed to answer either “It was air and water-tight” or “It was not air and water-tight”. The casket was either air and water tight or it was not. The appellants had the burden of proving a negative — that the casket was not air and water tight. This they failed to do. See Rosenthal Dry Goods Co. v. Hillebrandt, 7 S.W.2d 521 (Tex.Com.App., 1928, no writ hist.).

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


author: CADENA, Justice.

text:
    FIREMEN AND POLICEMEN’S PENSION FUND BOARD OF TRUSTEES OF SAN ANTONIO, Texas, Appellant, v. Joaquin B. GUERRERO, Appellee.
    No. 14388.
    Court of Civil Appeals of Texas. San Antonio.
    Sept. 22, 1965.
    Rehearing Denied Oct. 27, 1965.
    Harvey L. Hardy, San Antonio, for appellant.
    Franklin S. Spears, San Antonio, for appellee.
   CADENA, Justice.

This is an appeal by the Firemen and Policemen’s Pension Fund Board of the City of San Antonio, Texas, hereinafter designated as the “Board,” from a judgment of the trial court setting aside the action of the Board in reducing the pension of appellee, Joaquin B. Guerrero, plaintiff below.

In November, 1951, plaintiff, then a member of the Police Department of the City of San Antonio, applied to the Board for a disability pension under the provisions of Section 10 of Art. 6243f, Vernon’s Ann. Tex.Stats. At that time plaintiff complained of a condition in his legs, particularly the knee joints, which made it impossible for him to perform his duties as a policeman.' After the Board had denied his application for a pension, plaintiff filed suit in a district court of Bexar County. In 1952 the trial court in that case entered judgment finding that plaintiff was so permanently disabled as to incapacitate him from performing his duties in the Police Department, and decreeing that plaintiff was entitled, as of November 4, 1951, to a pension in the amount of $122.50 per month “so long as plaintiff is disabled.” The amount of pension awarded plaintiff under this judgment was the maximum disability pension payable under the provisions of the statute.

In 1961 the Board, acting under the provisions of Sec. 15 of Art. 6243f, directed plaintiff to submit to a physical examination by Dr. P. L. Day and Dr. David Oliver for the purpose of determining whether there had been any change in the degree of plaintiff’s disability. On November 30, 1961, the Board, after a hearing at which it considered the reports of such doctors and of plaintiff’s personal physician, reduced plaintiff’s pension to $49.00 per month. This represented the maximum reduction permissible under the statute in a case involving a pensioner who, like plaintiff, had served five years in the Police Department.

Plaintiff then filed the instant suit and on November 17, 1964, the court below, finding that there was no substantial evidence to support the Board’s action, entered judgment ordering the Board to reinstate plaintiff’s pension of $122.50 per month. The judgment also awarded plaintiff the sum of $2,646.00, representing the difference between $122.50 per month and the sum of $49.00 per month which had been paid to plaintiff during the period from November 30, 1961, to October 30, 1964.

Both parties agree that the Board’s order reducing plaintiff’s pension must be upheld if it is reasonably supported by substantial evidence produced during the trial in the district court. See Board of Firemen’s Relief and Retirement Fund Trustees of Houston v. Marks, 150 Tex. 433, 242 S.W.2d 181, 27 A.L.R.2d 965 (1951).

In the trial court the parties stipulated that medical reports of doctors who had examined plaintiff prior to November 30, 1961 (the date of the reduction in the pension) could be introduced in evidence “as if the same were the sworn testimony of such doctors.” The Board, under this stipulation, introduced the medical reports prepared by Dr. Oliver and Dr. Day, to whom plaintiff had reported for examination in September, 1961.

The report of Dr. Oliver stated that plaintiff moved about the examination room and the examining table with complete ease and with no apparent pain or discomfort, and that there was full range of painless motion in both knees. Dr. Oliver found no swelling or diffusion in either knee joint, nor any indication of rheumatoid arthritis or of any degenerative or hypertrophic osteoarthritic changes beyond that to be expected in a man of plaintiff’s age. Dr. Oliver concluded that plaintiff had had a condition in both knees known as intermittent hydrops of the knees, but, finding no evidence of disability relating to the knees or lower extremities, he stated that, in all probability, such condition had terminated.

Dr. Day’s report states that an examination of plaintiff revealed that he walked with a normal gait and that the appearance of his ankles and knees was normal. He found full range of movement in the ankle and knee joints in all directions. The x-rays taken at Dr. Day’s direction revealed no significant abnormalities of the bone structures other than some minimal arthritic change commensurate with plaintiff’s age. Dr. Day, after concluding that plaintiff, in September of 1961, was not significantly disabled by any conditipn involving the lower extremities, mentioned the possibility “that some anxiety state secondary to the problem with his pension is responsible for the complaints he has described in the lower extremities.”

Dr. R. O. Monsalvo, an orthopedic surgeon, testified on behalf of plaintiff. He had examined plaintiff in 1949, 1951, 1952, 1961, and 1964. He testified that in 1952 plaintiff experienced pain in the knees which became more pronounced upon excessive walking or prolonged standing, and that tests performed by him at that time revealed abnormal sedimentation rates. He stated that plaintiff was suffering from a chronic type of progressive osteoarthritis with an associated osteochondritic condition, and that plaintiff’s condition was essentially the same in 1961 as in 1952, “if not worse.”

Dr. Monsalvo agreed that findings based on study of x-rays of plaintiff’s legs were “minimal,” but he said that plaintiff’s disability was difficult to determine from x-rays alone, and that unless plaintiff was examined “clinically,” there would be a tendency to minimize the degenerative changes revealed by the roentgenograms.

Plaintiff testified, in effect, that his condition in 1961 was worse than at the time when he was granted his original pension. He described his difficulty in standing for long periods of time and said it was impossible for him to walk more than a few blocks without experiencing pain and swelling of the knees.

The record, thus, reflects a sharp conflict in the testimony concerning plaintiff’s condition at the time his pension was reduced. The Board’s testimony reflects that in 1961 plaintiff was suffering from no significant disability. The evidence offered on behalf of plaintiff, on the other hand, indicates that plaintiff’s condition is at least as bad as it was when he was originally pensioned.

Plaintiff advances two theories in support of the trial court’s finding that the order of the Board reducing his pension is not supported by substantial evidence. (1) He asserts that the medical reports introduced by the Board lack probative value because Dr. Oliver and Dr. Day did not, in fact, examine him. (2) He contends that the action of the Board must be set aside because there is no substantial evidence that there has been a change in the degree of plaintiff’s disability since the time that he was originally pensioned.

Plaintiff testified that Dr. Oliver’s examination was restricted to questions relating to plaintiff’s name, address and age. Dr. Day, according to plaintiff, also limited himself to questions relating to the identity, age and address of plaintiff, although he did direct plaintiff to have some x-rays taken.

However, the medical reports themselves effectively contradict plaintiff’s testimony. Dr. Day’s report states that the findings and conclusions embodied therein were based “on examination.” Dr. Oliver’s report asserts that his findings were revealed by “physical examination,” and it describes plaintiff’s movements not only in the examination room, but on the “examining table.” This report further refers to statements made by plaintiff to Dr. Oliver which would not have been elicited if the consultation had been limited to questions concerning plaintiff’s name, age and address.

The reports of Dr. Oliver and Dr. Day, admitted into evidence pursuant to the stipulation set out above, constitute substantial evidence which supports the finding by the Board that plaintiff was not significantly disabled in 1961. 53 Tex.Jur. 2d, Stipulation, Sec. 7, p. 319, and Sec. 8, p. 320; Switzer v. Mullally, 7 Cal.App.2d 444, 46 P.2d 215.

Plaintiff’s second contention is that there is no substantial evidence supporting a finding that there had been any change in the degree of his disability since 1951. Sec. 15 of Art. 6243f authorizes a change in the amount of a pension only if there has been a change in the degree of the pensioner’s disability. There is substantial evidence of such a change.

In 1952, at the time the district court ordered the Board to grant plaintiff a pension of $122.50 a month, Sec. 10 of Art. 6243f provided that no person should be awarded a pension “until disability has been proved to be continuous and wholly incapacitating for a period of not less than ninety (90) days.” The 1952 judgment was, therefore, necessarily based on a judicial finding that plaintiff was wholly incapacitated. If plaintiff’s disability in 1952 was such as to be “wholly incapacitating,” and in 1961 there was no “significant disability,” it must be concluded that there has been a decrease in the degree of plaintiff’s disability.

Since there is substantial evidence which reasonably supports the finding that there has been a decrease in the degree of plaintiff’s disability since the time he was originally granted his pension, it follows that the trial court erred in setting aside the action of the Board.

The judgment of the trial court is reversed and judgment here rendered that plaintiff take nothing.


author: GRISSOM, Chief Justice.

text:
    W. W. HICKS et ux., Appellants, v. O. L. HICKS, Appellee.
    No. 3990.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 10, 1965.
    Rehearing Denied Oct. 29, 1965.
    John A. Menefee, Rankin, for appellants.
    Bradbury, Tippen, Brown & Clement and Bryan Bradbury, Abilene, for appellee.
   GRISSOM, Chief Justice.

O. L. Hicks sued W. W. Hicks and wife in Taylor County. The defendants filed pleas of privilege to be sued in Upton County, where they reside. Their pleas of privilege were overruled and they have appealed.

The pleas of privilege were overruled upon the theory that plaintiff’s suit was for the recovery of lands or damage thereto within the meaning of exception 14, Article 1995, Vernon’s Ann.Civ.St. It was brought in the county in which the land in controversy is located. The precise question presented is whether plaintiff’s petition and controverting affidavit show that this is a suit for the recovery of land or damage thereto within the meaning of said exception to the venue statute. The plaintiff, O. L. Hicks, who is the appellee here, alleged he was the father of W. W. Hicks and, because of that relationship, they entered into an agreement that the land in question would be purchased by and title taken in the name of the defendants but that the plaintiff would be permitted to pay the defendants the $3,000.00 which they had paid for the land and when and if the plaintiff paid the $3,000.00 to the defendants they would then convey the land to the plaintiff. Plaintiff alleged he had paid most of the $3,000.00 to the defendants but they refused to execute a deed to him and were claiming title to the land. Plaintiff prayed for a judgment impressing a constructive trust on the land and adjudging title and possession to the plaintiff. Plaintiff filed a controverting affidavit in which he alleged that the District Court of Taylor County had venue under exception 14, Article 1995, because the cause of action alleged by the plaintiff was based upon an agreement that the defendants would take title to the land and when plaintiff paid them $3,000.00 they would then convey it to him. The allegations in the controverting affidavit end with the erroneous legal conclusion that the cause of action asserted is for the recovery of land. Plaintiff contends defendants took title in trust although the facts alleged show that was no agreement to take title in plaintiff’s name, or jointly with him and defendants, and that plaintiff paid no part of the purchase price. A constructive trust arose, if at all, at the time of the conveyance. Cohrs v. Scott, 161 Tex. 111, 338 S.W.2d 127, 130; Morrison v. Farmer, 147 Tex. 122, 213 S.W.2d 813.

In Calvert v. Greene, Tex.Civ.App., 326 S.W.2d 592, under a materially different state of facts, the court laid down the rule applicable here when it said:

“In determining the question of whether this case is a suit for title to real estate, or one for breach of a contract for the conveyance of real estate, or a suit for specific performance, the test is whether the agreement alleged was one in which title was to be taken in the names of both plaintiff and defendants, or was one in which title was to be taken in the names of defendants, and they in turn agreed to convey an interest therein to plaintiff. In the first case the agreement vests a present interest in the title to land in plaintiff, and is a suit for land, within the provisions of Subd. 14, Art. 1995, Vernon’s Ann.Civ.Stats. In the second case it is a suit for breach of contract or specific performance and may not be maintained in the county in which the land is situated, under such subdivision.”

In Smith v. Hall, 147 Tex. 634, 219 S.W.2d 441, our Supreme Court said that assuming the agreement alleged was a contract to convey land, nevertheless, the case did not come within exception 14 of Article 1995. It further said:

“The decisions of this court for many years have been uniformly to the effect that a suit for specific performance of a contract to convey an interest in land, or for damages for breach of such contract, does not come under the provisions of the venue statutes relating to suits for the recovery of lands or damages thereto. Hearst’s Heirs v. Kuykendall’s Heirs, 16 Tex. 327; Miller v. Rusk, 17 Tex. 170; Cavin v. Hill, 83 Tex. 73, 18 S.W. 323. In Miller v. Rusk, supra, the court said, 17 Tex. at page 172:
‘Where the suit is upon the contract, whether it be to compel the specific performance of it, or to recover damages for its breach, it is not a suit for the “recovery of land or damages thereto,” and consequently is not within the exception and rule of the Statute, which requires the suit to be brought in the county where the land lies, though it be not the county of the defendant’s residence.’ ”

(See also Milburn v. Minette, Tex.Civ.App., 278 S.W.2d 269.)

Plaintiff alleged in effect that when the defendants purchased the realty in controversy and paid $3,000.00 for it that defendants orally agreed to convey the land to plaintiff when and if he paid them the $3,000.00 they had paid for the land. This suit is simply an attempt to enforce an oral contract to convey realty. It was not alleged that plaintiff paid any part of the purchase price. The suit is to compel performance of said contract. It is not a suit for the recovery of land or damage thereto within the meaning of exception 14, Article 1995.

The judgment is reversed and the case is ordered transferred to Upton County.


author: McDONALD, Chief Justice.

text:
    Wilmer WALKER, Temporary Administrator of the Estate of Teller Walker, Deceased, et al., Appellants, v. James Alton KELLEY, Appellee.
    No. 4377.
    Court of Civil Appeals of Texas. Waco.
    Oct. 21, 1965.
    Rehearing Denied Nov. 4, 1965.
    Long, Strong, Jackson & Strong, Carthage, for appellants.
    W. Richard Davis, Dallas, for appellee.
   McDONALD, Chief Justice.

Appellants gave notice of appeal from an adverse judgment. Transcript and Statement of Facts were due to be filed in this court on May 7, 1965. Extensions of time for filing same were granted by this court to August 5, 1965, and to October 5, 1965. Transcript and Statement of Facts were not filed on October 5th, 1965, and no request for further extension of time was filed prior to October 5th, 1965. On October 13, 1965 appellants filed a motion for further extension of time in which to file Transcript and Statement of Facts.

Since the time for filing Transcript and Statement of Facts, as heretofore extended, has expired, this court does not have and cannot acquire jurisdiction to grant further extension of time. Tian v. Kempenski, Tex.Civ.App. (n. w. h.), 275 S.W.2d 165; Rule 356, Texas Rules of Civil Procedure.

Motion for further extension of time is dismissed, and the attempted appeal is dismissed, for want of jurisdiction.


author: ARCHER, Chief Justice. HUGHES, Justice.

text:
    AMERADA PETROLEUM CORPORATION et al., Appellants, v. RAILROAD COMMISSION of Texas et al., Appellees.
    No. 11327.
    Court of Civil Appeals of Texas. Austin.
    June 30, 1965.
    Rehearing Denied Nov. 17, 1965.
    John S. Miller, Thomas W. Lynch, Tulsa, Okl., Kenneth C. Minter, Houston, Mc-Ginnis, Lochridge, Kilgore, Hunter & Wilson, B. D. St. Clair, Frank Douglass, Austin, for appellant.
    Waggoner Carr, Atty. Gen., Hawthorne Phillips, 1st Asst. Atty. Gen., T. B. Wright, Executive Asst. Atty. Gen., J. Arthur Sand-lin, Linward Shivers, Asst. Attys. Gen., Austin, McLemore & McLemore, B. Reagan McLemore, Longview, Clark, Thomas, Harris, Denius & Winters, James H. Keahey, Austin, for appellee.
   ARCHER, Chief Justice.

This is an appeal from a Railroad Commission Rule 37 order permitting L & G Oil Company to plug back and redrill 5 abandoned wells, Nos. 2, 5, 6, 7 and 8, on its T. W. Lee lease, East Texas Field. Following the issuance of the order, appellants filed suit in the 53rd District Court of Travis County, to set aside the order. The trial court granted the defendants’ Motion for Summary Judgment and entered judgment upholding the order of the Commission.

The appeal is based on six points to the effect that the trial court erred in granting a summary judgment because as a matter of law the defendant had abandoned the 5 wells in question; in holding that the Commission had no jurisdiction to consider the contractual rights of the parties; in upholding the validity of the permit; in holding that the granting of a permit to plug back and redrill 5 wells was controlled by the so-called rule of the Harrington case; in holding that the 1948 judgment in Humble v. Lewis did not preclude the Commission from granting a permit to plug back and redrill the 5 wells, and in sustaining defendants’ Motion for Summary Judgment upholding the granting of the permit to re-drill the 5 wells when unnecessary to prevent waste or confiscation. The Commission entered the following order which is the subject of this appeal:

The application of L & G Oil Company for an exception under the provisions of Rule 37 coming on to be heard on the 16 day of April , 1964, by the Railroad Commission of Texas, and it appearing that the petition shows good cause; that no injustice will be done by the granting of such exception, and that same should be granted to prevent confiscation and or to prevent physical waste:
NOW, THEREFORE, IT IS ORDERED: That the application of L & G Oil Company for an exception under the provisions of Rule 37 and a permit to redrill and straighten Wells Nos. 2, 5, 6, 7 & 8, T. W. Lee Lease containing 73.64 acres of land in the Wm. Robinson Survey, East Texas Field, Gregg County, Texas as shown by plat submitted is hereby approved and applicant is granted permission to redrill and straighten Wells Nos. 2, 5, 6, 7 & 8 which is to be located as follows:
No. 2 — 309.7' from the west line and 300' southwest of Well No. 8.
No. 5 — 66' from the west line and 178' southwest of Well No. 1.
No. 6 — 325.3' from the west line and 330' south of Well No. 9.
No. 7 — 1020.6' from the west line and 695' southeast of Well No. 6.
No. 8 — 529.2' from the west line and 300' northeast of Well No. 2.
IT IS EXPRESSLY STIPULATED That this order is based on evidence pertaining to this particular well and that should this well ever be plugged and abandoned the Commission will consider such plugging and abandonment as prima facie evidence that production from said well is no longer necessary to prevent confiscation of applicant’s property or to prevent waste, and upon such plugging and abandonment, the authority for such well as granted under this permit shall cease.
IT IS FURTHER ORDERED by the Commission that this order shall not be final and become effective until fifteen days after it is actually signed by the Commission; provided, that if a motion for rehearing of the application he filed by any party at interest within such 15-day period, this order shall not become effective until such motion is overruled, or if such motion is granted this order shall be subj ect to further action by the Commission.
‘It is the order of the Commission that unless drilling operations are commenced in good faith within six months from and after the date of the order issuing such exception to Rule 37, or unless an application for a six months extension of such permit shall he filed before the expiration of the first six months stating the reasons why drilling has not been begun within the six months period, such permit shall be cancelled, and no renewal thereof shall be had unless there is filed a new application, notices issued, hearing had and proof made as in the original case. Such application for extension shall be sworn to by the applicant to whom such Rule 37 will have been issued.’
ENTERED at Austin, Texas, on this the 11 day of June 1964.
ATTEST: /s/ Ben Ramsey_
CHAIRMAN
(SEAL) /s/ J. C. Langdon_
COMMISSIONER
/s/ O, D. Hyndman _
SECRETARY COMMISSIONER”

This case originated as a result of the East Texas Oil Field investigation that was conducted in the summer and fall of 1962. The Commission in conducting this investigation ran inclination surveys on certain wells which are involved in this cause. As a result of these surveys the Commission in the summer of 1963 authorized Amerada to make a directional survey pursuant to the Commission’s Rule 54. The validity of Rule 54 had been attacked and upheld by the Supreme Court in L & G Oil Company v. Railroad Commission of Texas, 368 S.W.2d 187.

These inclination and directional surveys indicated that the wells involved in this appeal were not drilled vertically and were deviated to some degree. However, it is the position of the Commission that as far as this appeal is concerned it is immaterial whether the bottom hole location is on or off the lease in question.

The wells in question are located on a 73.-64 acre tract in the East Texas Field, Gregg County, Texas. There are a total of nine wells on the lease and the first well was drilled in July, 1935, and the last one was drilled in June, 1948.

The L & G group originally made application to the Commission for approval of the bottom hole locations of wells 2, 5, 6, 7 and 8 and a hearing on these applications was set for September 24, 1963. When the docket was called both the L & G group and Amerada requested a recess. As a result of this recess an agreement was entered into between Amerada and L & G and a copy of that agreement is found at page 59 of the Transcript. The Commission was not a party to this contract agreement, and is not bound by any agreements therein contained.

The reset September 24 hearings were resumed on December 13, 1963, and at such hearing the L & G group withdrew its application for approval of the wells here in question and asked permission to plug and abandon such wells. This permission was later granted and these deviated well bores have been plugged.

Following the Supreme Court decision in Harrington v. Railroad Commission, 375 S.W.2d 892 (January, 1964) L & G filed an application in March, 1964 to redrill and straighten wells numbered' 2, 5, 6, 7 and 8 and being the same wells involved in this controversy.

It is the position of the Commission that as a result of the Harrington case, the Commission had no alternative but to grant L & G the right to redrill and straighten the deviated wells. The Harrington case made it amply clear that it was immaterial whether the deviated wells were drilled and completed on or off a lease.

In the Harrington case the Commission had denied Harrington his request to go in and redrill and straighten 3 wells which the Court in its opinion assumed had been intentionally deviated and completed under adjoining leases. The Commission had taken the position in that case that Harrington had abandoned his permits by misuse. The Court in rejecting the Commission’s position said:

“The only question rightfully involved in these cases is whether appellant has a legal right to redrill and straighten the well bores of the three existing wells and whether the Commission shall be enjoined from interfering with his drilling activities in doing so. We hold that appellant has a legal right to redrill and straighten the existing wells and that the Commission’s orders denying him permits to do so are unauthorized in law and therefore arbitrary.”

From the clear and precise language of the Supreme Court the Commission had no alternative other than to grant appellee L & G the permits in question to redrill and straighten its wells.

Appellants assert that L & G should not have been given the right to redrill and straighten the S wells because of a contract entered into between L & G and Amerada.

The Commission is an administrative body and cannot adjudicate contracts.

Magnolia Petroleum Co. v. Railroad Commission, 141 Tex. 96, 170 S.W.2d 189.

Appellants take the further position that since L & G agreed to plug and abandon the wells the action of the Commission was arbitrary in not considering the agreement, on the other hand the Commission says that there is ample evidence to show that there was no intent to abandon these permits.

Humble Oil & Refining Co. v. Cook, Tex.Civ.App., 215 S.W.2d 383, err. ref., n. r. e.

The agreement referred to herein is dated December Sth, 1963, and sets out in detail the history of and ownership of the land and wells thereon, and in part reads:

“(1) L. & G. OIL COMPANY GROUP will immediately withdraw the applications to have Wells #2, #5, #6, #7 and #8 reinstated and placed back on production in the Rule 37 Case now pending before the Railroad Commission.
(2) L. & G. OIL COMPANY GROUP will, within thirty (30) days after the date of this agreement, abandon said five (5) wells and will request permission of the Railroad Commission to plug said five (5) wells; and when such permits are granted, L. & G. Oil Company Group will plug and abandon said five (5) wells as hereinabove listed.
(3) ‘AMERADA’ will not oppose the application to plug and abandon said five (S) wells.
(4) L. & G. OIL COMPANY GROUP reserves the right to continue with its applications to reinstate Wells #3, #4 and #9 and have said wells placed back on production by the Railroad Commission, and may follow their legal rights through the Courts.”

Appellees contend that L & G did not intend to abandon its permits, even though it did plug and abandon the deviated well bores, and refers to a portion of appellants’ answer to defendants’ Motion for Summary Judgment, with the allegation:

“L & G in violation of its written agreement with Amerada failed to file, within thirty days, the Railroad Commission Form 2A, Application to Plug, and Railroad Commission Form 4, Plugging Record * * * L & G has never plugged and abandoned wells 2, 5, 6, 7 and 8 on the T. W. Lee lease, but instead merely plugged back the deviated well bores. * * * ”

The Commission was not precluded from granting the replacement well permits because of the agreed judgment in Humble v. Lewis dated August 20, 1948, which was a Rule 37 case involving well No. 9 on the L & G-T. W. Lee Lease, and in part reads:

“(b) that when said No. 9 well has been drilled, it and the existing wells on said lease of H. G. Lewis, Jr., doing business as L & G Oil Company, 73.64-acre T. W. Lee fee tract, William Robinson Survey, Gregg County, Texas, more particularly described in instrument above referred to, will constitute full and final development of said tract for oil and gas purposes, and no additional wells are to be applied for or drilled thereon by H. G. Lewis, Jr., doing business as L & G Oil Company, his heirs, successors or assigns.”

This is not a Rule 37 case involving confiscation and waste but involves permits to redrill and straighten.

In the Harrington case the Court stated:

“It follows that the applications to straighten and correct the well bores of the existing wells are not ‘garden variety Rule 37’ cases, and the Commission was not authorized to deny the applications on the ground that they were not necessary to prevent confiscation.”

Stewart v. Humble Oil & Refining Company, 377 S.W.2d 830, Sup.Ct.

There is no dispute as to the material facts of this case; the attack by appellants on the order of June 11, 1964 is based on three points of law: (1) violates the settlement of December 1963, (2) violates the agreed judgment of August 20, 1948, and (3) that the five wells are not necessary to prevent waste or confiscation.

We believe that the judgment of the trial court was justified as a matter of law in granting the summary judgment.

The judgment of the trial court is affirmed.

Affirmed.

HUGHES, Justice.

I respectfully dissent.

It seems to me to be too simple to hold that the Supreme Court in Harrington has laid to rest all questions pertaining to applications to redrill slanted oil wells regardless of the facts and circumstances relevant to such applications.

The facts and circumstances present here were not, nor were similar facts and circumstances, before the Supreme Court in Harrington and, in my opinion, such case is not controlling here.

It is quite true that the Commission cannot adjudicate titles or fix boundaries to land or make binding construction of contracts. It is equally true that the Commission cannot ignore or close its eyes to these matters. It must appraise them in its administrative capacity in order to perform its statutory duties.

In Cheesman v. Amerada Petroleum Corporation, 227 S.W.2d 829, n. w. h., this Court in passing on the weight of an objection to the issuance of a permit to drill a well for oil based on a pooling agreement had this to say:

“Amerada, pointing out that lessor Akarda is not a party to this suit, questions our authority to determine the validity of the pooling agreement in its lease.
It must be remembered that the Commission granted the permit which Amerada attacked by filing suit in the court below. The permit carried a prima facie presumption of validity. 31a Tex.Jur., p. 630. The burden was on Amerada to overcome this presumption. It attempted to do so, in part, by fully alleging and relying upon the validity and effect of the pooling agreement.
* * *
We realize that the Commission cannot adjudicate the validity of this agreement any more than it can adjudicate title, but we believe it has the same power to appraise objections made to the issuance of a permit as it has to appraise the title upon which an application for a permit is based. The rule as to title is that the applicant must make a ‘ * * * reasonably satisfactory showing of a good-faith claim of ownership * * Magnolia Petroleum Co. v. Railroad Commission, 141 Tex. 96, 170 S.W.2d 189, 191.
Applying the principle of this rule to this case we are convinced that a ‘reasonably satisfactory showing of a good-faith’ objection to the application is not made when the objection is founded upon what we consider to be a void agreement.”

It is my opinion that the Commission had a similar duty here with reference to the 1948 judgment and the 1963 agreement referred to in the majority opinion.

That the Commission did not perform this duty is shown by the following quotation from its brief herein:

“L & G ENTITLED TO PERMITS AS A MATTER OF LAW
It is the position of the Commission that as a result of the Harrington case, the Commission had no alternative but to grant L & G the right to redrill and straighten the deviated wells.”

If the Commission had evaluated the evidence, I believe it could have found that these instruments precluded appellees from presenting a reasonably good faith application for redrilling these wells.

In its appearance before the Commission on December 13, 16 and 17, 1963, the attorney for L & G stated to the Commission :

“Pursuant to the settlement reached with Amerada Petroleum corporation, L & G Oil Company hereby abandons its applications as to wells 2, 5, 6, 7 and 8 and requests authority to plug such wells.”

At the April 16, 1964, hearing before the Commission on the application of L & G to plug back and redrill these five wells John C. Robbins, Jr. and Dorothy Robbins Sage, appellees herein, appeared through their attorney and protested the application of L & G on the ground that it was in violation of the December 5, 1963, agreement.

I believe the parties are entitled to have the Commission pass on the good faith validity of the application of L & G to re-drill these five wells. I would reverse and render this cause setting aside the order granting authority to redrill these five wells but without prejudice to the rehearing of such application by the Commission in accordance with the views here expressed.

No point is made here as to the manner in which this case was tried but in my opinion it is triable under the substantial evidence rule and not under rules applicable to summary judgments.