author: HOGAN, Judge.

text:
    Noah A. WARD and Katheryn Ward, Plaintiffs-Respondents, v. Jeff DECK and Lucille Deck, Defendants-Appellants.
    No. 8616.
    Springfield Court of Appeals. Missouri.
    Sept. 8, 1967.

      Turner White, White & Dickey, Springfield, for defendants-appellants.
    John B. Newberry, Springfield, for plaintiffs-respondents.
   HOGAN, Judge.

This action was brought by plaintiffs, as lessees, to recover damages for defendants’ failure to put them in possession under a lease. Upon a jury trial, the plaintiffs recovered the sum of $11,022.00, which was reduced to $4,000.00 by remittitur in the trial court. The defendants have appealed, principally upon the ground that plaintiffs’ evidence of damages is insufficient to support a judgment in any amount.

At the time here involved, the defendants were the owners of a parcel of realty located at the northeast corner of College and Grant in Springfield, Missouri. For several years prior to the execution of the lease in question, this corner had been occupied and used as a “package liquor store,” i. e., for the sale of liquor in the original package, by one of a chain of such stores known as the Brown Derby Package Liquor Stores. For some reason which does not appear of record, the Brown Derby vacated the premises prior to April 1965, and the defendants built a new building at the same location. It is clearly inferable that at the time the new building was being constructed the defendants expected Brown Derby to execute a new lease, for defendant Jeff Deck testified that when he and plaintiffs signed their lease “Mr. Ward * * * well understood * * * that I had been negotiating with Brown Derby on a lease.” Nevertheless, no arrangements had been concluded with Brown Derby at the time the parties made the lease involved here, though subsequently the property was sold to Brown Derby by the defendants for $30,000.00, and is now used by Brown Derby as a package liquor store.

In this court, the defendants concede that the lease executed by them and plaintiffs was valid, and they concede that they breached their covenant to put the plaintiffs in possession. With the comment that defendants vigorously contested the case in the trial court, we state the background facts necessary to a reasonably clear understanding of the issues from a point of view most favorable to the result reached.

After the new building was practically complete, about the first of May 1965, plaintiff Noah A. Ward asked defendant Jeff Deck, with whom he was well acquainted, if the Brown Derby was “going back” in the new building. Defendant replied that the former tenant had plans to do so, but if anything came up he would contact the plaintiff. A week or so later the parties again discussed the matter; the defendant expressed doubt that he and his former tenant could “get together” and asked the plaintiff if he was interested in having the new building for $350.00 per month. Plaintiff was unwilling to pay this much, though he testified it was not necessarily “too high”; he offered to execute a lease on a percentage basis and defendant tentatively agreed. Mr. Ward then said he would “scout around” to see if he could find a liquor store for sale, because “you have to buy someone out in order to get a City license,” and their discussion ended. Mr. Ward did locate a liquor store available for purchase and made a contract to buy it. Having done so, and believing that he had struck a bargain with the defendant upon which he could rely, plaintiff made a $500.00 partial payment on the liquor store and set a carpenter to work on the interior of the new building.

During the course of their negotiation, the parties had tentatively discussed a rental figure. Defendant, as indicated, originally wanted $350.00 per month, but plaintiff, who didn’t want to “tie [himself] down,” offered to pay four per cent of gross sales up to $5,000.00 per month and five per cent for “all over that.” According to the plaintiff, at least, this seemed satisfactory to Mr. Deck. By Saturday, May 29, the 'plaintiff had “gotten pretty well involved,” and advised defendant that he would have to have “something in writing and get it signed tonight or else as far as I’m concerned the deal on that building is off.” Mr. Ward also told the defendant he would rather “forfeit that five hundred dollars * * * than * * * to go ahead and inventory that [liquor] store tomorrow and have all that stock and fixtures on my hand (sic) and then * * * get in the building with no lease.” The defendant, who had been protesting that Brown Derby had offered $360.00 per month without air conditioning, then “kind of changed his attitude” and told Mr. Ward there was “no need in doing that,” and consequently — this according to the plaintiff — the parties went over their previous oral agreements “step by step, just what [was] in the lease.” On Saturday, May 29, the parties executed the following lease:

“LEASE
This lease made and entered into this 29th day of May, 1965, by and between Jeff Deck and Lucille Deck, hereinafter known as lessors and Noah A. Ward and Katheryn Ward hereinafter known as lessees.
“WITNESSETH: That lessees do hereby lease from lessors and lessors do hereby let to lessees a building located at the corner of College and Grant in Springfield, Greene County, Missouri. Said building being known as 653 College.
“This lease shall take effect on the above date and shall be for a period of one year.
“Lessees agree to pay lessors as consideration for this lease, 4% of the amount of gross sales made by lessees, on the premises, on the first $5,000.00 of gross sales and 5% of such gross sales above $5,000.00. It is agreed that such rent be paid at the end of each month of this lease.
“Lessors do hereby agree that lessees will use said premises for the sale of intoxicating beverages. Lessees agree that they will not assign this lease or sublet the premises without the written consent of lessors.
“Lessors agree that if the gross sales of lessees during the 12th month of this lease shall be $8,000.00 or greater that lessees shall have the option of extending this lease for an additional 4 years under the same terms and conditions as the original period.
“It is agreed that if the building be destroyed by fire or other casualty, so that it cannot be repaired, that either party may terminate this lease.
“It is agreed that lessees may remove all fixtures installed by them, at the time of termination of this lease.
“This lease shall be binding on the administrators, executors or other legal representatives of the parties.
“In witness whereof the parties have hereunto set their hands the year and day above written.
“/s/ Jeff Deck
“/s/ Lucille Deck
“/s/ Katheryn Ward
“/s/ Noah A. Ward”

On Wednesday, June 2, and before plaintiff had moved in, defendant announced, “We’re going to have to change the lease,” and indicated he would not abide by the terms. Plaintiff stated that he would have the lease checked to see if it was enforceable, and then left. As stated, the defendants now admit the validity of the lease and that they refused to allow the plaintiffs to occupy the premises.

The appellants have briefed and argued a number of points in this court. Inferentially, they have raised several complex and involved issues concerning the measure of plaintiffs’ damages and the proper method of valuation of a leasehold, but a full discussion and resolution of all the questions they suggest is, in our view, unnecessary and probably imprudent upon the record presented. Manifestly, the plaintiffs’ damage in this case is not readily susceptible to exact proof, but the case is not fairly comparable to Hough v. Jay-Dee Realty and Investment, Inc., Mo.App., 401 S.W.2d 545, as the defendants maintain. Not only did we restrict the Hough case to its peculiar facts; there the lessor’s obligation was so nebulous — to build a “first-class restaurant” — that the plaintiffs themselves conceded the impossibility of any recovery based on the usual measure of damages. This case is much more nearly comparable to those cases in which there has been an interruption of an established business, and while we have the opinion that one measure of the value of a leasehold is the present worth of the difference between the rent contracted for and the current rental value of the premises, St. Louis County v. State Tax Commission, Mo., 406 S.W.2d 644, 652-653 [7-11]; Land Clearance for Redevelop. Corp. v. Doernhoefer, Mo., 389 S.W.2d 780, 784 [2, 3], we are unwilling to transmute any particular theory of real estate appraisal into a fixed legal principle by holding that there is one particular method of valuation which must be followed in this case. Of course, the method of valuation used must be one which is generally recognized and accepted, but we cannot confidently say, as the appellants urge, that it would be impossible for a properly qualified witness to state the amount of plaintiffs’ loss as a lump sum, or that it would be improper for the jury to consider the plaintiffs’ loss of anticipated profits, no matter what the state of proof might be. See Lee Shops, Inc. v. Schatten-Cypress Co., 6 Cir., 350 F.2d 12, 16-18. It is unnecessary to explore and compare the possible methods of proving damages which are or may be available to the plaintiffs, and we limit our opinion to a consideration of those essential questions necessary to a determination of the appeal in this court.

The other aspect of appellants’ argument about the evidence of damages is, essentially, that plaintiffs failed to present sufficient factual data from which a jury could make a rational estimate of their loss, and in our opinion this point is well taken. Plaintiffs sought to establish their loss by the evidence of two witnesses, a Mr. Anderson and plaintiff Noah Ward himself. Mr. Anderson, the operator of a package liquor store in Springfield, Missouri, testified in substance that he had been in that business for two and one-half years, that he purchased the store from Mr. Ward, and that he had “observed” the differences in package liquor stores at various locations. “Your location,” Mr. Anderson said, “* * * would be a very large percent of your volume of business.” The witness had driven past the old building on the lessors’ premises “twice a day for a couple of years * * * going to and from work.” For a “couple of years” Mr. Anderson had been looking over other locations in Springfield, and he had talked to five or six people about locating a second store if he could get a volume of business which would justify its establishment, but had recently “kind of given up on it.” This witness was then asked if, based on his experience, his familiarity with the old building at College and Grant, and his investigation of possible locations for places to establish a new store, he had an opinion of the value of plaintiffs’ leasehold, taking into consideration the rental provisions of plaintiffs’ lease. The witness answered that in his opinion a lease “like that at that location would be worth about five thousand dollars.”

On cross-examination, Mr. Anderson stated that his dollar figure represented “the lease and the location of the building,” but he didn’t think it was related to the rental; he had, however, taken the probable rent into account. The course of his testimony on cross-examination, which we need not detail here, makes it appear that Mr. Anderson based his opinion of the value of plaintiffs’ leasehold largely upon the volume of- sales which, in his judgment, would be made at the particular location in question, taking into consideration the fact that a new building had been built.

The appellants attack this testimony on two grounds. First, they say that Mr. Anderson was not qualified by any standard to give an opinion, and further they argue that the figure he gave is purely speculative because he was not able to, or at least did not, state any rational basis for his estimate. We are inclined to agree on both counts, though we could not say, on the record before us, that Mr. Anderson could not have qualified, had his familiarity with the subject matter been more clearly shown. Necessarily, the evidence of damages in this case must rest upon opinions or estimates which are, in the traditional sense, somewhat speculative, but it is well established that the value of the use, or rental value, of land may be proved by the opinion evidence of witnesses acquainted with the property and the facts bearing on its use. 31 Am.Jur.2d Expert and Opinion Evidence, § 143, p. 697. The testimony of a witness as to the value of an interest in land should be rej ected, however, where the basis for a test as to its reliability is not furnished by a statement of facts on which it is based, or where the basis of fact'does not appear to be sufficient. 32 C.J.S. Evidence § 546(117), pp. 436-438. The weakness of Mr. Anderson’s testimony, aside from his qualification, is that he testified to no actual facts which presented data upon which to base a rational estimate of the value of plaintiffs’ leasehold. Though the fact situations involved in such cases as Ramsay v. United States (W.D.Mo.), 55 F.2d 333, 334 [3]; Yaffe v. American Fixture, Inc., Mo., 345 S.W.2d 195, 200 [5, 6], and Arkansas State Highway Commission v. Stanley, 234 Ark. 428, 353 S.W.2d 173, 174-175 [2], 4 A.L.R.3d 749, 753-754, are widely divergent from the facts at hand, the principles announced therein are applicable, and in our opinion Mr. Anderson’s testimony was not sufficient to establish the amount of plaintiffs’ loss.

In addition to Mr. Anderson’s testimony, the plaintiffs had the evidence of plaintiff Noah Ward himself concerning the value of their leasehold. Mr. Ward testified that at one time he had operated a package liquor store for about 27 months. He stated - that he sold this business to Mr. Anderson, and basing his opinion upon his experience in operating the business Mr. Anderson now owned and a “little checking” he had done, Mr. Ward estimated the value of the leasehold to be “at least over five thousand dollars a year” to him. Upon request of counsel, the trial court struck the answer and Mr. Ward testified that the value of .the leasehold was $5,000.00 a year, without the qualification “to me.” On cross-examination, Mr. Ward said that he arrived at this figure “by the volume I used to do in the small store,” but added that he “didn’t know” what a reasonable rental for the property at College and Grant would be. Mr. Ward also testified that he was not familiar with the terms of the former tenant’s lease and did not know what the rent or volume of business had been. There is no evidence in the record indicating that Mr. Ward’s liquor store was comparable or dissimilar to the operation he proposed to undertake. It must be borne in mind that Mr. Ward never actually occupied the premises in question and gave no testimony indicating the size of the business he proposed to establish.

The respondents seek to justify the admission of Mr. Ward’s testimony on the ground that the ownership of the leasehold in itself qualified him to express an opinion as to its value. In general, it is true that the owner of real property or an interest therein may give his opinion of its value, and his estimate is received in evidence notwithstanding the fact that he is not an expert, 31 Am.Jur.2d Expert and Opinion Evidence, § 142, p. 696, but the admissibility of such evidence rests upon the assumption or a record showing that he is particularly familiar with the property and knows the usages to which the property is adapted, Shelby County R-IV School District v. Herman, Mo., 392 S.W.2d 609, 613 [6-10]; State ex rel. Smith v. 0.15 Acres of Land, etc., 3 Storey 372, 53 Del. 372, 169 A.2d 256, 258-259 [4,5]; Dawson v. City of Lincoln, 176 Neb. 311, 125 N.W.2d 908, 910, 911 [1, 2] [3], and when this assumption of special knowledge is negated by the owner’s own testimony, his opinion loses its probative value and should be rejected. United States v. Sowards, 10 Cir., 370 F.2d 87, 92 [15-17]; State ex rel. Smith v. 0.15 Acres of Land, etc., supra, 53 Del. 372, 169 A.2d at 258 [1]; 31 Am.Jur. 2d Expert and Opinion Evidence, § 142, pp. 696-697. Though Mr. Ward was the owner of the leasehold in question, he had had no experience in using the premises as a location for a package liquor store, and his previous business was not shown to have been comparable in any respect to that which he was undertaking to establish. Further, though Mr. Ward at one point denied this, he seems to have based his opinion of the value of the plaintiffs’ leasehold upon its value to him as an individual. We have the opinion that, as his testimony developed, Mr. Ward’s opinion had no probative value and should have been rejected by the trial court. United States v. Sowards, supra, 370 F.2d at 92 [15-17].

For the errors noted, the cause is reversed and remanded for a new trial on the issue of damages only.

STONE, P. J., and TITUS, J., concur.

      . We refer to plaintiff Noah Ward and defendant Jeff Deck. Their wives were made parties, but seem to have taken no part in the transaction other than to sign the lease.


source: Caselaw Access Project

author: SPERRY, Commissioner.

license: Public Domain

text:
    Jane Barrow EMERSON, Appellant-Respondent, v. William S. EMERSON, Appellant-Respondent.
    No. 24647.
    Kansas City Court of Appeals. Missouri.
    June 5, 1967.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 2, 1967.

      R. A. Brown, Brown, Douglas & Brown, St. Joseph, for appellant.
    Ronald Reed Jr., Reed & Reed, St. Joseph, for respondent.
   SPERRY, Commissioner.

This is an appeal from an order and decree modifying a previous order touching the custody of William Barrow Emerson.

Mrs. Jane Barrow Emerson will be referred to as plaintiff.- Mr. William S. Emerson will be referred to as defendant. Plaintiff had, in a previous action, obtained a decree of divorce from defendant. This decree was entered April 30, 1964. Plaintiff was given custody of Barrow. It was ordered that defendant should have certain rights of visitation.

The parties all lived in St. Joseph, Missouri, at that time. During the summer of 1965, plaintiff wished to go to California, taking Barrow, for a visit. The plaintiff and defendant met and plaintiff signed a “declaration of intent”, prepared by their attorneys. Plaintiff therein declared that she intended going to California for a visit but she would return to St. Joseph. However, some time thereafter, plaintiff announced her determination to establish her permanent residence in California. Thereupon, defendant filed a motion to cite plaintiff for contempt but that motion was never ruled. Later, plaintiff returned to Missouri and the original custody order was modified regarding visitation provisions.

Sometime prior to March 11, 1966, plaintiff determined to marry Captain Roberts, U.S.N., who was then stationed in California. They were married April 2, 1966, after Captain Roberts had received orders, on March 11, to report as commanding officer of the Naval Air Station at Subic Point, Philippine Islands. Because of these happenings plaintiff filed a motion to modify the last order regarding visitation rights of defendant on alternate Christmas days, and in other respects. Defendant filed a motion requesting full and complete care, custody and control of Barrow.

After a hearing, the court ordered that plaintiff be permitted to take Barrow to the Philippine Islands and to establish a residence there; but it was ordered that Barrow was to be returned to St. Joseph, at plaintiff’s expense, from June to August of each year, to visit defendant. Both parties appealed from that order. The appeals have been ordered consolidated.

Plaintiff requests full time custody of Barrow at her home in the Philippine Islands, and objects to that provision of the order which requires her to return him to St. Joseph, from June until August, in order to permit his visitation with defendant in St. Joseph, Missouri. Defendant requests full time custody but, if plaintiff is given the custody of Barrow at her home, he asks that she be required, at her own expense, to return him to Missouri from June until August for visitation with him.

Captain Roberts stated that he will welcome Barrow as a member of his family, furnish him with a good home, give him excellent educational opportunities, and will give him kindly treatment, social training, and friendly companionship. Plaintiff has an annual income of her own of three thousand dollars from investments. Her mother is financially “well to do” and has given her substantial sums of money during past years. At the time of the trial she was thirty six years of age. Defendant’s son, by a former marriage, remained in the family home with plaintiff, following the divorce. This arrangement was one of convenience and considered best by defendant at that time. Defendant voluntarily paid plaintiff fifty dollars per month support money for each of the boys until she removed to California when he discontinued payments for the son of the former marriage, who remained in Missouri.

Defendant was forty eight years of age at the time of the trial. He was a Lieutenant in the U.S. Navy at and prior to the time of his marriage but his service was terminated because of lack of college credits, in 1955. He is now a Lieutenant Commander, U.S. Naval Reserve, Aviation. His employment is as a salesman. He earns three hundred dollars per month, plus an undisclosed amount as a naval reserve officer. He is a student at the State College of Maryville, Missouri, working for a degree that will permit his entry into the teaching profession. His other son is nineteen years of age now, and a naval enlistee. Defendant intends to marry a woman student at the college he attends. She has two sons, the eldest of whom is near the age of Barrow. All of the children are former playmates when both families lived in St. Joseph. Nothing derogatory concerning the moral or religious character and conduct of the defendant was shown.

The evidence is overwhelmingly to the effect, and it is admitted by the parties, that they are wholly incompatible; . that they cannot “communicate”; that plaintiff is a screamer and defendant is a shouter; that they engage in this conduct in private, in public, and by telephone; that they communicate only through their attorneys; that they have not been able to come to any reasonable agreement of any kind; that they will never be able to do so. It is apparent that they will not amicably share a divided custody, whether they live in the same town or separated by eight thousand miles.

It appears from the evidence that plaintiff is and will be, financially, at least, able to furnish Barrow a stable home and family life and that defendant’s future is unclear at this time. He has no suitable home to which he can take Barrow. He cannot, at this time, personally spend much time in company with his son, regardless of his love for him and his desire to do so. This twelve year old child, if custody is awarded to defendant, would actually be required to live, for the most part, with people other than either of his parents. That is not in his best interests.

The best interests of any child require that he be reared in a congenial atmosphere, in a home where both parents can counsel, advise and discipline him, and where each parent will contribute to his daily social training and education. But that cannot be when the marriage is dissolved because of the failure of the parents (or either of them) to subordinate their passions and extremisms to the interests of the children of the marriage, as occurred in this case.

It is not necessary to cite authority for the proposition that, in cases such as this, the child’s best interests will be kept in mind and the interests, convenience, and wishes of either or both parents will be subordinated to the interests of the child of a broken marriage. However, whenever reasonably possible, each parent should have the opportunity to be with the child for periods so that each may contribute his or her special talents, to the end that the child will be emotionally and socially well balanced.

The evidence here is that, in order to permit défendant to visit with Barrow, if his home is to be in the Philippines with plaintiff during the two year tour of duty which Captain Roberts will be required to serve, Barrow will be required to make an eight thousand mile trip, each way, at a cost of more than one thousand dollars. This would be a heavy financial burden for plaintiff to bear since it is shown that her net income is three thousand dollars per year. Furthermore, the trip by air would require changing planes at Los An-geles International Air Port, one of the largest in the world. He would be required to travel from two to three miles across the crowded field, from one plane to another. The plane would make two landings between Los Angeles and Manila, where he would be required to travel on a second rate road sixty miles, three hours, to Subic Point. The overall trip, one way, would require at least twenty four hours.

Because of the foregoing considerations we believe it to be in the best interests of Barrow that full time custody be ordered continued in plaintiff; that he not be returned to Missouri yearly for visits with defendant; that defendant pay to plaintiff fifty dollars monthly child support for Barrow; and that defendant be given the right of visitation with his son, wherever he may be, at all reasonable times.

The judgment is reversed and the cause is remanded with directions that the court enter a new judgment in accordance with the above findings and conclusions.

MAUGHMER, C., concurs.

PER CURIAM.

The foregoing opinion of SPERRY, C., is adopted as the opinion of the court.

All concur.


author: WADDILL, Commissioner.

text:
    Jack LITTLE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 5, 1967.
    As Modified on Denial of Rehearing Oct. 20, 1967.
    Sanders & Redwine, Pikeville, for appellant.
    Robert Matthews, Atty. Gen., David Mur-rell, Asst. Atty. Gen., Thomas B. Ratliff, Commonwealth’s Atty., Frankfort, for ap-pellee.
   WADDILL, Commissioner.

The appellant was indicted for a second violation of the local option law. KRS 242.-230. Upon trial of the case in the circuit court a magistrate of Pike County, Kentucky, was permitted to testify, over objections, that appellant was convicted in the magistrate’s court during the August 1952 term of the offense of illegal possession of alcoholic beverages for the purpose of sale in Pike County, a dry local option territory. However, when the official record of this conviction was produced it showed that the magistrate was in error in that the conviction had been for a violation of former KRS 243.840 (repealed in 1960) which was not a part of the local option law. After this was revealed the trial court sustained appellant’s motion to strike this testimony, admonished the jury not to consider the former conviction and, at the close of the evidence in chief of the Commonwealth, overruled appellant’s motion, then made, to set aside the swearing of the jury and continue the case.

After appellant and the witnesses in his behalf had testified the trial court submitted to the jury only the question of whether or not appellant had been proven guilty of one violation of the local option law, i.e., illegally possessing alcoholic beverages for the purpose of sale in Pike County. The verdict found appellant guilty and fixed his punishment at the maximum penalty prescribed by law for a first offender. KRS 242.990. Judgment was accordingly entered.

On this appeal appellant’s sole contention is that he was denied a fair trial because the jury was improperly allowed to hear testimony that he had committed another criminal offense and that the admonition of the trial court concerning it was insufficient to erase its prejudicial effect from the minds of the members of the jury. In response, appellee asserts that the alleged error was waived by appellant’s failure to timely make his objections and motion to discharge the jury.

In considering these contentions we quote from the trial record the pertinent part of the alleged prejudicial testimony of the magistrate, Taylor Justice, and the objections of appellant to the rulings of the trial court:

“Q3 Are you presently serving as the Magistrate in District No. 4 in Pike County ?
“A Yes, sir.
“Q4 How long have you served in that capacity?
“A Since 1949.
“Q5 Are you acquainted with Jack Little, the defendant in this case?
“A Yes.
MR. SANDERS:
“Object.
MR. RATLIFF:
“Q6 Did this man appear in your court in August of 1952, charged with the offense of illegal possession of alcoholic beverages for the purpose of sale in Pike County, a dry local option territory ?
MR. SANDERS:
“Object. The record doesn’t show that. Let him show what the record shows on it.
JUDGE LOWE:
“Overruled.
MR. RATLIFF:
“Q7 Did he appear in your court on August 23, 1952 charged with the illegal possession of alcoholic beverages for sale in dry local option territory?
MR. SANDERS:
“That’s what I am objecting to.
JUDGE LOWE:
“Overruled.
MR. SANDERS:
“Except.
“A Yes, he did.
MR. RATLIFF:
“Q8 Do you have with you at this time the records of your judgments in your court ?
“A Yes, sir.
“Q9 Would you refer to Page 30 of Judgment Book 1952 and tell me whether or not there’s a judgment there against a man by the name of Jack Little?
“A Yes, sir.
“Q10 Is this the same Jack Little who is now on trial?
“A Yes, sir.
“Qll Who appeared at that time?
“A Yes, sir.
MR. SANDERS:
“Object and move to exclude. JUDGE LOWE:
“Overruled.
“A Yes.
“Q12 The same man?
“A Yes.
“Q13 Would you read the jury the information appearing in Judgment Book 1952, Page 30, as to • this defendant, Jack Little?
“A ‘Commonwealth of Kentucky vs. Jack Little. Offense; Possession of untax (sic) paid whiskey, arrested by James Snapp, State Trooper. Judgment rendered August 23, 1962. Fine, $50.00 and costs $16.00.’
MR. SANDERS:
“Move to exclude that testimony on the grounds it shows on its face it was not possession for the purpose of sale, that it was untaxed whiskey, which is moonshine, and that he was fined under Section 243.840 and not under the Alcoholic Beverage Control Act.
JUDGE LOWE:
“Sustained.
MR. SANDERS:
“Move to exclude his evidence.”
[No ruling]

Notwithstanding the fact that the trial court “sustained” the motion to exclude, which would require the court to tell the jury to disregard the incompetent testimony, this was not done. In the absence of such an admonition this testimony was not excluded from the jury’s consideration. Later when appellant renewed his motion the court informed appellant’s counsel that such an admonition would be given at the close of the evidence and appellant’s counsel immediately stated that “no admonishment given by the court will be strong enough to remove from the minds of the jury the statements they have heard about the former offense, and the only remedy now to get this out of their minds, is to set aside the swearing of the jury and continue the case * * Hence, it appears that the motion to set aside the swearing of the jury and to continue the case was timely made and this fact distinguishes the instant case from Senibaldi v. Commonwealth, Ky., 338 S.W.2d 915, wherein Senibaldi’s objections and motions were not promptly made.

Ordinarily evidence that accused has committed other crimes than that for which he is being tried is not admissible except when necessary to establish identity, guilty knowledge, intent or motive or when the offenses are so interwoven that they cannot be separated. Holt v. Commonwealth, Ky., 354 S.W.2d 30; Ellison v. Commonwealth, 311 Ky. 757, 225 S.W.2d 470. Such evidence may in a certain character of case be introduced to show a pattern or system in the commission of a crime. Lee v. Commonwealth, Ky., 242 S.W.2d 984. We have consistently adhered to the rule that the prosecution can read to the jury the record of prior convictions of the accused under the local option law to increase the punishment in a second or third offense prosecution. Rodgers v. Commonwealth, Ky., 399 S.W.2d 299; Fitch v. Commonwealth, 313 Ky. 210, 230 S.W.2d 913.

We conclude that appellant’s contention is meritorious. The trial court permitted the Commonwealth to introduce evidence of a crime wholly unconnected with that for which he was being tried. Even though the jury was subsequently admonished not to consider this evidence the damage had already been done. It is doubtful whether any juror could have completely dismissed from his mind the effect of such unfavorable testimony. Powell v. Commonwealth, 308 Ky. 467, 214 S.W.2d 1002. The introduction of this evidence was prejudicially erroneous and appellant’s motion to discharge the jury and continue the case should have been sustained. To hold otherwise would permit the prosecution to introduce testimony concerning the commission of numerous crimes by the accused which could not be supported by competent court records.

The judgment is reversed with directions to set it aside and to grant appellant a new trial.

WILLIAMS, C. J., and MONTGOMERY, MILLIKEN, STEINFELD, PAL-MORE and OSBORNE, JJ., concur.


author: STEINFELD, Judge.

text:
    MURRAY HOSPITAL ASSOCIATION, Inc. (Succeeded by Murray-Calloway County Hospital), Appellant, v. Elaine B. HARVEY et al., Appellees.
    Court of Appeals of Kentucky.
    June 16, 1967.
    Rehearing Denied Nov. 3, 1967.
    George E. Overbey, William Donald Overbey, Overbey & Overbey, Murray, for appellant.
    J. Keller Whitaker, Director, Workmen’s Compensation Board, Martin Glazer, Department of Labor, Frankfort, Nat Ryan Hughes, Hughes & Gregory, Murray, for appellees.
   STEINFELD, Judge.

Elaine B. Harvey was a nurse working for the Murray Hospital Association, Inc., at Murray, Kentucky. On February 19, 1963, she was injured while performing her nursing duties in the hospital. Several months later she made demand upon her employer for benefits under the Workmen’s Compensation Act, under which Act the hospital was operating. There is agreement as to the amount of her wages, and it is conceded that they were sufficient for maximum benefits if she was entitled to recover. There seem to be only two areas of controversy remaining. They are: (1) The extent of disability and (2) the specific responsibilities of the employer to assume and discharge medical, hospital and travel expenses of the claimant.

The claim was contested before the Workmen’s Compensation Board and the Calloway Circuit Court. On February 14, 1966, acting under previous directions given to it by that court, the Board wrote an opinion, made findings of fact and entered an order, the substance of which was that Elaine B. Harvey shall recover from the Murray Hospital Association, Inc., and its insurance carrier $38.00 per week beginning December 10, 1963, to and including March IS, 1964, for a period of 13% weeks and thereafter beginning March 16, 1964, the sum of $3.30 per week for a period of 386¾ weeks, with the latter payments of $3.30 per week being accelerated to $16.00 per week. It allowed her interest on the past due and unpaid payments. The Board also awarded her certain medical expenses but disallowed certain other medical expenses for which she made claim under KRS 342.020.

Mrs. Harvey filed a petition for reconsideration. Acting pursuant to KRS 342.-120(5) the employer moved the Board that the Subsequent Claim Fund (also called the Special Claim Fund) be required to pay “ * * * the unpaid portion of the permanent partial disability award.” It contended that the claimant had returned to her usual employment. On March 9, 1966, the Board overruled both the petition to reconsider and the motion. On March 16, 1966, the Board set aside that portion of the order of March 9, 1966, which overruled the motion to make the “Special Fund” a party and sustained the motion. It directed the fund to pay “ * * * compensation for the period from May 16, 1964, to August 15, 1965.” KRS 342.120(5) ,

On March 16, 1966, Mrs. Harvey filed in the Calloway Circuit Court a “petition for appeal” from the order of March 9, 1966. She named the hospital and the Workmen’s Compensation Board respectively as appellee and respondent. Neither the fund nor the commissioner of labor was named in that appeal. On the 26th day of March, 1966, the hospital moved the court to make the fund a party to the appeal under CR 19.01, claiming that the fund was a necessary and indispensable party. CR 12.02. Mrs. Harvey did not join in the motion to bring in the fund. Without waiving its motion that the fund be made a party, the hospital answered and put in issue the various contentions on which it relied. On March 31, 1966, Mrs. Harvey resisted the efforts of the hospital to bring in the fund and demanded that this motion be overruled. She contended that since her employer and the Board were named it was improper that the fund be brought into the case.

After considerable litigation the court entered judgment increasing the award made by the Board from 10% permanent partial disability to the body as a whole to 25% and directed that it be paid at $8.25 per week. It increased the award for medical expenses from $201.50 to $378.60. It dismissed the action as to the fund. The hospital has appealed.

At the time of the injury KRS 342.285 [3] (d) limited the circuit court in reviewing the action of the Board, to determining “* * * [i]f findings of fact are in issue, whether such findings of fact support the order, decision or award.” With respect to the injuries and disability Dr. Richard DeSaussure, who had performed the surgery, and attended Mrs. Harvey until her release was asked and testified as follows:

“39. You are familiar with her type of work as a Director of Nurses’ Education in a general way?
A. In a general way, yes.
40. Doctor, what is your opinion as to her percent, if any, of permanent partial disability resulting from this injury and operation ?
A. I thought she had about 10% permanent partial disability.
41. And that is to the body as a whole? A. Why, yes, sir.
42. Doctor, if (strike that) I do inform you that it is in testimony by Mrs. Harvey that in May of this year she frequently played golf at the Country Club of Cal-loway County in Murray as many as 18 holes a day, walking all of the way and pulling a golf cart behind her.
Mr. Hughes: Objection. Mr. Overbey is not saying these things of his own knowledge.
Now then, would that influence you any in your decision as to the percent of disability Mrs. Harvey might have?
A. I think it would tend to confirm my opinion of 10% permanent partial disability.
43. Are you familiar in a general way with the game of golf?
A. Yes, sir.
44. And you do try to play?
A. Yes.
45. Dr. DeSaussure, if she had more than 10% permanent partial disability would it prevent her from playing golf without pain, in your opinion ?
A. Well, it is difficult to say exactly, I think if she had much more disability than this it certainly would interfere with her game of golf.
46. So the fact that she has been able to play the game of golf since the surgery and stated that she did so without pain, would that substantiate, in your opinion, your evaluation of 10% ?
A. Yes, sir.
47. Doctor, it is in testimony that Mrs. Harvey has worked as many as eight hours a day and as many as ten hours a day in May of this year. Would a person with 10% permanent partial disability the type that Mrs. Harvey you say may have, could she perform that type of work with more than 10% disability, in your opinion?
A. It would be uncomfortable for her and I doubt seriously if she would work more than a few hours if she had much more pain than that.”

Even though the testimony of other capable physicians somewhat contradicted what was said by Dr. DeSaussure, the Board had a right to base its findings upon the latter doctor’s estimate of disability and in Lexington Cartage Company v. Williams, Ky., 407 S.W.2d 395, we said: “Under our Workmen’s Compensation Act the board is the sole finder of fact.” The * * * “weight of evidence is traditionally and properly a function for the fact finder.” Joseph v. Blue Diamond Coal Co., Ky., 408 S.W.2d 467. The circuit court may not substitute its opinion for that of the Board on the weight of the evidence. KRS 342.285(3). Lexington Cartage Co. v. Williams, Ky., 407 S.W.2d 395. Cabe v. Toler, Ky., 411 S.W.2d 41. The findings by the Board based upon substantive evidence of probative value were binding on the circuit court. Mengel Co. v. Lehman, Ky., 259 S.W.2d 19; Miami Oil Producers, Inc. v. Gilum et al., Ky., 418 S.W.2d 656 decided June 2, 1967. They will not be disturbed on appeal. Jonas Miller & Sons v. Risner, Ky., 407 S.W.2d 125.

The Fund did not answer and did not appeal from the order of the Board of March 16, 1966, which found it liable for the payments for the period of May 16, 1964, to August 15, 1965. The court was correct in dismissing as to the Fund. There was nothing for it to adjudicate as to that period. Beth-Elkhorn Corp. et al v. McFall et al., Ky., 415 S.W.2d 857, decided June 9, 1967. The employer, in the proceedings before the Board, and later before the court, sought to litigate its contention that the Fund was obligated to pay an additional amount of the claim. It could not be sustained on that issue because KRS 342.120(5) had been repealed. Simmons Brothers Paving Company v. Presley et al., Ky., 419 S.W.2d 338, decided June 2, 1967.

Mrs. Harvey who resides in Murray, Kentucky, claimed for and produced evidence as to the following items of medical expenses: 5 trips to Memphis, Tennessee, 340 miles, 1,700 miles by automobile during the month of December, 1964 and the months of January, February and March, 1965. Two round trips to Nashville, Tennessee, for a total of 520 miles. For the miles that she traveled she claimed $0.08 each for $177.60. She demanded an allowance of her expenses for meals of $64.50; overnight lodging of $20.00; special duty nurses of $31.50 and an examination fee by Dr. Arnold Haber of $75.00 and Dr. Charles Clark of $14.00. These items made a grand total of $382.60. The Board awarded her $156.00 for traveling and lodging expenses incidental to her medical treatment in Memphis; $31.50 for the nursing expenses in connection with her operation and $14.00 for medical services for Dr. Charles Clark, a total of $201.50 but disallowed the remainder of the claim for the expenses. It found that the items which it disallowed were not incurred in medical treatment covered by KRS 342.020. That statute provided in part: “ * * * the employer shall furnish for the cure aiid relief from the effects of an injury or occupational disease, such medical, surgical and hospital treatment, including nursing, medical and surgical supplies and appliances, as may reasonably be required at the time of the injury and thereafter during . disability, or as may be required for the cure and treatment of an occupational disease, but not exceeding a total expense to the employer of more than twenty-five hundred dollars.”

When the appeal reached the circuit court it increased the amount to $378.60. We find that the Board based its ruling on sufficient evidence before it that the items which it disallowed were not covered by the statute. The court was in error in allowing these items of expense which were disallowed by the Board. Miami Oil Producers, Inc. v. Gillum supra:

The judgment is affirmed in part and is reversed in part for the entry of a judgment in conformity with this opinion.

All concur except OSBORNE, J., who was not sitting.

      . KRS 342.120(6) was repealed 1964 c. 192.


author: PALMORE, JUDGE.

text:
    SIMMONS BROTHERS PAVING COMPANY, Appellant, v. James C. PRESLEY et al., Appellees.
    Court of Appeals of Kentucky.
    June 2, 1967.
    Rehearing Denied Nov. 3, 1967.

      William Lehnig, Louisville, for appellant.
    Strother Kiser, Lexington, for appellees.
   PALMORE, JUDGE.

The appellee James C. Presley was awarded workmen’s compensation for permanent total disability resulting from an injury sustained on June 27, 1963. See Simmons Brothers Paving Company v. Presley, Ky., 401 S.W.2d 764 (rehearing denied May 13, 1966). On May 27, 1966, counsel for the employer’s insurer moved the Workmen’s Compensation Board for an order transferring liability to the Special Fund. The motion was overruled, and the matter comes before this court on an appeal from a judgment of the circuit court sustaining the board’s action.

The transfer of liability was requested on the basis of KRS 342.120 (5), which had been repealed in 1964. It provided, in substance, that upon motion, “and it appearing to the board that a claimant who has been awarded compensation * * * becomes re-employed or continues in his employment in which he was injured” at wages equal to or greater than what he was receiving at the time of the injury, the unpaid portion of the award accruing during the period of such employment shall be paid by the Subsequent Claim Fund. The concluding sentence of the subsection was as follows.

“This subsection shall affect all unpaid workmen’s compensation benefits and shall be applicable to all cases presently pending before the board.”

The motion was overruled by the board for the express reason that it was not accompanied by an adequate showing of grounds. The circuit court agreed, holding that there had been no abuse of discretion. However, we need not reach that question, because it is our opinion that upon the repeal of KRS 342.120 (5) the authority of the board to transfer liability as requested by the appellant ceased. The provision that subsection (5) should apply to all cases then pending was, of course, repealed along with the rest of the subsection.

The judgment is affirmed.

All concur.


author: OSBORNE, Judge.

text:
    Thomas H. MINARY, Jr., et al., Appellants, v. CITIZENS FIDELITY BANK & TRUST COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    June 9, 1967.
    Rehearing Denied Nov. 3, 1967.
    James W. Stites, Stites, Peabody & Helm, Louisville, for appellants.
    William J. Goodwin, Garner M. Petrie, Frank J. Dougherty, Jr., Louisville, Joseph J. Leary, Frankfort, for appellees.
   OSBORNE, Judge.

This is an action for the construction of the will of Amelia S. Minary. The will was executed on the fourth day of April, 1932. After making several bequests of cash to various beneficiaries to pass immediately, the will creates a trust, the income of which is directed to be paid to Thomas J. Minary, husband of Amelia Minary and to her three sons, James S. Minary, Thomas Helm Min-ary, and Alfred D. Minary. The proceeds of the trust are to be paid in the “absolute and uncontrolled discretion” of the trustees. The trust terminates upon the death of the last surviving beneficiary, and upon termination, the corpus is to be distributed as follows:

“After the Trust terminates, the remaining portion of the Trust Fund shall be distributed to my then surviving heirs, according to the laws of descent and distribution then in force in Kentucky, and, if no such heirs, then to the First Christian Church, Louisville, Kentucky.”

The testatrix died in 1932 and her husband died in 1935. Left surviving Thomas were two children, Thomas H. Minary, Jr., and Amelia Minary Gant. James and Alfred, the other two sons, died without issue. After testatrix’s death, Alfred married Myra Galvin Minary in 1934 and, prior to his death in 1959, he adopted her as his child. The adoption resulted in litigation before this court. See Minary v. Minary, Ky., 395 S.W.2d 588.

The question herein presented is, “Did Alfred’s adoption of his wife Myra make her eligible to inherit under the provisions of his mother’s will?” More specifically, the question is, “Is Myra included in the term ‘my then surviving heirs according to the laws of descent and distribution in force in Kentucky ?’ ”

This has revived a lively question in the jurisprudence of this state and presents two rather difficult legal problems. The first being under what conditions, if any, should an adopted child inherit from or through its adoptive parent? We have encountered little difficulty with the problem of inheriting from an adoptive parent but the question of when will an adoptive child inherit through an adoptive parent has given us considerable trouble. As late as 1945 in Copeland et al. v. State Bank and Trust Company et al., 300 Ky. 432, 188 S.W.2d 1017, we held without hesitation or equivocation that the words “heirs” and “issue” as well as “children” and all other words of similar import as used in a will referred ony to the natural blood relations and did not include an adopted child.

In 1950, in Isaacs v. Manning et al., 312 Ky. 326, 227 S.W.2d 418, we adopted the contrary position and held that an adopted child was included in the phrase “heirs at law” wherein a will devised property to designated children and then upon their death to their heirs at law. In the course of the opinion, we said, “where no language [shows] a contrary intent * * * an adopted daughter clearly falls within the class designated.” In this case we distinguish the Copeland case, supra.

In 1953, in Major v. Kammer et al., Ky., 258 S.W.2d 506, we again held that an adopted child was included in the term “heirs at law,” basing our decision upon the legislative changes made in the adoption laws and overruling Copeland v. State Bank and Trust Company, supra. In Edmands v. Tice, Ky., 324 S.W.2d 491, which was decided in 1959, we held that where testator used the word children, an adopted child could inherit through an adopted parent the same as if heirs at law or issue had been used.

At this point in the evolution of the question in our court we seem to have accomplished a complete 180° turn from the position which we held in 1945 in Copeland v. State Bank and Trust Company, supra. However, our agonies did not cease here, for in 1965 in the case of Wilson v. Johnson, Ky., 389 S.W.2d 634, we overruled Edmands v. Tice, supra, holding that where the word “children” was used in a will the testator uses it in its natural sense or “he is thinking of and [intending] to use the word in its commonly accepted meaning,” and thereby restricts the class to those persons who are actually born of the parent or if adopted, were adopted as children.

From the foregoing we conclude that when Amelia S. Minary used the phrase, “my then surviving heirs according to the laws of descent and distribution then in force in Kentucky,” she included the adoptive children of her sons. This leaves us with the extremely bothersome question of: “Does the fact that Myra Minary was an adult and the wife of Alfred at the time she was adopted affect her status as an ‘heir’ under the will?” KRS 405.390 provides: “An adult person * * * may be adopted in the same manner as provided by law for the adoption of a child and with the same legal effect * * *.”

KRS 199.520 provides:

“From and after the date of the judgment the child shall be deemed the child of petitioners and shall be considered for purposes of inheritance and succession and for all other legal considerations, the natural, legitimate child of the parents adopting it the same as if born of their bodies.”

It would appear from examination of the authorities that the adoption of an adult for the purpose of making him an heir has been an accepted practice in our law for many years. However, here it should be pointed out that the practice in its ancient form made the person so adopted the legal heir of the adopting party only. This court has dealt with the problem of adopting adults for the purpose of making them heirs on several occasions. In Woods v. Crump, 283 Ky. 675, 142 S.W.2d 680, a grantor by deed conveyed certain property to his daughter during her natural life then to her “heirs” for the consideration of natural love and affection. The deed was executed in 1893. In 1933, approximately forty years after the execution of the deed and after the death of the grantor, the grantee and her husband adopted appellant Woods, who was then an adult 32 years of age, as their heir. We held that appellant could not take the property as an heir of his adoptive parents, that he could inherit “from” them but not “through” them. However, in the course of the opinion we did not distinguish between the rights of an adopted adult and those of an adopted child. Therefore, the result probably would have been the same had the appellant been an infant when adopted. In the course of the opinion we stated:

“We, therefore, see that in ascertaining the intention of the creator of the estate not only may the title paper which he executes be considered, but also the terms of the statute under which the adopted child was made heir by its foster parent should also be weighed, and whensoever it appears that it was not the intention of the one executing the conveyance to embrace adopted children or heirs they will not be permitted to inherit or take title from or through foster parents under a conveyance by a stranger to the adoption contract.”

We further stated, to hold otherwise would be to

“empower and authorize her, not only to convert her life estate into practically a fee simple title, but to select by contract the one to take the title after her death as grantee in remainder under the deed of her parents who plainly contemplated no such result, nor were they parties to the contract of adoption. * * * in accord that an adopted child inherits from its foster parents, but does not inherit through such parent from the latter’s natural heirs, unless the local adopting statute so provides, or it is plainly the intention of the creator of the title that it should do so.”

In 1957, in Bedinger v. Graybill’s Executors, Ky., 302 S.W.2d 594, we had before us a case almost identical to the one here under consideration. In that case Mrs. Lulu Graybill, in 1914, set up a trust for her son Robert by will. She then provided after the death of the son that the trust “be paid over and distributed by the Trustee to the heirs at law of my said son according to the laws of descent and distribution in force in Kentucky at the time of his death.” There was a devise over to others in the event that Robert died without heirs. Robert having no issue adopted his wife long after his mother’s death. We held that the wife should inherit the same as an adopted child, there being no public policy against the adoption of a wife. However, it will be noted that in the course of the opinion it is carefully pointed out that the will directed the estate be paid to the “heirs at law of Robert” and did not provide that the estate should go to “my heirs,” “his children” or to “his issue,” indicating by this language that if the phrase had been one of the others set out the results might have been different.

In Wilson v. Johnson, Ky., 389 S.W.2d 634, a mother devised her estate to a son Leslie and directed that at the termination of the trust the principal should be divided “equally between the children of Leslie living at that time.” Leslie had no issue. He adopted two children of his wife, by a former marriage, who were both adults at the time of the adoption. In holding that the adopted parties could not inherit under the provisions of the trust, we pointed out that the intent of the testator when using the word “children” was to exclude all but children. However, in the course of the opinion we acknowledge that an adult may be adopted in the same manner as a child but stated, unequivocally, that by virtue of that fact “he does not ipso facto become a child.” In this case there is no doubt but what the adopted parties were excluded because they were adults at the time of the adoption.

In Pennington v. Citizens Fidelity Bank and Trust Company (Ky.1965) 390 S.W.2d 671, the appellant was adopted by his wife, Annie, when he was 74 years of age. After her death, he asserted a claim to the estate of her mother, whose will devised the remainder to the “child, or children of my daughter, Annie.” Here, we again held that the adopted spouse could not claim under the status of child or children and cited Wilson v. Johnson, supra.

This case could properly be distinguished from Bedinger v. Graybill’s Executors, supra, on the basis of the difference in language used in the two wills, however, no useful purpose could be served by so distinguishing them. The time has come to face again this problem which has persistently perplexed the court when an adult is adopted for the sole purpose of making him or her an heir and claimant to the estate of an ancestor under the terms of a testamentary instrument known and in existence at the time of the adoption. Even though the statute permits such adoption and even though it expressly provides that it shall be “with the same legal effect as the adoption of a child,” we, nevertheless, are constrained to view this practice to be an act of subterfuge which in effect thwarts the intent of the ancestor whose property is being distributed and cheats the rightful heirs. We are faced with a situation wherein we must choose between carrying out the intent of deceased testators or giving a strict arid rigid construction to a statute which thwarts that intent. In the Bedinger case there is no doubt but what the intent of the testatrix, as to the disposition of her property, was circumvented. It is our opinion that by giving a strict and literal construction to the adoption statutes, we thwarted the efforts of the deceased to dispose of her property as she saw fit.

When one rule of law does violence to another it becomes inevitable that one must then give way to the other. It is of paramount importance that man be permitted to pass on his property at his death to those who represent the natural objects of his bounty. This is an ancient and precious right running from the dawn of civilization in an unbroken line down to the present day. Our adoption statutes are humanitarian in nature and of great importance to the welfare of the public. However, these statutes should not be given a construction that does violence to the above rule and to the extent that they violate the rule and prevent one from passing on his property in accord with his wishes, they must give way. Adoption of an adult for the purpose of bringing that person under the provisions of a preexisting testamentary instrument when he clearly was not intended to be so covered should not be permitted and we do not view this as doing any great violence to the intent and purpose of our adoption laws.

For the foregoing reasons the action of the trial court in declaring Myra Galvin Minary an heir of Amelia S. Minary is reversed.

The judgment is reversed.

All concur.

      . Here the adopted parties were step children, both adults at the time of adoption.


author: CALVERT, Chief Justice.

text:
    GREYHOUND LINES, INC., Petitioner, v. BOARD OF EQUALIZATION FOR the CITY OF FORT WORTH et al., Respondents.
    No. B-196.
    Supreme Court of Texas.
    Oct. 4, 1967.

      Stone, Tilley, Parker, Snakard, Law & Brown, Richard Lee Brown, Fort Worth, for petitioner.
    S. G. Johndroe, Jr., City Atty., Fort Worth, for respondents.
   CALVERT, Chief Justice.

As originally filed, the purpose of this suit by Greyhound Lines, Inc., a California corporation, was to have declared void ad valorem tax assessments made by tax officials of the City of Ft. Worth and Ft. Worth Independent School District on 277 of its buses for the year 1965. Before trial, the taxes levied, $12,900 by the city and $11,775 by the school district, were paid under protest, and by amended petition Greyhound sought recovery of the taxes so paid. The plaintiff filed a motion for summary judgment and the defendants filed a similar joint motion. The trial court granted the defendants’ motion and declared the assessments made by officials of the city and the school district valid, thus decreeing, in effect, that Greyhound take nothing by its suit. The court of civil appeals reversed the judgment of the trial court and remanded the cause for trial of what it deemed to be a fact issue. 412 S-.W. 2d 76. We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.

On summary judgment proofs establishing uncontroverted facts, including the fact that Greyhound’s principal place of business in Texas is in Ft. Worth, the trial court concluded, in effect, that the 277 buses had a situs for taxation in the city and the school district, and that an apportionment formula used by officials of the city and the district for arriving at the value at which the buses were assessed was authorized by law. The formula used by taxing officials for arriving at an assessed value of $750,000 on the buses, involved ascertainment of (1) the present value of buses owned by Greyhound and operated within the State of Texas; (2) the total number of route miles traveled by the buses; (3) the number of route miles traveled by the buses within the State of Texas; (4) the ratio of the route miles traveled by the buses within the State of Texas to the total route miles traveled within and without the State; (5) the present value of the use of the buses in Texas as measured by the ratio of route miles traveled in Texas to total route miles traveled within and without the State; (6) 55% of the present value of the use of the buses in Texas.

Two points of error were presented by Greyhound in the court of civil appeals. The first asserted that the trial court erred in holding that its buses had a situs for taxation in the city and the school district. The second asserted that the trial court erred in holding that the city and school district had the right to adopt an apportionment formula for taxing the buses in the absence of authorizing legislation. As we understand the opinion, the court of civil appeals held that buses owned by a foreign corporation and operated in interstate commerce in the State of Texas can acquire a tax situs in Texas, and that an ad valorem tax can “be imposed thereon on basis of equitable apportionment fairly and in good faith calculated in consideration of presence or use within as compared with presence or use both within and without the state”; but the court further held that local taxing units are authorized “only to impose such character of tax on basis of an equitable apportionment fairly and in good faith calculated in consideration of presence or use within the subdivision as compared with presence or use both within and without the subdivision The court also held that the number of buses which can be taxed by a local taxing entity is “the average number and value of buses” maintained and used in the taxing subdivision. Having thus apparently disagreed with both the method used by the city and school district for ascertaining the number of buses subject to taxation and the formula used for arriving at assessed value, the court of civil appeals reversed the trial court’s judgment and remanded the cause to that court to determine the proper amount of taxes due by Greyhound to the city and school district.

Both parties, plaintiff and defendants, applied for writ of error and both applications were granted. Greyhound’s application presents essentially the same questions presented in the court of civil appeals. In addition, both Greyhound and the taxing entities attack the method announced by the court of civil appeals for determining the number of buses to be taxed and the formula for arriving at their taxable value.

Greyhound’s contention that its buses do not have a tax situs in Ft. Worth, Texas, is based upon the common law rule that as personal property its buses are constructively situated at its corporate domicile in California (mobilia sequuntur personam — movables follow the person) ; and that the rolling stock of a motor bus company traveling and used in Texas as a part of its interstate operations does not come within any of the exceptions recognized in Texas to rule of mobilia. It emphasizes that the only judicially declared exceptions to the mobilia rule are set out in State v. Crown Central Petroleum Corp., 242 S.W.2d 457 (Tex.Civ. App. — San Antonio 1951, writ ref’d), and are as follows: “(1) there is a statute to the contrary, or (2) the property is tangible and has acquired an actual situs of its own in a state or place other than where owner is domiciled or (3) in case of intangible property, it has acquired a business situs in a state other than the one where the owner is domiciled.” It then argues that inasmuch as its rolling stock is not intangible property, there is no statute fixing a tax’ situs therefor, and there is no proof that any of its buses had through permanency of location in Ft. Worth acquired a tax situs of their own in the city and school district, the defendants were without power to impose the taxes in question. It should be noted at this point that Greyhound does not contend that imposition of the taxes violates the constitutional inhibition against unduly burdening interstate commerce or the constitutional guaranty of due process, except, as to the latter, in so far as its denial of tax situs may raise a question of due process. See Braniff Airways v. Nebraska State Board, 347 U.S. 590, 74 S.Ct. 757, 98 L.Ed. 967 (1954).

Greyhound is correct, of course, in asserting that its buses do not come within the exception to mobilia relating to intangibles. It is also correct in asserting that there is no Texas constitutional or statutory provision expressly fixing a tax situs for rolling stock of foreign motor bus corporations which travels and is used in Texas in interstate operations, as there is for rolling stock of railroads. See Tex.Const. Art. VIII, Sec. 8 and Art. 7169. The question thus narrows to whether the buses have acquired an actual tax situs of their own in this State and in the city and school district. We consider first whether the buses have acquired a tax situs in the State; for, if they have not, they cannot have acquired a tax situs in the city and school district.

The constitutional provisions relevant to the power of the State to impose taxes on the property of corporations are Art. VIII, Secs. 1, 3, 4 and 11. The pertinent provisions will be quoted. Sec. 1: “Taxation shall be equal and uniform. All property in this State, whether owned by natural persons or corporations, other than municipal, shall be taxed in proportion to its value, which shall be ascertained as may be provided by law. * * * ” Sec. 3: “Taxes shall be levied and collected by general laws and for public purposes only.” Sec. 4: “The power to tax corporations and corporate property shall not be surrendered or suspended by act of the Legislature, by any contract or grant to which the State shall be a party.” Sec. 11: “All property, whether owned by persons or corporations shall be assessed for taxation, and the taxes paid in the county where situated * *

The relevant statutory provisions will be quoted. Art. 7145: “All property, real, personal or mixed, except as may be hereinafter expressly exempted, is subject to taxation, and the same shall be rendered and listed as herein prescribed.” Art. 7147: “Personal property, for the purposes of taxation shall be construed to include * * all personal estate of moneyed corporations, whether the owners thereof reside in or out of this State * * *.” Art. 7153: “All property, real and personal, except such as is required to be listed and assessed otherwise, shall be listed and assessed in the county where it is situated * *

Neither the Constitution nor the statutes provide for exemption of personal property of foreign corporations in this State from taxation by this State and its political subdivisions. Indeed, the express language of Sec. 4, Art. VIII of the Constitution denies to the Legislature the power to grant such an exemption; and yet, to hold that the rolling stock of a foreign motor bus corporation, constantly traveling upon the highways of this State and enjoying the protection and benefits provided by this State, has no taxable situs in the State, would be to grant it tax exemption. Moreover, such a holding would result in discrimination against motor bus corporations chartered in this State, similarly using its highways, in violation of the “equal and uniform” mandate of Sec. 1, Art. VIII of the Constitution. A result so incompatible with the clearly expressed intention of the framers of the Constitution and of the Legislature in its statutory enactments, should not be reached unless compelled by some immutable law or some overriding public policy consideration. We hold that it is not compelled by either.

Texas has adopted the mobilia rule as the basic rule for locating the tax situs of tangible personal property at the domicile of the owner. That was the rule of the common law; and the provisions of Sec. 11, Art. VIII of the Constitution and of Art. 7153 requiring that property be taxed “where situated” are but declarative of the common law, and mean where the property is situated for tax purposes under principles of common law. Great Southern Life Insurance Co. v. City of Austin, 112 Tex. 1, 243 S.W. 778 (1922). But the mobilia rule is a legal fiction, Guaranty Life Ins. Co. v. City of Austin, 108 Tex. 209, 190 S.W. 189 (1916); and as one writer, quoting liberally from courts of highest authority, has put it:

“It was ‘intended for convenience, and not to be controlling where justice does not demand it.’ It is not of universal application, does not rest on any constitutional foundation, and gives way before express law. As has been said, ‘the fiction that personal property follows the domicile of its owner’ cannot be allowed ‘to obscure the truth.’ ‘This rule,’ it has been well said, ‘is subject to so many exceptions and limitations that it is quite as liable to mislead as to furnish a correct guide, when considered alone’.”
Cooley, The Law of Taxation, § 440 (4th ed. 1924).

To acquire a tax situs of its own in a particular state, it is not necessary that tangible personal property be situated in the state with absolute permanency, or that it be there situated with no intention on the part of the owner to remove it; it is enough to fix tax situs that its situation have a degree of permanency which will distinguish it from property which is in the state on a purely temporary or transitory basis. Guaranty Life Ins. Co. v. City of Austin, 108 Tex. 209, 190 S.W. 189 (1916); Hardesty Bros. v. Fleming, 57 Tex. 395 (1882); Town of Cady v. Alexander Const. Co., 12 Wis.2d 236, 107 N.W.2d 267, 108 N.W.2d 145 (1961); Cooley, The Law of Taxation, § 452 (4th ed. 1924); 51 Am.Jur. Taxation, § 454.

There is no summary judgment proof in the record that any single one of the 277 buses was stationed in Texas with any degree of permanency; but with respect to transportation units owned by corporations engaged in an interstate transportation business, the Supreme Court of the United States has held in a long line of decisions that the legal requirement of permanency of situation and therefore tax situs of such units apart from the state of legal domicile, is established by continual use, regular or irregular, of the units in a non-domiciliary state. Pullman’s Palace Car. Co. v. Commonwealth of Pennsylvania, 141 U.S. 18, 11 S.Ct. 876, 35 L.Ed. 613 (1890); Adams Express Co. v. Ohio State Auditor, 165 U.S. 194, 17 S.Ct. 305, 41 L.Ed. 683 (1896), on rehearing, 166 U.S. 185, 17 S.Ct. 604, 41 L.Ed. 965 (1897); American Refrig. Transit Co. v. Hall, 174 U.S. 70, 19 S.Ct. 599, 43 L.Ed. 899 (1898); Union Refrig. Transit Co. v. Lynch, 177 U.S. 149, 20 S.Ct. 631, 44 L.Ed. 708 (1899); Johnson Oil Ref’g Co. v. State of Oklahoma, 290 U.S. 158, 54 S.Ct. 152, 78 L.Ed. 238 (1933); Ott v. Mississippi Valley Barge Line Co., 336 U.S. 169, 69 S.Ct. 432, 93 L.Ed. 585 (1948); Braniff Airways, Inc. v. Nebraska State Board, 347 U.S. 590, 74 S.Ct. 757, 98 L.Ed. 967 (1953). The cited cases leave no doubt that Greyhound’s buses traveling in and using the highways of Texas in carrying on the corporation’s business enterprise have a tax situs in this State.

Once the conclusion is reached that the buses have a tax situs in this State, the question of local tax situs can have only one logical answer. In the absence of legislation to the contrary, the local tax situs of rolling stock owned by a corporation is at the place where the corporation maintains its principal office or place of business. This court has so held with respect to rolling stock of a domestic corporation, City of Ft. Worth v. Southland Greyhound Lines, 67 S.W.2d 354 (Tex.Civ.App.—Ft. Worth, 1931), certified questions answered, City of Ft. Worth v. Southland Greyhound Lines, 123 Tex. 13, 67 S.W.2d 361 (1933); Gulf, C. & S. F. Ry. Co. v. City of Dallas, 16 S.W.2d 292 (Tex.Com.App., 1929); Chemical Express v. City of Roscoe, 310 S.W.2d 694 (Tex.Civ.App.—Eastland, 1958, writ ref’d) ; and the rule is equally applicable to rolling stock of foreign corporations.

Texas constitutional and statutory provisions for taxing property owned by corporations make no distinction between that owned by domestic and that owned by foreign corporations. In interstate relationships domestic corporations are domiciled in Texas, and in purely intrastate or local relationships they are domiciled at their home office or principal place of business. So it is with foreign corporations doing business in this State. In interstate relationships they are domiciled in the state where incorporated, but the equivalent of a local domicile for purposes of doing business in Texas is at their principal place of business in this State when one has been established. See McDaniel v. Texarkana Cooperage & Mfg. Co., 94 Ark. 235, 126 S.W. 727 (1910). Cf. Pittsburg Water Heater Co. of Texas v. Sullivan, 115 Tex. 417, 282 S.W. 576 (1926). We hold that to the extent that Greyhound’s buses are taxable in Texas, their tax situs, in the absence of legislation establishing a different situs, is in Ft. Worth. The provisions of the Charter of the City of Ft. Worth and of the legislative act creating the Ft. Worth Independent School District authorizing, respectively, the levy of ad valorem taxes on personal property “located within the territorial limits” of the city and “located in” the school district do not militate against our conclusion. The expressions are synonymous with “where situated.” See Gulf, C. & S. F. Ry. Co., 16 S.W.2d 292 (Tex.Com.App., 1929). We need not and do not decide where in Texas the tax situs of the buses would be if Greyhound had no principal place of business in this State.

There is no statute expressly providing a formula for assessing the rolling stock of foreign motor bus corporations used in and operated over the highways of this State, but we have no doubt of the authority of the city and school district to use the formula they adopted. Ft. Worth is a Home Rule City, deriving its powers from Sec. 5, Art. XI of the Constitution, the Home Rule amendment, which reads in pertinent part as follows:

“Cities having more than five thousand (5000) inhabitants may * * * adopt or amend their charters,, subject to such limitations as may be prescribed by the Legislature, and providing that no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State; said cities may levy, assess and collect such taxes as may he authorized by law or by their charters; * *

Art. 1175, enacted to implement the Home Rule Amendment, contains the following provisions:

“Cities adopting the charter or amendment hereunder shall have full power of local self-government, and among the other powers that may be exercised by any such city the following are hereby enumerated for greater clarity:
* * * * * *
“7. To provide for the levying of any general or special ad valorem tax for any purpose not inconsistent with the Constitution of this State.
“8. To provide for the mode and method of assessing taxes, both real and personal, against any person and corporation * * *.
“9. To provide for the collection of all taxes. * * * ”

Art. 7145 requires that all personal property be rendered for taxes, and Art. 7174 requires that it “be valued at its true and full value in money.”

The charter of the city expressly confers the power to “assess, levy and collect taxes for general and special purpose on all the subjects or objects which the City may lawfully tax”; and it further provides that the city shall have and exercise all the powers conferred upon cities by the Home Rule Amendment, by Art. 1175, and by all other laws passed by the Legislature relating to the powers enumerated in the charter.

Under the provisions of the Constitution, the statutes and the charter, it was the duty of the city tax assessor to assess Greyhound rolling stock which had a tax situs in this State and in the city. It was also his duty to make the assessment of the rolling stock at its “true and full value” as limited by the decisions of the Supreme Court of the United States. The assessor called upon Greyhound’s agents for a rendition of the rolling stock, and they declined to make it. Art. 7193 provides that when a tax assessor fails to obtain a rendition from a property owner, he “shall ascertain the amount and value of such property and assess the same as he believes to be the true and full value thereof; and such assessment shall be as valid and binding as if such property had been rendered by the proper owner thereof.” It thus became the further duty of the tax assessor to ascertain the number of buses regularly and continuously operated by Greyhound in this State in interstate commerce and to adopt a formula for arriving at their value which would meet the standards of fairness and reasonableness decreed by the Supreme Court of the United States in the decisions herein cited. Authority for adoption of such a formula is amply supplied by the quoted statutes, particularly by paragraph 8 of Art. 1175 which authorizes Home Rule cities to provide for “the mode and method of assessing taxes.”

In support of its contention that the city tax assessor could not adopt an apportionment formula as a basis for taxing its buses in the absence of enabling legislation, Greyhound cites City of Bessemer v. Southern Ry. Co., 157 Ala. 428, 48 So. 103 (1908); State ex rel. Knox v. Union Tank Car Co., 151 Miss. 797, 119 So. 310 (1928); City of Jackson v. Dixie Greyhound Lines, Inc., 192 Miss. 133, 4 So.2d 721 (1941); and Lewis & Holmes Motor Freight Corp. v. City of Atlanta, 195 Ga. 810, 25 S.E.2d 699 (1943). Aside from the fact that some of the cited cases seem not to be in point, all may be distinguished by the fact that none of the decisions are by courts of states which are shown to have constitutional and statutory provisions similar to those in this State applicable to Home Rule cities.

The summary judgment evidence establishes that in 1960 Greyhound’s predecessor, Southwestern Greyhound Lines, Inc., rendered 277 buses for taxation by the City of Ft. Worth and Ft. Worth Independent School District, and that there had been no significant change between 1960 and 1965 in the number of buses operating in the State. The evidence also establishes that the formula used by the assessor in 1965 for arriving at the assessed value of the buses was the same as that used by the predecessor corporation in rendering its buses for taxation by the city and school district in 1960. The formula meets the standards of fairness and reasonableness laid down by the Supreme Court of the United States in the decisions cited earlier in this opinion. See Ott v. Mississippi Valley Barge Line Co., 336 U.S. 169, 69 S.Ct. 432, 93 L.Ed. 585 (1948). Assuming their taxability by the city and school district, Greyhound does not question either the number of buses taxed or the fairness and reasonableness of the formula used to arrive at their taxable value. We hold that the assessment of the buses for city purposes is in all respects valid, and that Greyhound is not entitled to recover the sum of money paid to the city as taxes for 1965.

Our holding with respect to city taxes automatically settles the question with respect to school district taxes. The Ft. Worth Independent School District was incorporated by a special act of the Legislature. See 23 Gammel’s Special Acts 39th Leg. 1925, ch. 230, p. 674. The act directs the tax assessor of the City of Ft. Worth to assess all property located in the school district, and provides that such assessment shall “be the same as the assessment made in the city of Fort Worth for municipal purposes.”

There is no fact question to be decided in this case. The judgment of the court of civil appeals is reversed and judgment is here rendered that plaintiff take nothing.

      . Emphasis ours throughout unless otherwise indicated.

      . All Article references are to Vernon’s Tex.Civ.Stat.Ann.


author: GRIFFIN, Justice.

text:
    The FIDELITY AND CASUALTY COMPANY OF NEW YORK, Petitioner, v. Linden M. JOHNSON, Respondent.
    No. B-211.
    Supreme Court of Texas.
    Oct. 4, 1967.
    Baker, Botts, Shepherd & Coates, Paul W. Persons, Houston, for petitioner.
    Raymond L. McDermott, Mabel Grey Howell, Houston, for respondent.
   GRIFFIN, Justice.

This is a workmen’s compensation case in which respondent, Linden M. Johnson, as plaintiff, sued petitioner Insurance Company, as defendant, in a district court of Harris County, Texas. Suit was for permanent total loss of the use of plaintiff’s right leg. On a jury verdict favorable to plaintiff, the trial court rendered judgment in plaintiff’s favor for total loss of use of said leg. On appeal that judgment was affirmed by the Court of Civil Appeals. 413 S.W.2d 401. We reverse the judgment of the Court of Civil Appeals and remand the case to the trial court for a new trial.

The judgment for plaintiff was signed by Judge John Snell of the 152nd District Court of Harris County, Texas, January 26, 1966. The Insurance Company’s motion for new trial was overruled March 21, 1966. The transcript was filed in the Court of Civil Appeals May 11, 1966. Orders were duly entered extending the time for filing the statement of facts which contained the bills of exceptions to June 30, 1966. On June 29, 1966, Judge Snell being absent, Judge W. M. Holland, the presiding judge for Harris County District Courts, as well as judge of the 127th Judicial District Court of Harris County, Texas, approved the statement of facts (counsel being unable to agree on it). He entered an order in the 152nd District Court extending time to file the separate bills of exception to June 30, 1966. On June 29th Judge Holland in the 152nd District allowed the bills of exceptions and ordered them filed in the trial court. On June 29th the Insurance Company had a supplemental transcript prepared containing the bills of exceptions as well as Judge Holland’s orders. The statement of facts, bills of exceptions and supplemental transcript were filed in the Court of Civil Appeals June 29, 1966. Within the thirty days provided by Rule 404, Texas Rules of Civil Procedure, plaintiff made his motion to strike the statement of facts, bills of exceptions and supplemental transcript. The reason assigned for seeking this relief was that none of these instruments or any orders approving and allowing the same was signed by Judge Snell, who presided at the trial of the case in his 152nd District Court, but were signed by Judge W. M. Holland, presiding judge for Harris County District Courts and who was the judge of the 127th District Court.

The Court of Civil Appeals sustained this motion and struck the statement of facts, bills of exceptions and supplemental transcript. In addition, the Court of Civil Appeals said that if it was in error in its action striking the statement of facts, bills of exceptions and supplemental transcript, it had carefully reviewed all points of error, and if it had jurisdiction the points would be overruled.

The first question to be decided is whether or not the Court of Civil Appeals was correct in sustaining the motion to strike the statement of facts, bills of exceptions and supplemental transcript. We hold it was not correct in so doing.

The question of the authority of Judge Holland to take the action in Judge Snell’s court, as above set out, is controlled by that part of Title Eight, “Apportionment Judicial Districts,” Article 199, Vernon’s Annotated Civil Statutes, Vol. 1. This section creates the 127th, the 152nd and other Civil District Courts in Harris County, Texas and provides for their operation and defines some of the duties of their judges.

Acts 1951, 52nd Legislature, p. 504, ch. 308, Sec. 3, contain the language below quoted from the 1963 Act, and it has remained in subsequent enactments. The Acts of the 58th Legislature, p. 1335, Ch. 507, Sec. 3(B), provide, “* * * and in the event of the absence, sickness or disqualification of the Judge of any of said Civil District Courts any of the other Judges of said District Courts may act and preside * * * during such absence, sickness or inability of any regular judges to act and preside therein * * The above provision, although included in the paragraph providing for the judges to take their vacation is much broader and covers other absences than absences of a regular judge on vacation. That this is true is shown by the provision regulating vacations of regular judges and prohibiting the election of a special judge by the practicing lawyers of such court to replace a vacationing judge. On the other hand, the above quoted provision covering “absence, sickness, or disqualification” of a regular judge specifically permits the lawyers to elect a special judge according to Title 40 (Art. 1884 et seq.) of the Revised Civil Statutes of Texas of 1925. (All emphasis herein that of this Court.)

The Act of 1963, supra, Sec. 3(C), contains the following clause regarding repeal of other laws: “(C) All laws and parts of laws in conflict with the provisions of this Section are hereby repealed to the extent of such conflict only. As to all other laws or parts of laws, this Section shall be cumulative.”

The Acts of the 56th Legislature (1959), p. 903, ch. 414, 1, contains the following provision which is not in conflict with the 1963 Act and is therefore still in effect: “The judge of any of said District Courts and Criminal District Courts may in his discretion try and dispose of any causes, matters and proceedings for any other judge of said courts.”

From the above Acts we see that the Legislature has provided for a district judge to sit for, try and dispose of “causes, matters, and proceedings” for the judge of any other of said courts. Of course, one judge could not go into the court of another judge, who is actively engaged in the trial of a case and take over such case.

In order to reach the same result of interchangeability of district judges in any county having two or more district courts having civil jurisdiction, Rule 330(g), Texas Rules of Civil Procedure, provides in part: “* * * any judge may hear any part of any case or proceeding pending, in any of said courts and determine the same, or may hear and determine any question in any case, and any other judge may complete the hearing and render judgment in the case.”

The Rules of Civil Procedure and the cases cited by the respondent as upholding the action of the Court of Civil Appeals are not in point in our case but cover different fact situations.

Compare Trinity River Authority of Texas v. McMurrey (Tex.Civ.App., 1967), 411 S.W.2d 422, writ refused, n. r. e.

The statement of facts, bills of exceptions and supplemental transcript were properly before the Court of Civil Appeals and are properly to be considered by us.

Petitioner Insurance Company has other points of error, but in our view its points of error complaining of the following argument of plaintiff’s counsel to the jury must be sustained, and this requires that we remand the cause to the trial court for another trial:

“Now, if I am wrong about it and I don’t think I am for one minute, but if I am wrong about it, I want to ask you just one favor — if you go out there and write any verdict other than I want you to — answer my question when you leave this courtroom to ease my conscience. I hope you go up to Linden Johnson and tell him where he can go and get a job and keep a job that requires the use of that leg — please do it because he can’t—
“DEFENDANT’S COUNSEL: Objection, counsel is intimidating the Jury by using statements for them to tell him where he can go and get a job. I think that is intimidating the Jury.
“PLAINTIFF’S COUNSEL: I am not trying to intimidate you but you just go up to him and tell him where that job is because I know and you know and as his attorney for nearly three years that he cannot get and keep a job that requires the use of that right leg and he never will be able to and if you know we are wrong about it, please come and tell after your verdict is received where that job is — where they will accept him in the first place that requires the use of that right leg in the performance of the task of a working man.
* * *
“I don’t think you can deny it, but if you do, I think you will be ladies and gentlemen enough to come and tell him— ‘Linden, I know where that job is— one you can get that requires the use of that right .leg — I simply believe you can get it and keep it Linden.’ If you can do that in good faith and good conscience that I am wrong—
“DEFENDANT’S COUNSEL: Your Honor, objection to this as another highly inflammatory intimidation of the jury and ask the jury to be instructed to disregard it.
“THE COURT: Overruled.
“DEFENDANT’S COUNSEL: Note my exception, please.
“PLAINTIFF’S COUNSEL: I think what I asked was fair — I do not think it was unreasonable — goodness knows— you know I am not trying to intimidate you — I’m just asking you to do what is fair and reasonable.”

This argument was an appeal to the jurors to decide the case in plaintiff’s favor or to go to plaintiff and justify their decision.

The charge of the court contained an issue inquiring if the plaintiff had suffered a total loss of the use of his right leg. The evidence on this issue was conflicting. It was on this context that the above argument was made. Those experienced in trial of lawsuits before juries know the reluctance and embarrassment that would be caused a juror if he had to talk to the losing party and justify the jury’s verdict. The argument was an appeal to the sympathetic feelings of the jury to return answers to the issue submitted based on sympathy rather than an analysis of the evidence heard in the trial. We have carefully read the statement of facts, as well as the bills of exceptions and find this argument was reasonably calculated to cause and probably did cause the rendition of an improper judgment in this case. Rule 503, Texas Rules of Civil Procedure. See also Howard v. Salmon, Tex.Sup., 359 S.W.2d 882, 885 (1962); Rutherford v. Dallas Joint Stock Land Bank (Tex.Civ.App., 1936), 91 S.W.2d 1182, 1183, writ dismissed; Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478, 481-482 (1943).

For the errors pointed out above, the judgments of both courts below are reversed and this cause remanded to the trial court for a new trial.


author: MORRISON, Judge.

text:
    Martin Steven LITTLETON, Appellant, v. The STATE of Texas, Appellee.
    No. 40051.
    Court of Criminal Appeals of Texas.
    Jan. 25, 1967.
    Rehearing Denied March 8, 1967.
    Certiorari Denied Oct. 9, 1967.
    See 88 S.Ct. 115.

      W. C. Shead, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Phyllis Bell and Erwin G. Ernst, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is murder without malice; the punishment, three years.

Notice of appeal was given on January 29, 1965, but because of numerous extensions of time granted, the record did not reach this Court until November 30, 1966.

Since this appeal is controlled by Vernon’s Ann.Code of Criminal Procedure in effect prior to January 1, 1966, a brief statement of the facts is required.

Appellant, 55 years of age, had been married to the 34 year old deceased for sixteen years. About a week prior to the homicide, appellant became suspicious that deceased was having an illicit relationship with one John Brooks, a 28 year old single man who rented and resided in a small house at the rear of his home. At dusk on the night of the homicide, deceased left with John Brooks and several very small children to go to a drive-in movie. Witnesses for the State said they went with appellant’s knowledge and consent. Appellant testified that he did not know that Brooks was with the deceased until after they left. Appellant concealed his automobile so that it would appear that he was not at home. Brooks, the deceased and the sleeping children did not return home until 3:00 a.m. By this time appellant was considerably agitated and instead of confronting them and demanding an explanation, he absented himself from the house, but kept it under surveillance and repeatedly peeped through the windows. In the meantime he armed himself with a shot gun and when he saw what appeared to him to be two naked bodies close together in deceased’s bedroom, he fired one shot through the window. It was shown that pellets from this blast hit both deceased and Brooks. Appellant then entered his home and fired two more shots in the dark. Both deceased and Brooks were killed instantly. In answer to appellant’s call, the police arrived and found Brooks naked from the waist up in the bedroom and deceased clad only in her panties and a sweater in the same room.

This prosecution was for the slaying of appellant’s wife. We find the evidence sufficient to support the conviction and will discuss the contentions raised by brief and in argument.

It is first contended that the court erred in failing to grant a mistrial when the prosecutor allegedly displayed a picture of Brooks’ bullet ridden body to the jury. The picture has been brought forward in this record, but the proof that the jury saw it is meager. The picture was not admitted in evidence or ever handed to the jury. When objection was made that the prosecutor had displayed it to the jury, the Court promptly inquired if any member of the jury had seen the picture. One juror answered, “a portion of the picture,” but that, “the details were not clear.” Another juror informed the court that she too had seen the picture which she could identify as a picture of a body but not distinctly. When no other juror volunteered anything in answer to the judge’s questions propounded to the panel, the panel was retired from the courtroom and the prosecutor was questioned. He testified that after having completed his examination of a witness he carried the picture in front of the jury concealing the same from them but inadvertently placed it face up among the exhibits. He stated that he immediately realized his mistake and turned it over. No further testimony was adduced on the question.

We have concluded that no reversible error is shown and the Court did not err in failing to grant a mistrial.

Appellant’s next contention is that he was denied due process of law in that his attorney was forcibly prevented from entering the premises and making a proper investigation and from counseling with appellant at the scene. He bases his contention on his testimony that after he had called the police and while waiting for them to arrive he went to the home of his attorney (who represents appellant on appeal but did not at the trial) which was a short distance from his home and asked him to come to the scene and his attorney agreed to do so. He further relies upon the testimony of one of the officers who participated in the on-the-scene investigation that no one was allowed in the bedroom other than police officers, investigators, medical examiners and the ambulance driver. Attor-nel Shead testified at the trial in absence of the jury as to other matters, but he was not questioned as to whether he went immediately to appellant’s house or not. Assuming, but not deciding, that there could be merit in appellant’s contention, he simply does not have facts before us to authorize a consideration of the same.

Appellant’s third contention is that the court erred in failing to charge on circumstantial evidence. In the case at bar, appellant testified fully as to firing the shot gun three times, but contends the blast that killed his wife was fired at a human form in the dark which he thought was the naked body of John Brooks and that he had no intention of killing the deceased. This Court said in Ralph v. State, 141 Tex.Cr.R. 371, 148 S.W.2d 401, “It is well established in this state that a charge on circumstantial evidence is not required where the main fact is proved by direct testimony and the question of the defendant’s intent only is to be inferred from the circumstances.”

Finding no reversible error, the judgment is affirmed.