text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. H. M. CALLIHAN et al., Appellees.
    Court of Appeals of Kentucky.
    May 28, 1965.
    Robert Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Phillip K. Wicker, Department of Highways, Somerset, Eugene Clark, Department of Highways, Manchester, for appellant.
    H. M. Sutton, Sutton & Martin, Corbin, for appellees.
   WADDILL, Commissioner.

In this condemnation proceeding to obtain right of way for the relocation of U S 2S-E about four miles south of Barbour-ville, the appellee-landowners were awarded $9,000. The Commonwealth urges that the judgment should be reversed for lack of sufficient competent evidence to support it and because of prejudicial argument to the jury.

The appellees owned a 44.15 acre tract of land fronting on U S 25-E. By this action the Commonwealth took 3.8 acres in fee, .02 acre for a permanent easement and .03 acre for a temporary easement. The only improvements taken included septic tanks and field line for a house and a scale house which had been abandoned when appellees discontinued a small coal mining operation on their land over 15 years ago. Appellees had previously razed a nearby tipple. At the time of this taking and for some years prior thereto, so far as this record shows, the tract, which was primarily hilly woodland, was used only as a residence by appellees’ daughter.

Witnesses for the Commonwealth gave estimates of appellees’ damages ranging from $1900 to $2100, while the estimates to which appellees’ witnesses testified ranged from $11,500 to $16,000.

Although serious doubt was cast on whether the coal remaining under appel-lees’ land could ever be economically mined, each of appellees’ witnesses testified that he considered loss of access from the area in which the coal was located to the new road in computing the after value of the property. However the Commonwealth showed that an approach to the new road would connect it with the drive to the house. Since this drive furnished the only access to the so-called “coal land” before the taking, the access to the new road will be at least as good after the taking. In light of this fact it would he ridiculous to say that the condemnation had resulted in loss of reasonable access for which the landowners should be compensated. Commonwealth, Department of Highways v. Yates, Ky., 383 S.W.2d 340. The trial court erred in overruling the Commonwealth’s objections to this evidence and its timely motions to strike the valuation testimony of the witnesses for appellees which was permeated with r. consideration of this non-compensable factor. Commonwealth, Department of Highways v. Fancher, Ky., 390 S.W.2d 164 (Decided May 7, 1965).

In his closing argument to the jury counsel for appellees stated that it would cost $5,250 more to process appellees’ coal at a new tipple site than it would have cost on the site taken for the highway. Not only was this amount in excess of the result of multiplying a rough estimate of cost (to which estimate the trial court originally sustained an objection) times an approximation of the amount of coal in'ap-pellees’ land, but it depended upon an assumption, not warranted by the record, that the coal could be mined and marketed in the foreseeable future. Certainly this factor was too speculative to have any bearing on the difference in the fair market value of appellees’ land caused by the taking. The trial court erred in permitting it to be argued to the jury.

Furthermore the reasons assigned by appellees’ witnesses for their valuations were so worthless (and sometimes incompetent) that their evidence is completely lacking in probative weight. Commonwealth, Department of Highways v. Darch, Ky., 390 S.W.2d 649, (Decided May 14, 1965); Commonwealth, Department of Highways v. Williams, Ky.; 383 S.W.2d 687.

For the reasons assigned the judgment must he reversed. The errors occurring at the trial will presumably not occur upon a new trial in light of our more recent published opinions.

The judgment is reversed and the case is remanded for a new trial consistent with this opinion.


source: Caselaw Access Project

author: CULLEN, Commissioner.

license: Public Domain

text:
    Dock B. BENNETT, Appellant, v. Carl DUDLEY, Appellee.
    Court of Appeals of Kentucky.
    May 28, 1965.

      Frank G. Gilliam and William S. Black, Lexington, for appellant.
    , James M. Todd, Lexington, for appellee.
   CULLEN, Commissioner.

The appeal is from a judgment declaring null and void an agreement between appellant Dock B. Bennett and appellee Carl Dudley. Bennett had sought specific performance of the agreement.

Dudley was the owner of a parcel of real estate near Lexington on which he conducted a photo-copying business. Bennett was interested in buying the real estate. The two men entered into a written agreement styled “Agreement to Purchase” which contained these provisions:

L Dudley “agrees to give an option to purchase” the real estate to Bennett, “provided:
“(a) That * * * [Dudley] disposes of his business by sale or otherwise * * * ”
“2. That at such time as * * * [Dudley] desires to sell to * * * [Bennett] the * * * property * * *, he will notify * * * [Ben-
nett], in writing, of his intention to sell, and thereupon * * * [Bennett] shall have a period of sixty (60) days within which to exercise the option and consummate the purchase.”

3. The price is to be $30,000.

Some time after the agreement was executed Dudley did sell his business. He did not notify Bennett of the sale or of any desire to sell the land to Bennett, but the latter heard about the sale of the business and within 60 days of the date of that sale he notified Dudley that he was exercising his option to purchase the real estate according to the agreement. Dudley refused to sell and asserted that the agreement was unenforceable. Thus this lawsuit.

It will be noted that the agreement, on its face and by its express language, conditions the giving of the option to Bennett upon two things: (1) The sale of the business, and (2) the forming by Dudley of a desire to sell the land to Bennett. In effect, the agreement says that Dudley will give Bennett an option if Dudley ever decides that he wants to do that. Obviously such an agreement has no enforceability.

Bennett argues that the agreement should be construed as if the giving of the option were conditioned only on the sale of the business and not on the existence of a desire to sell on Dudley’s part. He cites the rule that where a writing is susceptible of two constructions, one of which would render it enforceable and the other unenforceable, the former construction will prevail. See Coles v. Morrison, 202 Ky. 834, 261 S.W. 600. The trouble here is that the agreement between Dudley and Bennett is not susceptible of two constructions. The construction contended for by Bennett is not one that can be reached from the terms of the agreement; it represents only an idea of what the parties ordinarily would be expected to have agreed upon.

The court cannot make a new contract for the parties or revise their contract under profession of construing it. State Farm Mutual Automobile Insurance Co. v. Hobbs, Ky., 268 S.W.2d 420.

There are no special equities in Bennett’s favor, because he was the one who sought the making of the agreement and his attorney drafted it. It reasonably could be that Dudley, who was not an anxious seller, was willing only to make the illusory promise of giving an option if he felt like it, and that Bennett, who was an anxious buyer, was willing to accept such a promise rather than nothing. The literal terms of the agreement are not so completely unreasonable as to show that the parties certainly must have meant something else.

The judgment is affirmed.


author: CLAY, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Edward PHILLIPS et al., Appellees.
    Court of Appeals of Kentucky.
    May 28, 1965.
    Robert Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Deddo G. Lynn, Lexington, for appellant.
    W. Earl Dean, Harrodsburg, for appel-lees.
   CLAY, Commissioner.

In this condemnation case the jury awarded the landowners $4,000 for a strip of land eight feet wide, taken from the front of their residence. The Commonwealth complains of excessiveness and improper evidence.

The property is located on College Street in Harrodsburg, with a 49 foot frontage. Located thereon is a six room house. The widening of the street resulted in the taking of the eight foot strip. The right of way line after the taking was within one and one-half feet of the residence, although upon completion of the improvements the edge of the roadway was nine feet from the front porch.

The Commonwealth’s witnesses estimated the damages at $400. The landowners’ experts fixed this difference in value at $5,000. All of the witnesses’ appraisals of the after value were substantially the same (approximately $10,000). The principal difference in valuation arose in connection with the before value.

The thrust of the Commonwealth’s argument with respect to excessiveness seems to be that the best use of this property would be for commercial purposes and therefore the loss of the eight foot strip could not cause substantial damage. However, the fact remains that the property is now being used for residential purposes, and the landowners’ witnesses based their opinions of both before and after values on that use.

The Commonwealth contends that the testimony of both the landowners’ expert witnesses should have Been stricken because they either used improper factors or did not support their opinions by comparable sales. These witnesses were well qualified in the appraisal of real estate. We find nothing in their opinion testimony which would destroy its probative worth. These same witnesses presented similar evidence in Commonwealth, Department of Highways v. Mayes, Ky., 388 S.W.2d 125.

The verdict was less than the jury could have awarded under the evidence. As a matter of fact, they fixed the after value of the property higher than that of any witness. While the award was liberal, it does not appear to have been the result of passion and prejudice and we cannot declare it excessive in the light of the evidence.

The judgment is affirmed.


author: PALMORE, Judge.

text:
    COMMONWEALTH of Kentucky, Robert Matthews, Attorney General, et al., Appellants, v. James HALLAHAN, County Court Clerk of Jefferson County, et al., Appellees.
    Court of Appeals of Kentucky.
    May 28, 1965.
    Robert Matthews, Atty. Gen., Henri L. Mangeot, Asst. Atty. Gen., for appellants.
    E. P. Sawyer, Jefferson County Atty., Kenneth B. Kusch, Michael M. Hellmann, Louisville, for appellees.
   PALMORE, Judge.

The question in this case is whether that portion of Senate Bill 22 enacted in 1964 (c. 21, Acts of 1964) which now appears as KRS 2.015 impliedly amends KRS 402.-210 by reducing from 21 to 18 the age at which a person can obtain a marriage license without the consent of parent or guardian. The circuit court held that it does. Our conclusion is that it does not.

KRS 402.210 provides that if “either of the parties is under twenty-one years of age and not before married, no license shall issue without the consent of his or her father or guardian,” etc. '

S. B. 22 as finally enacted consisted of six sections. KRS 2.015 is Section 1, and reads as follows:

“Persons of the age of eighteen years are of the age of majority for all purposes in this Commonwealth except for the purchase of alcoholic beverages and for purposes of care and treatment of handicapped children, for which twenty-one years is the age of majority.”

Had the act stopped right there, we probably would have no diificulty with regard to its effect on KRS 402.210 (though very much at sea with respect to various other statutes). But the remaining sections of the bill go on to amend expressly each of five specific statutes by substituting “eighteen” for “twenty-one.” These statutes are KRS 385.010 (Uniform Gift to Minors Act), KRS 389.010 (sales of realty of persons under disability), KRS 394.020 and 394.030 (power to make wills), and KRS 405.390 (adoption of adults).

If Section 1 of the act has the effect of amending KRS 402.210 without referring to it, it would have had the same effect on the statutes mentioned in the remaining sections, and sections 2 through 6 therefore serve no purpose. We are disin-dined to believe that there was no legislative purpose in the addition of these sections to the bill. If we are wrong, the misconception is easily remediable by the legislature itself.

“Before a statute will be considered amended by implication by a later statute, the two statutes must be repugnant to each other and be irreconcilable, or the latter act must cover the whole subject of the earlier act.” Hallahan v. Sawyer, Ky., 390 S.W.2d 664 (decided May 18, 1965).

In Fiscal Court of Jefferson County v. City of Anchorage, Ky., (decided May 7, 1965), we held that the transfer of zoning power from cities of the sixth class to the fiscal courts necessarily carried with it all of the statutory functions theretofore exercised in that field by the legislative bodies of such cities. That was a clear case of irreconcilability. In Lincoln Bank & Trust Company v. Queenan, Ky., 344 S.W.2d 383 (1961), it was held that enactment of the Uniform Commercial Code (KRS Ch. 355) rempved, by implication, certain transactions from the operation of KRS 382.270 and 382.330. That was because the obvious intent of the new enactment was to pre-empt the field of commercial transactions.

In the Lincoln Bank & Trust Company opinion it was recognized that it would scarcely have been possible to ferret out in advance all of the myriad provisions of pre-existing law that would be affected by the act. But we do not believe that situation exists in this case. When it comes to dealing with such a subject as the age of majority, the question of marriage looms as big as an elephant, It could not be missed except on purpose. We think the legislature missed the question of matrimony for the reason that it so intended.

In the statutory law of this state there are several references to the specific age of 21 years. See, for example, KRS 271.025 (formation of corporations and ownership of stock), KRS 395.005 (qualifications of fiduciaries), KRS 423.010 (qualifications of notaries public), KRS 435.100 (statutory rape), and KRS 435.010 (seduction under promise of marriage). We cannot think the legislature intended to amend these sections by S.B. 22. So far as Section 1 (KRS 2.015) is concerned, it can apply only where the statutes do not designate age in terms of a precise number of years.

Fortunately, we are not called upon (as yet) to determine just what KRS 2.015 does cover. There are numerous statutory references to “infants,” “minors” and “adults” to which it has possible application. Cf. KRS 199.470 (petition for adoption may be filed by any “adult person”), KRS 387.020 (appointment and removal of, and settlement of accounts by, “guardians to minors”), KRS 391.020 (descent of real estate on death of an “infant” without issue), KRS 405.010, 405.020, and 405.080 (rights and duties of parent and child, in which the terms “minor child,” “dependent adult children,” and “adult person” are used), and KRS 411.150 (giving a right of action to the widow and “minor child” of a person killed by wrongful use of a deadly weapon). See also KRS 402.-080, which says that a marriage license must issue in the county in which the female resides unless she is “of full age” or a widow.

Also to be considered is the area of case law, involving such matters as the family purpose doctrine and the avoidance of contracts. It is readily apparent that there is a broad and fertile area of future litigation arising out of the vague and sweeping terminology of this statutory effort to simplify something that is not simple. It moves us to suggest that it would be very desirable for the legislature either to clarify or eliminate KRS 2.015 at the earliest opportunity.

Reversed with directions that a judgment be entered in accordance with this opinion.

      . See 1964 Journal of the Senate, pp. 56-70, 91-93, showing that Sections 2 through 6 were added after introduction of the bill.


author: WADDILL, Commissioner.

text:
    Birchel SEXTON, Appellant, v. Ina Ree SEXTON, Appellee.
    Court of Appeals of Kentucky.
    May 28, 1965.
    Paul E. Hayes, Prestonsburg, for appellant.
    W. W. Burchett, Joe P. Tackett, Pres-tonsburg, Jack L. Lewis, Paintsville, for appellee.
   WADDILL, Commissioner.

This case involves the custody of Angela Sexton, who is approximately five years of age. Subsequent to the divorce of the parties to this appeal, a change in the custody order entered in their divorce action was sought by the child’s mother, Ina Ree Sexton. Following a hearing the chancellor awarded custody to the mother and fixed certain periods when the father, Birchel Sexton, could visit the child.

On this appeal the chief contention of Birchel Sexton is that the chancellor abused a sound discretion in deciding the custody question because the testimony established that Ina Ree Sexton had indulged in immoral conduct and that her present behavior shows her to be unfit for the responsibility of properly rearing this child.

The rule which we ordinarily apply in cases of this character is stated in Babb v. Babb, Ky., 293 S.W.2d 728, thusly:

“ * * * It is the general rule, as the appellant submits, that a child of tender years should be cared for by his mother unless she is shown to be unfit for the responsibility. But the father’s rights may not be ignored. Always the welfare of the child is the chief consideration, regard being had for all the circumstances of the particular case. * * * ”

The record contains the findings of fact and rulings of law of the chancellor. It also discloses an analysis of the testimony and reasons for the conclusions reached. While there is some doubt in our minds as to whether the chancellor should have awarded the child’s custody to the mother, we are unwilling to say there was an abuse of judicial discretion.

Changes in the conditions may justify or require a modification of the order of custody at a future time.

Appellant’s other contention is that the chancellor failed to make specific findings of fact and conclusions of law. As heretofore indicated these are adequately set forth in the chancellor’s written opinion.

The judgment is affirmed.

HILL, J., not sitting.


text:
    Daniel F. CHITWOOD et al., Appellants, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellees.
    Court of Appeals of Kentucky.
    June 4, 1965.

      W. Scott Miller, W. Scott Miller, Jr., Louisville, for appellants.
    Robert F. Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Raymond F. Bossmeyer, Louisville, for appellees.
   PALMORE, Judge.

The appellants owned a 64.5-acre tract of land abutting the west side of Hurst-bourne Lane in Jefferson County. In December of 1962 the Commonwealth condemned 23.61 acres of it for the construction of Interstate Highway 64, leaving the owners a tract of 31.94 acres on the north side and two separate tracts of 2.38 acres and 6.57 acres on the south side of the new highway. The 31.94-acre and 6.57-acre remainder parcels have frontage upon and access to Hurstbourne Lane adjacent to the interchange lane- leading to and from 1-64. The 2.38-acre tract is landlocked. The owners appeal from a judgment following a jury verdict awarding them $60,-000 as the difference between the fair market value of the whole tract immediately before the taking and the fair market value of the three tracts remaining immediately thereafter. Cf. Commonwealth, Dept. of Highways v. Sherrod, Ky., 367 S.W.2d 844 (1963).

The appeal rests on two arguments, (1) that the amount of the verdict was not within the extreme limits of the valuation testimony and (2) that the trial court erred in permitting the valuation witnesses to consider the prospect of rezoning in estimating the value of the property left to the owners after the taking.

In support of the first point appellants cite Pierson v. Commonwealth, Ky., 350 S.W.2d 487, 489 (1961), and Commonwealth, Dept. of Highways v. Cardinal Hill Nursery, Ky., 380 S.W.2d 249, 253 (1964), in each of which it was held that a verdict for less than the lowest figure at which any of the witnesses estimated the value of the property taken could not be sustained. This, however, is a post-Sher-rod case in which the testimony was confined to “before” and “after” values and there was no separate valuation of the land taken. It was tried before issuance of the opinion in Commonwealth, Dept. of Highways v. Priest, Ky., 387 S.W.2d 302, 306 (1965), requiring that henceforth the jury be directed to set forth in its verdict both the before and after values and the difference. This particular verdict was as follows:

“We, the jury, find for the appellees and award them the sum of $60,000.”

The lowest difference between before and after values given by any individual witness was $60,675, which is $675 more than the amount of the verdict. Nevertheless, it was within the range of the evidence the jury was permitted to consider. For example, the Commonwealth’s witness Rietze gave before and after values of $132,500 and $67,000, and its witness Kennedy gave before and after values of $125,-000 and $64,325; it would not have been incongruous or unreasonable for the jury to rely on Kennedy’s before value of $125,-000 and Rietze’s after value of $67,000 and return a verdict of $58,000, which is $2,000 less than the amount actually awarded. We do not suggest that the jury could have taken the lowest before value given by a Commonwealth witness ($125,000) and the highest after value given by a witness for the landowners ($132,000) and awarded nothing. Our opinion is simply that in this case the jury could reasonably have found before and after values that produced the resulting award of $60,000.

The second point raises a question that was mentioned but not decided in the recent case of Tharp v. Urban Renewal and Community Development Agency, Ky., 389 S.W.2d 453 (rehearing denied April 30, 1965).

“When * * * a particular use of property is prohibited or restricted by law, but there is a reasonable probability that the prohibition or restriction will be modified or removed in the near future, the effect of such probability upon the value of the property may be taken into consideration.” 1 Nichols on Eminent Domain § 219, p. 669.
“In other words, the general rule is that present market value must ordinarily be determined by consideration only of the uses for which the land 'is adapted and for which it is available.’ The exception to this general rule is that if the land is not presently available for a particular use by reason of a zoning ordinance or other restriction imposed by law, but the evidence tends to show a ‘reasonable probability’ of a change ‘in the near future’ in the zoning ordinance or other restriction, then the effect of such probability upon the minds of purchasers generally may be taken into consideration in fixing present market value.” Long Beach City High School Dist. v. Stewart, 30 Cal.2d 763, 185 P.2d 585, 173 A.L.R. 249, 254 (1947).

In the Long Beach case the California Supreme Court held that because the zoning classification existing at the time of the condemnation had been enacted only three years before, it would have been “speculative to assume that a change in the provisions of the zoning ordinance is likely to occur.” For a similar reason (a recent refusal to reclassify) this court in the Tharp case declined to decide whether under other circumstances it would have been proper to consider prospective rezoning as a factor bearing upon the value of the property in question.

The evidence to which objection is made in this case related to the value of the remaining property fronting on Hurstbourne Lane after the taking. At the intersection of Hurstbourne Lane and 1-64 (which at this location has now been completed) a “diamond” interchange has been constructed, meaning that there is a connecting access ramp in each of the four sectors of the intersection. Witnesses testified that the highest and best use of land located adjacent to such an interchange is for commercial purposes, in view of which it is likely that the zoning authorities, recognizing the changed conditions of the property, will reclassify it for commercial use. It was further shown that on April 4, 1963, the land directly across Hurstbourne Lane from the 6.57-acre remainder tract of appellants actually was rezoned from residential to “highway service” use. Our conclusion is that there was sufficient evidence of probable reclassification in the near future to justify its consideration as a factor bearing upon the value of the property immediately after the taking. We accept as reasonable and valid the principles quoted above from Nichols and the Long Beach opinion.

When evidence has been introduced tending to show enough prospect of rezoning to affect the price a willing buyer would have paid and a willing seller would have accepted for a piece of property (either immediately before or immediately after the taking, as the case may be), a valuation witness may take that circumstance into consideration, but he may not testify what the property would be worth in the event of such rezoning, or what it would be worth for purposes inconsistent with its classification at the time of the taking. Long Beach City High School Dist. v. Stewart, supra. In this case there were one or two instances in which, through skill and persistence, counsel for the Commonwealth succeeded in slipping past the zealous guard of the trial court by eliciting a witness’s opinion as to what the property would be worth for commercial purposes. Nevertheless, in a host of admonitions, remarks, and rephrasing of questions asked by counsel, the court made it abundantly clear to the jury that the likelihood or unlikelihood of a future zoning reclassification was to be considered only insofar as it affected the fair market value of the property at the time of the taking. Perhaps no one of these various interjections stated the principle fully and accurately, but collectively they were reasonably adequate to get the right idea across to the jury. We quote representative examples as follows:

“Well, I think the jury understands, Judge Miller, what the present zoning is, and I think the jury understands that it can not be used for the purposes mentioned unless the zoning is changed. But I think under the law they may show what the circumstances are, and the jury may take into consideration whether or not there is a reasonable probability that it will be changed but that it does involve a certain element of speculation I have to agree with you. But I think under the law they may show what the conditions are and the jury may take into consideration whether or not at some future time there is a reasonable probability that it will be changed based on what has happened with reference to similar situations,” * * *
* * * * * *
“The jury will understand that at present the property is not zoned commercial. I overrule the objection, allowing the jury to take into consideration whether or not it is adaptable to be used for commercial purposes; but the jury will keep in mind that in order for it to be used for commercial purposes it would have to be rezoned, there would have to be a change in zoning classification by the proper governmental authority.”
******
“THE 'COURT: (Interrupting) Gentlemen, just a minute. The question as to the present zoning of the property being residential, the question of a change of zoning, it depends entirely on the facts and circumstances, isn’t that right, Mr. Koch?
THE WITNESS: Yes, sir.
THE COURT: They will change certain locations, they will decline to change certain locations?
THE WITNESS: Yes, sir.
THE COURT: There isn’t any certainty as to what an administrative body is going to do. Now, I think the jury understands that.”
* ⅜ * ⅝ ⅜ ⅜
“THE COURT: Judge, I’ll let you put it in by way of avowal, but I have to sustain the objection as to what its value would be as commercial because it is not now commercial. I think the jury, as I have stated a number of times, can take into consideration that there is a possibility that the zoning might be changed. Mr. Koch, does a purchaser of property take into consideration what the future potentialities of the property might be?
THE WITNESS: Yes, sir.
THE COURT: That’s the basis on which I’m admitting it.”
******
“THE COURT: (Interrupting) Mr. Koch, you didn’t listen to that question. Now, I’m going to re-state it again: What Judge Bossmeyer is asking you is that, taking into consideration that the remainder of this property which he has asked you about is adaptable for being used for commercial purposes, what in your opinion, taking that into consideration, the possibility that in the future it might be changed to commercial, now it is zoned residential, what in your opinion was the value of the remainder as of December the 3rd, 1962? Now, that’s just a simple question.”
******
“THE COURT: (Interrupting) Mr. Koch, you are again misunderstanding the question. The question is: Considering that it has a potential possibility of the zoning being changed, and it is adaptable if the zoning is changed for being used for commercial purposes, what was its value as of December the 3rd, 1962, considering all those factors ? ”

Despite a certain amount of irregularity in the testimony relating the prospects of rezoning to the value of the property immediately after the taking, we think the trial court so clearly maintained it in proper perspective that the jury could not have been misled. Hence we do not find any prejudicial error. However, in future cases witnesses must not be permitted to say or suggest what the value would be if the property were zoned differently from the classification existing at the time in question, and the jury should be admonished that the question of whether there was a reasonable probability of a zoning reclassification in the near future should be considered only to the extent of its influence, if any, upon the price a willing buyer would have paid and a willing seller would have accepted for the property immediately before (or after, as in this case) the taking.

The judgment is affirmed.


author: MILLIKEN, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Mabel ALLIE, Widow, et al., Appellees.
    Court of Appeals of Kentucky.
    June 4, 1965.

      John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., J. G. M. Robinson, Ashland, Walter Mobley, Flem-ingsburg, for appellant.
    James Adkins, Catlettsburg, Bunyon S. Wilson, Jr., Ashland, for appellees.
   MILLIKEN, Judge.

This appeal involves another highway condemnation proceeding for the construction of Interstate 64 in Boyd County. The Department of Highways concedes that there is sufficient evidence to sustain the award for the land actually taken — $2,348 for 19.79 acres — but contends that the $5,-852 allowance for damage to the remainder is excessive. It is, because it exceeds the highest valuation by any of the witnesses. The amount of the verdict must be within the range of the proof. See Pierson v. Commonwealth, Department of Highways (1961), Ky., 350 S.W.2d 487; Commonwealth, Department of Highways v. Tyree (1963), Ky., 365 S.W.2d 472; Commonwealth, Department of Highways v. Brooks (1964), Ky., 380 S.W.2d 77.

In the event of a retrial of this case attention should be paid to Commonwealth, Department of Highways v. Gearhart (1964), Ky., 383 S.W.2d 922, and Commonwealth, Department of Highways v. Robinette (1964), Ky., 380 S.W.2d 78, before testimony is offered concerning the value of any coal on the land condemned. Also, evidence as to the value placed upon the land by the property owner for tax purposes should be admitted. Commonwealth, Department of Highways v. Rankin (1960), Ky., 346 S.W.2d 714; Commonwealth, Department of Highways v. Lanter (1963), Ky., 364 S.W.2d 652. The fact that the minor children are co-owners with their mother does not keep their mother’s estimate of the value for tax purposes from being admissible in evidence.

The judgment is reversed for proceedings in accordance with Commonwealth, Department of Highways v. Sherrod (1963), Ky., 367 S.W.2d 844, which holds that there shall henceforth be no breakdown of damages into categories— damages for the land taken and damages to the remainder — in the trial of highway condemnation actions. For instructions under Sherrod principle see Commonwealth, Department of Highways v. Priest (1963), Ky., 387 S.W.2d 302.

The judgment is reversed.


author: MOREMEN, Chief Justice.

text:
    NORTON COAL CORPORATION, Appellant, v. W. E. MADDOX et al., Appellee.
    Court of Appeals of Kentucky.
    June 4, 1965.

      Lake & Cook, Hartford, for appellant.
    Otto C. Martin, Walter L. Catinna, Hartford, for appellee.
   MOREMEN, Chief Justice.

This is an appeal from a judgment of the Ohio Circuit Court in favor of appellees, W. E. Maddox and his wife, against R. N. Robards and his wife, doing business as R. N. Robards Coal Company, and against appellant, Norton Coal Corporation and its surety upon a bond given to discharge an attachment pursuant to KRS 425.305. Norton Coal Corporation has appealed.

Appellant, Norton Coal Corporation, herein called Norton, was a coal operator in Hopkins County. In addition, it was engaged in the coal brokerage business in which capacity it acted as sales agent for R. N. Robards, who was a coal operator. W. E. Maddox and his wife owned certain land in Ohio County which had an underlying No. 9 seam of coal.

In 1957, under an oral agreement, Norton transferred possession of certain mining equipment to Robards, such as tractors, bulldozers, shovels, compressors, et cetera. The agreement, it is contended, was in the nature of a parol conditional sales contract, although the testimony on this point is not convincing that it was other than a regular sale with an agreement as to installment payments of the purchase price and in the event of default that the payments should be treated as rent.

Up to this time Robards had been operating in Hopkins County and in 1958 he moved the scene of his operations to Ohio County.

On July 16, 1958, Norton sent a letter to Robards which seemed to "confirm the agreement of Robards to pay 30‡ per ton as payment on the equipment and also provided that if the equipment was returned all pay» ments would be treated as rent. This letter was not recorded (if it could have been recorded) and no mortgage or other lien was obtained on the equipment. The letter, which also set out previous rental and cash payments, appears to be only a formal recognition of the debt rather than an attempt to secure the debt by lien on the equipment.

On December 17, 1958, Maddox entered into a written lease contract with Robards for the purpose of stripping coal from the land owned by him. The lease was for a term of fifteen years or until the coal could no longer be mined profitably. The royalty was 35(⅜ per ton with a guaranteed minimum of $12,000 per year.

On January 23, 1959, the lease was recorded properly in the office of the clerk of the county court of Ohio County. It contained this provision:

“The lessors are hereby given a lien upon all machinery and equipment, material or appliances and supplies owned by the lessee and used by them on the premises herein leased to secure them in the payment of the royalties herein provided for.”

Soon after the execution and recordation of the lease Robards began to mine coal.

The operation from the beginning was not successful and within a week or so after the mining operations began, on January 30, 1959, Norton and Robards entered into another agreement. Under the terms of this agreement Robards acknowledged indebtedness to Norton for cash advances, for operating expenses and for monthly payments in arrear on equipment. On the whole this agreement also appears to be merely a formal recognition of the debt.

It is difficult, even after a most thorough search of this most unsatisfactory record, to determine the exact need, purpose, or for that matter, the content of the various agreements, both oral and written, which were entered into by Robards and Norton. It appears certain, however, that during the entire period of the mining operation Norton had been making cash advances and in general supporting Robards in his ventures and it is certain that Norton knew of the financial difficulties of Robards when, in March 1960, after Robards had terminated the mining operation a chattel mortgage was executed from Robards to Norton upon the property involved.

This suit began when Maddox sought to recover the sum of $6,394.81, the amount due for royalties for coal which had been stripped and mined from the property of Maddox. A general order of attachment was levied upon the mining equipment owned by Robards and the sheriff took possession of the equipment. While the property was in the hands of the sheriff Norton executed a bond to discharge the attachment under KRS 425.305. The court entered judgment by which the claim of Maddox was held to be a good and valid claim upon the equipment. Judgment was entered in the amount of the claim and Norton was adjudged to be liable for said judgment under the attachment bond.

The trial court in his finding of facts held among other things that:

“The close business relationship between Robards and Norton Coal Corporation, as set out in the evidence herein, creates in the Court’s mind a case of double dealing or ‘dealing under the table.’ The execution of the alleged sales contract and rental contract were dealings between Robards and Norton Coal Corporation, unrecorded and outside any knowledge of the plaintiffs.
“There is no doubt in this Court’s mind that Robards was indebted to Norton Coal Corporation, but there is a controlling doubt that it had any kind of enforceable lien upon any of the equipment used in the operation of plaintiffs’ property, and it is unbelievable that the lien set up in the lease in favor of plaintiffs was without the knowledge of the Norton Coal Corporation, when viewed in the light of their long business relation.”

We have no difficulty in reaching the same conclusion. Norton could, at any time before the equipment was moved on land belonging to Maddox, have protected itself by a formal recordation of a conditional sales contract, if that was what was intended. In such a case perhaps Maddox would not have executed the lease. In any event, the lien created by the lease was superior to any unrecorded lien concerning which Maddox had no knowledge.

On this appeal complaint is made for the first time that the trial judge erroneously identified the property. A search of the record fails to show that there was such an error. The evidence introduced fails to identify the property by serial number or otherwise so we are unable to say that the court was in error. Furthermore appellant in his brief has failed to convince us that the wrong property was seized under the order of attachment.

Judgment affirmed.


author: MONTGOMERY, Judge.

text:
    Orval T. COOPER, Appellant, v. Lucille Christine Smith SARROS et al., Appellees.
    Court of Appeals of Kentucky.
    June 4, 1965.
    James Park, Jr., Stoll, Keenon & Park, Lexington, for appellant.
    H. Wayne Riddle, Miller, Griffin & Marks, Lexington, for appellees.
   MONTGOMERY, Judge.

“Ye lawyers who live upon litigants’ fees,
And who need a good many to live at your ease,
Grave or gay, wise or witty, whate’er your degree,
Plain stuff or Queen’s Counsel, take counsel of me:
When a festive occasion your spirit unbends,
You should never forget the profession’s best friends;
So we’ll send round the wine, and a light bumper fill
To the jolly testator who makes his own will.”
Prosser, The Judicial Humorist, Page 246

This case concerns the construction of a holographic will written by a “jolly” testatrix. Lucille B. Cooper died on May IS, 1962, leaving the will dated March 22, 1962, and two codicils dated March 27, 1962, and April 25, 1962. At the time the will and codicils were written, the testatrix owned interests in three pieces of real estate: (1) an undivided one-half interest in a farm known as Hickory Hope Farm in Pulaski County; (2) an undivided one-half interest in a farm known as Farm No. 2; and (3) an undivided one-third interest in an apartment building known as 346 Harrison Avenue, Lexington.

On May 1, 1962, immediately after the execution of the will and both codicils, the decedent conveyed her interest in Farm No. 2 to her husband, appellant here. Consequently, at her death, she owned the one-half undivided interest in Hickory Hope Farm and the one-third undivided interest in the apartment house. Appellant owned the remaining undivided interests. She also left some personal property about which no contention is made.

The Chancellor held that the testatrix’s husband, appellant, took no interest in the real estate under the will and that it passed under the third paragraph of the will to Lucille Christine Smith Sarros, testatrix’s daughter by a former marriage. The question on appeal is whether appellant, the husband, received any interest in the real estate under the will and codicils.

Only two parts of her will are directly involved: the second paragraph and the second codicil. The second paragraph is as follows:

“I will, devise and bequeath to my beloved husband one-half interest in all real property known as Hickory Hope Farm in Pulaski County, Farm No. 2 on West 80 Highway, Pulaski County and 346 Harrison Avenue as agreed, Lexington, Ky., being more fully described in codicil No. 2 attached herewith LBC.”

The second codicil in its entirety follows:

“To more fully describe the agreement and full understanding between my beloved husband, Orval T. Cooper, and myself, prior to the acquisition of certain real property as described in paragraph No. 2 of my last Will, of which this codicil is a part and portion, I restate in writing that agreement which was oral in nature, but entered into in such a manner because of our mutual faith, trust and confidence in each other that said agreement would never be breached by either party.
“Said agreement was conceived upon the mutual recognition of the facts that each of the parties were approximately equal financial contribution to any mutual estate that might be created by our joint efforts. The past 19 years has proven the basic truth of that original basis for agreement, and both my husband and I have through the years been financially responsible for the creating of the estate described in paragraph 2 of this last Will.
“It was our mutual agreement that each of us, my husband and I, would have a ½ undivided interest in any property acquired. My beloved husband and I each having a child or children by prior marriage, it was our mutual desire and agreement, that by having a said ½ undivided interest in each party, which ever party predeceased the other would have an inheritance to devise and bequeath to the child or children without encumbrance by any statutory interest of the other.
“In detailing this agreement, which my beloved husband and myself have always considered to be part of our sacred marital understanding, it is my prayer and last request that its terms be honored as published herein. Its inclusion herein should not be construed as questioning my. beloved husband’s intention to carry out our mutual agreement, which for 19 years has been fully recognized and its terms resulting in the creation of any estate, though modest, at least founded upon the principles of our full understanding.”

Appellant contends that he was devised one-half of the real estate owned by the testatrix by paragraph 2 of the will. The pertinent portion of the Chancellor’s opinion denying this relief follows:

“No rule for construction of Wills is more firmly established than the rule that in arriving at testator’s intention, the Court will look to the whole Will, including codicils or will consider the Will from its four corners rather than seizing upon some isolated portion of the Will to determine Testator’s intention, without regard to other provisions of the Will. Fitschen vs. U. S. Trust Co., [313 Ky. 700] 233 S.W.2d 405.
“When the Will contains apparently inconsistent or repugnant provisions, every effort should be made to construe the provisions so that they harmonize and so that each provision in the Will will be given effect. Hager vs. Becker, [310 Ky. 340] 220 S.W.2d 839. Wiglesworth vs. Smith, [311 Ky. 366] 224 S.W.2d 177. Harmon vs. Moss, [Ky.] 342 S.W.2d 528. While the codicil will prevail where there is an irreconcilable conflict between it and the Will, yet this rule will not be applied so as to affect an alteration of the Will, unless such an intention on the part of the testator is clearly and unequivocally expressed in the codicil. Breckinridge et al vs. Breckinridge’s Executors, et al, [264 Ky. 82] 94 S.W.2d 283. Fitschen vs. U. S. Trust Co., supra.
“Applying these fundamental rules to an interpretation of the Will of testatrix, we find that the claim of plaintiff to her real property rests solely upon the provisions of paragraph 2 of the Will. Admittedly, to almost the end of this paragraph the language used is such that it would devise to plaintiff a fee interest in the properties named. But just at the end there are the words ‘as agreed’, followed by the interpolation, ‘being more fully described in Codicil No. 2 attached, L.B.C.’
“Upon an examination of Codicil 2, it is at once manifest that it was not the purpose of testatrix to devise plaintiff her interest in the real property. For in Codicil 2 testatrix recites that she and plaintiff each has a child by former marriages and that it was orally agreed between them that each would ‘have an inheritance to devise to the child or children without encumbrance by any statutory interest of the other’.
“Testatrix further states, ‘In detailing this agreement, which my beloved husband and myself have always considered to be part of our sacred marital understanding, it is my prayer and last request that its terms be honored and published herein’.
“When paragraph 2 of the Will is considered in conjunction with codicil 2 and paragraph 3 of the Will, which latter paragraph undertakes to devise the ‘residue’ to the daughter, it is apparent that testatrix intended to carry out what she refers to as her oral agreement with her husband, to devise her daughter by her former marriage her interest in the real properties which she owned.
“In construing these provisions and the language used therein by testatrix, it is important to remember that this Will was not written by one skilled in the art of drafting Wills, but by a laywoman who apparently, previous to the drafting of the Will, had made some effort to acquaint herself with the form and phraseology often used in Wills. The result of her efforts emphasizes the truth in the ancient adage, ‘A little knowledge is a dangerous thing’.
“When testatrix set out in paragraph 2 that she devised and bequeathed to her husband ‘one-half interest’ in the real properties thereafter enumerated, it was her intention and purpose thereby to divest her estate of any interest or claim which her estate would have in her husband’s interest in the property, in furtherance of her agreement with him. That testatrix believed that her estate has or might have some legal interest in or claim to her husband’s interest in the jointly owned real properties, is indicated by her language in Codicil 2: ‘Without encumbrance by any statutory interest of the other.’ ”

The Chancellor’s conclusion that the appellant took no interest in the testatrix’s real estate is correct.

Judgment affirmed.


text:
    Charles Edward RINGO, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 28, 1965.
    Charles Edward Ringo, pro se.
    Robert Matthews, Atty. Gen., Martin Glazer, Asst. Atty. Gen., for appellee.
   PALMORE, Judge.

This is an RCr 11.42 case in which the motion to vacate was overruled without a hearing. The only allegation which if proved would afford relief is that the mov-ant was denied the effective assistance of counsel in the original proceeding. It appears from the face of the record that he was first represented by employed counsel, who was released because the movant was unable to pay him. The court then appointed another attorney but the mov-ant did not want him, so the court discharged that attorney and appointed still another. At the trial the movant insisted on conducting his own defense, but the attorney last appointed remained with him and his services were available.

It is apparent from the record that the trial court leaned over backward to see that the movant had effective representation. But even if it were not, a general allegation of incompetent representation is not enough to justify a hearing. Before directing a hearing the trial court is entitled to know exactly in what respects the prisoner claims counsel failed to give him effective assistance, so that it can be determined from the face of the motion whether the facts intended to be proved amount to a constitutional violation. Cf. Lawson v. Commonwealth, Ky., 386 S.W.2d 734 (1965).

The judgment is affirmed.


author: CALVERT, Chief Justice.

text:
    H. E. LANE, Petitioner, v. The TRAVELERS INDEMNITY COMPANY, Respondent.
    No. A-10529.
    Supreme Court of Texas,
    June 2, 1965.
    Sidney Lee, Texarkana, for petitioner.
    Atchley, Russell, Hutchinson & Waldrop, Cahill Hitt, with above firm, Texarkana, for respondent.
   CALVERT, Chief Justice.

Petitioner Lane sued The Travelers Indemnity Company, respondent, on a fire insurance policy and to recover part of the premium which had been paid. The case was submitted to a jury on a number of special issues. Following return of the jury’s verdict the trial court rendered judgment that the plaintiff take nothing. The Court of Civil Appeals modified the judgment to the extent of decreeing recovery by the plaintiff of the total premium paid for the policy, and affirmed the judgment as thus modified. 383 S.W.2d 955. We reverse the judgments of the courts below and remand the case to the trial court with directions to render judgment for plaintiff Lane.

The only question for decision is whether statements in a Texas Standard Fire Insurance Policy descriptive of the property are warranties. We hold they are not. There were other issues between the parties in the trial court but they have gone out of the case.

Lane purchased the contract of fire insurance on a house situated nine miles southwest of Linden, Texas. Lane was not the owner of the property, but he had an insurable interest in it as a lienholder. A printed Texas standard fire insurance policy form was used in preparing the contract. In the section of the form titled “DESCRIPTION OF PROPERTY” are blank lines for showing number of stories, type of roof, construction, location and occupancy. The words “Dwelling-Tenant” were written on the line over “occupancy.” The house was a dwelling and it was occupied as such at all relevant times, but it was not occupied by a tenant; it was occupied by its owners, Mr. and Mrs. Floyd McGowen. It was destroyed by fire some five and one-half months after the contract was purchased. Lane sued for the amount of his debt which was less than the amount of insurance.

In answer to a special issue the jury found that “Plaintiff warranted in the -insurance contract that the property insured was to be occupied as a dwelling-tenant.” The question submitted by the issue is one of law and not of fact, and the Court of Civil Appeals properly so treated it. However, we disagree with the Court of Civil Appeals’ conclusion that the statement of occupancy was a contractual warranty and that the falsity of the statement relieves the respondent insurer of liability.

The basis on which the Court of Civil Appeals affirmed the trial court’s judgment denying recovery on the policy is difficult to determine from, its opinion. That court held that the statement in the policy that the dwelling was occupied by a tenant was a “contractual warranty,” and yet it did not hold that a breach of the warranty voided the policy. Instead, the court seems to have used another policy provision as a basis for denying recovery. The policy provision used by the court is one of several appearing under the heading “BASIC CONDITIONS,” and is titled “Conditions Suspending or Restricting Insurance.” It reads:

“Unless otherwise provided in writing added hereto, this Company shall not be liable for loss occurring (a, b, and c applicable only to Coverage F— Fire) :
(a) while the hazard is increased by any means within the knowledge and control of the insured, provided such increase in hazard is not usual and incidental to the occupancy as hereon described; or
(b) while a described building, whether intended for occupany by owner or tenant, is vacant' beyond a period of thirty consecutive days; or
(c) as a result of explosion or riot, unless fire ensue, and in that event for loss by fire only; or
(d) following a change in ownership of the insured property; or
(e) while any other stipulation or condition of this policy is being violated.”

But if the basis of the Court of Civil Appeals’ judgment is somewhat unclear, the position of respondent Travelers is not. Travelers’ position is that the statement was a warranty; that the truth of the matter warranted was a condition precedent to validity of the contract; and that the policy never became effective.

If the quoted provision of the policy is intended to relieve an insurer of liability because of mere misrepresentations, without proof and findings of materiality, it runs afoul of Art. 21.16, Vernon’s Texas Insurance Code, which provides:

“Any provision in any contract or policy of insurance issued or contracted for in this State which provides that the answers or statements made in the application for such contract or in the contract of insurance, if untrue or false, shall render the contract or policy void or voidable, shall be of no effect, and shall not constitute any defense to any suit brought upon such contract, unless it be shown upon the trial thereof that the matter or thing misrepresented was material to the risk or actually contributed to the contingency or event on which said policy became due and payable, and whether it was material and so contributed in any case shall be a question of fact to be determined by the court or jury trying such case.”

The stricture of the statute is applicable whether the exonerating policy provision be that the contract “shall be void” or only that the insurer “shall not be liable.” It follows that Travelers was not entitled to be relieved of liability in this case unless the statement that the dwelling was occupied by a tenant was a warranty.

Travelers argues that the statement cannot be a representation and it must, therefore, be a warranty. A semblance of support for the argument is found in Doyle v. Great Southern Life Ins. Co., Tex.Civ.App., 126 S.W.2d 735, 737 (1939), affirmed 136 Tex. 377, 151 S.W.2d 197 (1941), in which Couch on Insurance, 1st Edition, is quoted as defining a representation as “an oral or written statement which precedes the contract of insurance and is no part thereof, unless it be otherwise stipulated, * ⅝ * and relates to the facts necessary to enable the underwriter to form his judgment whether he will accept the risk, and at what premium.” For similar statements, see 7 Couch on Insurance, 2d Ed., §§ 35:2, 35:3, 35:4. But Couch qualifies the quoted statement in § 35 :9, 2d Ed., as follows:

“By the basic definition, the representation is not a part of the contract of insurance and therefore is not a term of the contract. This, however, does not preclude the inclusion or repetition within the policy itself of the representations. Such statements will be given effect only as representations and not as warranties when it is expressly stipulated that they are merely representations, or if it appears from the contract read as a whole that they were so intended

Moreover, Art. 21.16, quoted above, contains a clear recognition that a statement “in the contract of insurance” may be nothing more than a representation the falsity of which must be shown to have been material to the risk or to have contributed to the event on which the policy became payable before an insurer is relieved of liability.

The word “warranty” as related to contracts of insurance has been variously defined. Respondent adopts a definition taken from Texas Jurisprudence and quoted in Trinity Universal Ins. Co. v. Winter, Tex.Civ.App., 67 S.W.2d 926, 928 (1934), writ dismissed, as follows :

“ * * * generally speaking, warranties are statements, stipulations, or conditions which form a part of the contract, whereby the insured contracts as to the existence of certain facts, circumstances, or conditions, the literal truth as to which is essential to the validity of the contract.”

A definition given by Couch is substantially in accord. See 7 Couch on Insurance, 2d Ed., § 35:2. Petitioner adopts a definition found in the opinion of this Court in Phoenix Assur. Co. v. Munger Imp. Cotton-Mach. Mfg. Co., 92 Tex. 297, 49 S.W. 222, 225 (1898), as follows:

“A warranty in an insurance contract is a statement made therein by the assured, which is susceptible of no construction other than that the parties mutually intended that the policy should not be binding unless such statement be literally true.”

There is no real or substantial difference between the two definitions. Both embrace the central idea that for a statement in a policy to constitute a warranty, the parties must have intended that the policy stand or fall on the literal truth or the falsity of the statement. In addition to that idea, the second definition incorporates the rule that in determining whether a particular statement is a warranty or only a representation, the entire policy will be considered and construed to prevent a forfeiture. The rule is a well recognized one. See 12 Appleman on Insurance, § 7342; 1 Couch on Insurance, 2d Ed., § 15:95.

We adopt the view that statements in a policy of insurance may be representations, and we conclude that statements in a Texas Standard Fire Insurance Policy' descriptive of the property are representations and not warranties. Normally, statements descriptive of the property will be made orally by the applicant to the agent of the insurer before they are placed in the policy. At this stage of contractual negotiations they are clearly- representations. Their purpose is to enable the agent to form a just estimate of the risk, and to determine whether to accept or reject it and what premium will be charged if it is accepted. 7 Couch on Insurance, 2d Ed., § 35:6. When included in the policy, these statements have none of the indicia usually associated with a warranty. There is no express declaration in the policy that they are warranties. There is no provision that the policy is to be effective only if the statements are true. There is no provision that the policy shall be void if the statements are untrue. To hold that statements of this character are warranties could lead to absurd results. For example, an insurer could escape liability if a statement of occupancy was “Storage-Explosives” when in fact the property was occupied by the insured and his family as their unencumbered dwelling. Another descriptive statement in the instant policy is that the insured property is of frame construction with a composition roof. If the statement is a warranty, the insurer could escape liability by proving that the house was constructed of brick and had a sheet metal roof, even though with the actual type of construction and roof the risk was less and the premium much lower. It would be unreasonable to conclude that parties to a fire insurance contract intend its provisions to lead to such absurd results.

Moreover, another provision under the “BASIC CONDITIONS” part of the policy expressly states the circumstances- under which the policy shall be void. The provision is titled “Concealment, fraud” and reads:

“This entire policy shall be void if, whether before or after a loss, the insured has wilfully concealed or. misrepresented any material fact or circumstance concerning this insurance, or the subject thereof, or the interest of the insured therein, or in case of any fraud or false swearing by the insured relating thereto.”

The provision is the only one in the policy defining conditions which render the policy void. By the provision, a Texas Standard Fire Insurance Policy is void only if material facts or circumstances concerning the insurance or the subject of the insurance are wilfully concealed or falsely represented. The policy provisions are inconsistent if statements describing the property are held to be warranties and their falsity voids the policy without reference to their materiality. By holding the statements to be representations to which Art. 21.16 is applicable, the two provisions are made consistent and harmonious.

No useful purpose would be served by a lengthy review of the many Texas decisions dealing with warranties and representations. The principal decisions cited by respondent in support of its position are National Fire Ins. Co. v. Carter, Tex.Com.App., 257 S.W. 531, 199 S.W. 507 (1924); Fidelity Union Fire Ins. Co. v. Pruitt, Tex.Com.App., 23 S.W.2d 681 (1930); Trinity Universal Ins. Co. v. Winter, Tex.Civ.App., 67 S.W.2d 926 (1934), writ dismissed; Harris v. Allstate Ins. Co., Tex.Civ.App., 249 S.W.2d 669 (1952), writ refused, and Freeman v. Commercial Union Assurance Co., Tex.Civ.App., 317 S.W.2d 563 (1958), writ refused, n. r. e. These cases will be analyzed briefly.

In National Fire Ins. Co. v. Carter, the provision said by the court to be a warranty was a "sole ownership,” not a property description provision. In Fidelity Union Fire Ins. Co. v. Pruitt, the court assumed that the policy contained a provision stating that the building was insured “while occupied by owner and not otherwise.” In the instant case the policy contains no provision stating that the building was insured “while occupied as stated in the policy and not otherwise.” In Trinity Universal Ins. Co. v. Winter, the automobile insurance policy sued on expressly provided that the statements contained in the policy were warranties, and further provided that the policy should be void if the insured misrepresented a material fact. The statement of the motor number of the stolen automobile was incorrect. The court held only that the misrepresentation was material to the risk as a matter of law and voided the policy. Dismissal by this Court of writ of error in the case did not constitute a holding that the statement was a warranty. Affirmance by the Court of Civil Appeals of a trial court judgment for the insurer in Harris v. Allstate Ins. Co. was rested upon a conclusion that a representation that no policy of insurance on the automobile had been cancelled within a period of two years was material as a matter of law. Our refusal of writ of error, no reversible error, in Freeman v. Commercial Union Assurance Company did not constitute approval of the holding of the Court of Civil Appeals that the statement of occupancy in the fire insurance policy was a contractual warranty. There were jury findings in the case which furnished a sound basis for the judgment for the insurer. Thus all of the cited cases, are distinguishable.

The judgments of the Court of Civil Appeals and the trial court are reversed and the cause is remanded to the trial court with directions to render judgment in accord with this opinion for the plaintiff for such sum as may be due.

      . Emphasis ours throughout unless otherwise indicated.


author: PER CURIAM.

text:
    D. H. SEIGLER, Sr., Petitioner, v. Ernest SEIGLER et al., Respondents.
    No. A-10702.
    Supreme Court of Texas.
    May 12, 1965.

      Vincent Stine, Henrietta, Humphrey, Gibson & Darden, Wichita Falls, for petitioner.
    Clyde Suddath, Henrietta, Jones, Fillmore, Robinson & Lambert, Wichita Falls, for respondents.
   PER CURIAM.

This is a will contest involving the issues of testamentary capacity and undue influence. We do not agree with the statement of the Court of Civil Appeals that “the burden of proof on the whole case under the pleadings” rested upon the contestants. (386 S.W.2d 849). The burden of proof was upon the proponent (petitioner) to prove that the testator had testamentary capacity. The contestants could not properly secure the fight to open and close the argument under Rules 266 and 269, Texas Rules of Civil Procedure by voluntarily assuming the burden of proof on this issue. In order to gain such right, it would be necessary that testamentary capacity be unequivocally admitted or established as a matter of law and the issue thus removed from the case. Considering the entire record in this case, however, we are of the opinion that it is not shown that the trial court’s action in allowing the contestants .(respondents) to open and conclude the arguments to the jury amounted to such a denial of the rights of the petitioner as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. Rule 503, Texas Rules of Civil Procedure. The application for writ of error is refused, no reversible error. Denbow v. Standard Acc. Ins. Co., 143 Tex. 455, 186 S.W.2d 236.

SMITH, J., not participating.


author: SMITH, Justice.

text:
    OFFICE EMPLOYEES INTERNATIONAL UNION LOCAL 277, AFL-CIO et al., Petitioners, v. SOUTHWESTERN DRUG CORPORATION et al., Respondents.
    No. A-10341.
    Supreme Court of Texas.
    June 2, 1965.

      Sam Houston Clinton, Jr., Austin, for petitioners.
    Baker, Botts, Shepherd & Coates, James M. Neel and V. R. Burch, Jr., Houston, for respondents.
   SMITH, Justice.

On September 12, 1963, Office Employees Union Local 277, AFL-CIO, and J. B. Moss, pursuant to Rule 187, Texas Rules of Civil Procedure, filed a verified petition to take the depositions of Walter N. Kuntz and Charles E. Major, in order to perpetuate their testimony to be used in a suit which Union and Moss alleged they anticipated filing. The petition alleged that the nature of their anticipated action was one for damages in excess of one thousand ($1,000) dollars resulting from slander and defamation arising out of statements believed to have been made by Kuntz and Major “on or about August 6, 1963, and thereafter,” and “on or about August 7, 1963, and thereafter, to employees of Southwestern Drug Corporation.” It was alleged that the “persons expected to be adversely interested to your Petitioners” were Kuntz, Major and Southwestern Drug Corporation.

The parties will be designated by name as they were in the trial court. Kuntz and Major et al. pleaded that the District Court was without jurisdiction, because the subject matter was within the exclusive jurisdiction of the National Labor Relations Board.

The trial court after a hearing overruled the plea to the jurisdiction and refused to dismiss the petition. The Court granted the petition for depositions to perpetuate testimony. Kuntz and Major et al. appealed. The Union and Moss, immediately after the transcript was filed with the Clerk of the Court of Civil Appeals, moved to dismiss the appeal on the ground that the order was interlocutory in nature and not appealable. The Court of Civil Appeals overruled the motion to dismiss, holding that the order was appealable, but held that the question of the jurisdiction of the State courts had been prematurely asserted and that the jurisdictional question should be raised in the allegedly anticipated slander action. The trial court’s judgment granting the petition for depositions to perpetuate testimony was affirmed. 380 S.W.2d 927. The judgment of the Court of Civil Appeals is reversed and the cause is remanded to that court with instructions.

Two petitions for writ of error have been filed. Both applications have been granted. The petitioners, Southwestern Drug Corporation, Kuntz and Major, contend that the subject matter of the petition for depositions, and of the alleged anticipated slander action, involves a labor dispute between Local, Union 277 and Southwestern Drug Corporation and that the National Labor Relations Board has exclusive jurisdiction of the subject matter. The Union and Moss contend that a proceeding to perpetuate testimony through the taking of depositions to be used in an anticipated suit is purely an ancillary matter and nonappealable.

We have concluded that the Court of Civil Appeals was in error in failing to sustain the motion to dismiss the appeal. The appeal to that court by Southwestern Drug Corporation, Kuntz and Major was from an order of the District Court of Tarrant County, Texas, which authorized Union and Moss to take the depositions of Kuntz and Major. We have before us the question of whether or not an order granting the right to take depositions is appeal-able. Therefore, we ao not have before us the question of whether or not an order denying the right to take depositions is a final and appealable judgment. We agree with the Union and Moss that a proceeding to perpetuate testimony is not of itself an independent suit, but is in aid of and incident to an anticipated suit. We agree that such proceeding is purely an ancillary matter. It is well settled that the taking of depositions is not an end within itself but is in aid of a suit which is anticipated. The taking of depositions to perpetuate testimony is ancillary to the anticipated suit. See 34 Tex.Law Review 319; Lambert v. Texas Employers’ Ins. Ass’n, Tex.Civ.App. (1938), 121 S.W.2d 406, no wr. hist.; Ramsey v. Gardner, 154 Tex. 457, 279 S.W.2d 584 (1955); Lee v. Lee, Tex.Civ.App. (1963), 373 S.W.2d 108, wr. ref., n. r. e.

Kuntz and Major et al. contend that the order in this case grants all of the relief sought in the petition to take depositions and has all of the elements of finality, the contention being that although the court’s action was not a final judgment in the usual sense, yet it is subject to review by appeal. It is argued that Rule 187, supra, was patterned after Federal Rule 27, and that federal decisions under Rule 27 are both persuasive and directly in point in this case. The case of Mosseller v. United States, 158 F.2d 380 (2d Cir., 1946), relied upon by Kuntz and Major et al. does hold that an order authorizing the taking of a deposition to perpetuate testimony for use in an action to be subsequently commenced against the United States under “Suits in Admiralty Act” was a final order for purpose of appealability. The case is distinguishable. The question on appeal was whether the District Court had jurisdiction to authorize the taking of a deposition to perpetuate testimony for use in an action to be thereafter commenced “in the admiralty” seeking damages for personal injuries. It was the argument of the United States that the equity proceeding authorized by the statute, then in effect, could not be utilized to perpetuate testimony for use in an admiralty libel. The statute under consideration provided broadly that “any district court, upon application to it as a court of equity, may, according to the usages of chancery, direct depositions to be taken in perpetuam rei memoriam, if they relate to any matters that may be cognizable in any court of the United States.” The petitioner was asserting an affirmative claim against the United States and intended to institute a suit for personal injuries on behalf of her son. However, it appears that the petitioner was prevented from immediately filing suit by the provisions of the “Public Law 17 Act” which provided that suit could not be instituted until petitioner “had filed a claim against the United States and until either the claim had been administratively disallowed or sixty days had elapsed from the date of its filing.” Because of fear that her son would die before the time elapsed and before suit could be filed, petitioner sought an order authorizing the taking of her son’s deposition. The court held that although this was an ancillary proceeding, nevertheless, it “involved affirmative claims against the government, and not merely procedural steps looking to the eventual assertion of a claim.”

The basic procedural authority for perpetuating testimony is found in Rule 187. This rule, after its original adoption, was amended in 1957 and again in 1962. Kuntz and Major et al. contend that under Rule 187, as amended, the court’s order granting authority to take depositions now stands in the same position as an injunction order stood before the rule was amended. It is argued that depositions could be taken under Rule 187, before the amendment, upon the mere filing of an unsworn written statement of a desire to take the depositions, and that the Clerk’s action was purely ministerial, but that under the rule, as amended, a verified petition is required to be filed alleging the substance of the testimony expected to be elicited and the petitioner’s reasons for desiring to perpetuate the testimony; that notice must be served on the proposed witnesses; that a hearing must be conducted on the petition; and an order must be entered by the District Court, whereas, none of these formalities were required under the old rule. It is true that these procedural requirements for taking depositions to perpetuate testimony are more specifically stated than they were under the rule before it was amended, but we decline tc hold that the present rule has the effect of rendering an order entered by the District Court granting the right to take depositions to perpetuate testimony equivalent to a mandatory injunction. The changes in the rule have not converted a proceeding ancillary in character to one in-junctive in character. Therefore, the rule announced in the case of Dallas Joint Stock Land Bank v. State ex rel. Cobb, 135 Tex. 25, 137 S.W.2d 993 (1940), wherein it was held that the order involved was, in effect, a mandatory injunction and had all of the elements of finality, has no application.

The rule states the procedural steps to be taken by a person who files a petition to take the deposition of a witness. The rule is silent, however, as to whether or not a party adversely affected by an order thereafter entered by the Court may appeal. We find no other statute or rule which makes interlocutory orders of the nature of the one here under review appealable. It follows that the appeal should have been dismissed by the Court of Civil Appeals for want of jurisdiction. See Henderson v. Shell Oil Co., 143 Tex. 142, 182 S.W.2d 994 (1944).

The Southwestern Drug Corporation, Kuntz and Major in their petition for writ of error present the single contention that the Court of Civil Appeals erred in its failure “to reverse the order of the District Court and dismiss respondents’ petition for depositions, because the subject matter of this proceeding is within the exclusive jurisdiction of the National Labor Relations Board.” Since we have held that the order involved in this case is non-appealable, this Court is without jurisdiction to consider this question.

The judgment of the Court of Civil Appeals is reversed and the cause is remanded to that court with instructions to enter its order dismissing the appeal.


author: BELCHER, Commissioner.

text:
    Ex parte Cecil JOHNSON, Appellant.
    No. 38398.
    Court of Criminal Appeals of Texas.
    June 9, 1965.
    See also Tex.Cr.App., 391 S.W.2d 409.

      Saul W. Baernstein (on appeal), Dallas, for appellant.
    Alford H. Flanagan, Dist. Atty., Tully R. Florey, III, County Atty., Mount Pleasant, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

This is an appeal from an order of the .District Court of Titus County wherein the trial court denied an application for writ of habeas corpus to discharge the appellant from a peace bond which was required and set after a hearing on a complaint in the justice court.

The complaint before the magistrate was as follows:

“I, Traylor Russell, do solemnly swear that I have good reason to believe, and do believe, that Cecil Johnson is about to commit an offense against my person to-wit:
On the 11th day of February, 1965 the said Cecil Johnson threatened to shoot Traylor Russell with a 38-special pistol, and came to the office of Traylor Russell in the City of Mt. Pleasant for said purpose against the peace and dignity of the state.”

His order requiring a peace bond reads:

“THIS DAY, this cause, wherein the said Cecil Johnson is charged with threatening to commit an offense against Traylor Russell by shooting him, came on to be heard before me, and the said Cecil Johnson being present, both parties announced ready for trial, and having heard the proof as to the accusation filed herein, I am satisfied therefrom that there is just reason to apprehend that the offense, to-wit:
‘On the 11th day of February, 1965 the said Cecil Johnson threatened to shoot Traylor Russell with a 38-special pistol, and came to the office of Traylor Russell in the City of Mt. Pleasant for said purpose against the peace and dignity of the state.’
was intended to be committed by the said Cecil Johnson.
I, therefore, order that the said Cecil Johnson enter into bond in the sum of $5,000, conditioned that he will not commit such offense, and that he will keep the peace toward the said Traylor Russell and toward all others for the period of one (1) year from the date of such bond, and upon failure to give such bond the said Defendant Cecil Johnson is committed to the custody of the Sheriff of Titus County, Texas who will forthwith commit him to the jail of said county, there to be safely kept for the period of one (1) year from this date or until he shall give such bond. And I further ORDER and ADJUDGE that the State of Texas do have and recover of the Defendant Cecil Johnson the costs of this proceeding, for which execution will issue.”

An attorney was appointed to represent the appellant at the hearing of the application for the writ in the district court.

At the hearing the state introduced the order of the justice of the peace, sitting as a magistrate, requiring the appellant to make a $5,000 peace bond, and also the complaint, arrest warrant, and order of commitment, which appear to be regular and sufficient.

The testimony of the state at the hearing on the writ reveals the following: The appellant was served with a citation issued in a suit filed against him. While carrying a loaded .38 pistol, he stated that he was going to the office of Traylor Russell and kill him and was going to “put a bullet between his “eyes”; that when the appellant entered the reception room of Traylor Russell’s office with the pistol, force was used to get him (appellant) out. Shortly thereafter the appellant was arrested on a warrant issued on a complaint filed in the justice court alleging that he threatened to shoot Traylor Russell with a .38 pistol and went to his office for that purpose. Upon a hearing on the complaint the next morning, the justice of the peace, sitting as a magistrate, entered an order requiring appellant to make a peace bond.

The appellant testified that after being served with a citation by an officer, he went to the office of Traylor Russell carrying a .38 pistol, for the purpose of “straightening this whole mess out once and for all”, and if Traylor Russell attacked him he was going to shoot him; that at the insistence of a person who entered the office with him, he left and shortly thereafter stopped at. a nearby store and placed the pistol under a counter. He further testified that he had no desire to kill Traylor Russell.

From the record, it is concluded that the court was authorized to find that the appellant, on February 11, 1965, threatened to shoot Traylor Russell with a pistol and went to his office for that purpose and that there was just reason to apprehend that he seriously intended to commit said offense. Art. 80, C.C.P.

Further, upon a consideration of all the evidence, we conclude that the court did not abuse its discretion in ordering that the appellant be retained and confined m jail until he enters into a $5,000 bond to keep the peace, as provided by Art. 85, C.C.P.

The order of the magistrate, after a hearing before him that the appellant be confined in j'ail unless he made a $5,00u peace bond does not offend against the constitutional provision of the right of trial by jury, as the appellant contends. Ex parte Garner, 93 Tex.Cr.R. 179, 246 S.W. 371.

No error appears in the proceedings, therefore, the appellant is remanded as ordered in the court’s judgment requiring him to give bond or be confined in jail.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Ex parte Cecil JOHNSON.
    No. 38416.
    Court of Criminal Appeals of Texas.
    June 9, 1965.
    Saul W. Baerstein, Dallas, for petitioner.
    Alford H. Flanagan, Dist. Atty., Tully R. Florey, III, County Atty., Mount Pleasant, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

By this application for writ of habeas corpus, the relator seeks his discharge from the orders of the justice of the peace and the district court of Titus County, requiring that he make a $5,000 peace bond, and he also seeks his release from confinement in the Veterans’ Administration Hospital.

The relief sought from the orders requiring a peace bond is controlled by the disposition of 'Cause No. 38,398, in this Court, 391 S.W.2d 407 this day decided.

The order of commitment to the Veterans’ Administration Hospital has expired, hence this matter is now moot.

The relief prayed for herein is denied.

Opinion approved by the Court.


author: DICE, Commissioner.

text:
    Benjamin F. ROYAL, Appellant, v. The STATE of Texas, Appellee.
    No. 37874.
    Court of Criminal Appeals of Texas.
    May 26, 1965.
    Rehearing Denied June 26, 1965.
    See, also, 391 S.W.2d 411.
    J. L. Wilcox, Freeport, for appellant.
    Tom Kenyon, Dist. Atty., J. Albert Pruett, Jr., Asst. Dist. Atty., Angleton, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is under Art. 567b, Vernon’s Ann.P.C., for the giving of a worthless check in an amount of less than $50, with punishment assessed at one hundred fifty days in jail and a fine of $125.

Appellant was charged in the County Court of Brazoria County, in Causes Nos. 9582 and 9584, with the giving of two worthless checks, each in an amount of less than $50.

The complaint and information in Cause No. 9582 charged appellant with giving a worthless check in the sum of $20.35 to “Jack Reid Appliances” and the complaint and information in Cause No. 9584 charged him with giving a worthless check in the sum of $25 to “Weiner’s Department Store.”

Both cases were jointly tried before the same jury, with separate verdicts being returned, finding appellant guilty in each case as charged.

This is an appeal from the conviction in Cause No. 9582.

At the trial, the state’s witness Wayne Erskine, manager of the Jack Reid appliance store in the city of Freeport, testified that on August 12, 1964, the appellant came into the store and purchased a radio, giving as payment therefor state’s exhibit #1, which was a check dated August 12, 1964, drawn on the First Freeport National Bank, payable to the order of Jack Reid Appliances in the sum of $20.35 and signed “Benjamin F. Royal.” He further testified. that the check was never paid and that he later received the radio back from the police.

It was shown by the testimony of Mary Gaidosik, supervisor of bookkeeping at the Freeport National Bank, that on the dates of August 12 and 13 of the year 1964, there was no account in the bank in the name of Benjamin F. Royal and had the check been presented in due course to the bank for payment it would not have been paid. Her testimony rendered unnecessary any proof of presentment to the bank for payment. 54 Tex.Jur.2d 92, Sec. 77; Watson v. State, 154 Tex.Cr.R. 616, 229 S.W.2d 621.

Appellant did not testify or offer any evidence in his behalf.

The evidence is sufficient to support the conviction.

Appellant’s sole contention on appeal is that he was denied a fair and impartial trial by being compelled to go to trial upon the two separate informations charging him with giving the worthless checks, with both cases being heard and considered by the jury at the same time.

While the record reflects that appellant was tried upon the two separate informa-tions in Causes Nos. 9582 and 9584 at the same time, with separate verdicts of guilty being returned by the jury in each case, there is no showing that he made any objection to such procedure. To the contrary, the record shows that when called upon to plead to the two informations, appellant announced ready for trial in each case.

Ex parte Quintanilla, 151 Tex.Cr.R. 328, 207 S,W.2d 377, cited by appellant, is not here applicable because in that case the relator was tried, over his objection, in four separate cases before the same jury and at the same time. Here, no objection was made by appellant to his trial upon the two separate informations before the same jury at the same time. It is apparent that appellant waived his right to a separate trial in each case. This he could do. Art. 11, Vernon’s Ann.C.C.P.

The judgment is affirmed.

Opinion approved by the court.


text:
    Benjamin F. ROYAL, Appellant, v. The STATE of Texas, Appellee.
    No. 37875.
    Court of Criminal Appeals of Texas.
    May 26, 1965.
    Rehearing Denied June 26, 1965.

      J. L. Wilcox, Freeport, for appellant.
    Tom Kenyon, Dist. Atty., J. Albert Pru-ett, Jr., Asst.- Dist. Atty., Angleton, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is under Art. 567b, Vernon’s Ann.P.C., for the giving of a worthless check in an amount less than $50, with punishment assessed at one hundred fifty days in jail and a fine of $125.

The appeal is from a conviction in Cause No. 9584 on the docket of the county court and is a companion case to Royal v. State, No. 37,874, Tex.Cr.App., 391 S.W.2d 410, affirming appellant’s conviction in said court in Cause No. 9582 for a like offense.

As was pointed out in our opinion affirming the conviction in Royal v. State, supra, both cases were jointly tried before the same jury without an objection from appellant, and he thereby waived any complaint to such proceeding.

The complaint and information in the instant case charged that appellant gave a worthless check in the sum of $25 to “Wei-ner’s Department Store.”

Ronald Farish, called as a witness by the state, testified that he was assistant manager of Weiner’s Department Store in the city of Freeport; that on the 13th day of August, 1964, the appellant came into the store and gave a check (state’s exhibit #2) for either a lay-away or some other merchandise. The check was never paid. State’s exhibit #2, introduced in evidence by the state, was a check dated August 13, 1964, at Freeport, Texas, drawn on the Freeport National Bank in the sum of $25, payable to the order of “Weiner’s Dept_ Store” and signed “Benjamin F. Royal.”

It was shown by the testimony of the witness Mary Gaidosik, supervisor of bookkeeping at the Freeport National Bank, that on such date appellant had no account in the bank under the name of “Benjamin F. Royal” or any similar name and had the check been presented in due course to the bank for payment it would not have been paid. Her testimony rendered unnecessary any proof of presentment of the check to the bank for payment. 54 Tex.Jur.2d 92, Sec. 77; Watson v. State, 154 Tex.Cr.R. 616, 229 S.W.2d 621.

Appellant did not testify or offer any evidence in his behalf.

The evidence being sufficient to support the conviction and no reversible error appearing, the judgment is affirmed.

Opinion approved by the court.


text:
    Ex parte Melvin Lane POWERS.
    No. 37776.
    Court of Criminal Appeals of Texas.
    April 28, 1965.
    Rehearing Denied June 23, 1965.
    See also Tex.Cr.App., 391 S.W.2d 414.
    Percy Foreman, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

This is an appeal from an order entered in a habeas corpus proceeding by Honorable Wendell A. Odom, Judge of Criminal District Court No. 2 of Harris County, remanding appellant to custody for extradition to the State of Florida.

At the hearing, the respondent introduced in evidence the executive warrant issued by Governor John Connally, of this state, which authorized the arrest of appellant and his delivery to the agents of the State of Florida for return to that state. The warrant recites that, it has been made known to Governor Connally that appellant stands charged by affidavit and warrant before the proper authorities in the State of Florida with the crime of murder in the first degree; that he has taken refuge in this state; and that demand has been made for his arrest and delivery to the agents of the State of Florida for return to that state.

Being regular on its face, the executive warrant made out a prima facie case for extradition. Ex parte Hoover, 298 S.W.2d 579.

The affidavit and warrant upon which appellant stands charged with the crime in Justice of Peace Court for the Third District of Dade County, Florida, were introduced in evidence by appellant. The affidavit, signed by Detective George M. Ba-logh, omitting the formal parts, states:

“that on the 29th day of June, A.D. 1964, in the County and District aforesaid one Melvin Lane Powers DID THEN AND THERE: in and upon one JACQUES MOSSLER, in the peace of God, then and there being feloniously, wilfully and of his malice aforethought did make an assault, in that the said Melvin Lane Powers, with a certain deadly weapon, to wit: a knife and other object, which he, the said defendant then and there had and held in and upon the said Jacques Mossier, a mortal wound did inflict, of which mortal wound the said Jacques Mossier died, and that the said Melvin Lane Powers then and there did kill and murder, contrary to the statute in such cases made and provided and against the peace and dignity of the State of Florida.”

Appellant’s sole contention is that the affidavit does not legally charge him with the crime in the State of Florida and for such reason he cannot be extradited to that state.

It is appellant’s contention that the affidavit does not state sufficient facts upon which to base a finding of probable cause for the issuance of any warrant, as required by the Supreme Court of the United States in Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503, and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723.

It should be noted that these decisions by the Supreme Court involved the sufficiency of affidavits for the issuance of a warrant of arrest (Giordenello) and a search warrant by a magistrate (Aguilar), and not the issuance of executive warrants, in extradition.

The question is whether appellant is substantially charged with the crime as provided in Sec. 3 of Art. 1008a, V.A.C. C.P.

In extradition cases it is held that, unless clearly void, the validity of an affidavit or indictment upon which demand for extradition is based and its sufficiency as a criminal pleading will be left to the courts of the demanding state and not of this state. Ex parte Strom, 168 Tex.Cr.R. 130, 324 S.W.2d 224; Ex parte Gesek, 164 Tex.Cr.R. 652, 302 S.W.2d 417.

The affidavit in the instant case is not void, and we hold the same sufficient to substantially charge appellant with the crime and to support his extradition to the State of Florida.

The judgment remanding appellant to custody is affirmed.

Opinion approved by the court.


text:
    Ex parte Melvin Lane POWERS.
    No. 37597.
    Court of Criminal Appeals of Texas.
    April 28, 1965.
    Rehearing Denied June 23, 1965.
    See also Tex.Cr.App., 391 S.W.2d 413.

      Percy Foreman, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant, being charged in the State of Florida with the crime of murder in the first degree and in custody of the sheriff of Harris County under a fugitive warrant issued by the justice of the peace of Precinct #1 of Harris County, presented his application for writ of habeas corpus to Honorable Sam W. Davis, judge of the Criminal District Court #5 of Harris County, in which he sought his release from custody by either an order of discharge or order fixing bail.

This is an appeal from a judgment entered by Judge Davis after a hearing which, among other things, denied appellant’s application for discharge and bail.

It is shown from the records in Cause No. 37,776, styled Ex parte Melvin Lane Powers, now pending before this court, that, subsequent to entry of the judgment denying the application for discharge, a demand for appellant’s extradition to the State of Florida has been made by the governor of that state, and that appellant is now in custody of the sheriff of Harris County under and by virtue of an executive warrant issued by Governor John Connally, of this state, commanding his arrest and delivery to the agent of the State of Florida for return to that state.

In view of the extradition proceedings and appellant’s present restraint under the executive warrant issued therein, the questions presented in this appeal from the court’s judgment denying appellant’s application for discharge have become moot.

Accordingly, the appeal is dismissed.

Opinion approved by the court.