text:
    The ANNIE GARDNER FOUNDATION, etc., et al., Appellants, v. Emily GARDNER, etc., et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 29, 1963.
    Rehearing Denied March 13, 1964.
    Far land Robbins, Mayfield, James W. Stites, S. Russell Smith, Edwin H. Perry, Louisville, Malcolm R. Boaz, Mayfield, for appellants.

      Charles I. Dawson, Edwin F. Schaeffer, Jr., Louisville, Louis Cox, Frankfort, L. M. Tipton Reed, Mayfield, David R. Reed, Paducah, for appellees.
   MOREMEN, Judge.

This is an appeal from an order in the Graves Circuit' Court sustaining appellees’ motion to abate and dismiss an action for injunctive relief upon the ground that the same parties were already litigating the same issues in a will contest suit.

Ed Gardner died on June 4, 1958 at the age of 87, a resident of Mayfield. His will was probated June 12, 1958. The entire estate was devised and bequeathed to the First National Bank of Mayfield to hold in trust. Practically all the income was to be distributed to the Annie Gardner Foundation, a charitable organization. From that time the estate has been in continuous litigation. In order better to understand the issues here, a short summation of that litigation is required.

Ed Gardner had no children and his wife, Annie Gardner, had predeceased him. At the date of Ed Gardner’s death, only one brother was living, Bunk Gardner, Sr., who thereafter died on October 27, 1960. Also living at the time of Ed Gardner’s death was Bunk Gardner, Jr., the only son of Bunk Gardner, Sr. Emily Gardner is the wife of Bunk Gardner, Jr. They have two infant children, Bunk Stephen and Anne, both of whom were alive at the time of the death of their great-uncle, Ed Gardner.

In January 1959, the First National Bank of Mayfield, as executor of the will of Ed Gardner, paid Bunk Gardner, Sr. and Bunk Gardner, Jr. $50,000, which they agreed to accept as “full, final and complete settlement of all claims, causes of action, or demands of any and every kind, which said Bunk Gardner, Jr. and/or Bunk Gardner, 'Sr. have or might have against the Estate of Ed Gardner, Deceased, by reason of being related to the said Ed Gardner,” Shortly after execution of the release, Bunk Gardner, Sr. filed a suit in the Graves Circuit Court to contest the will of Ed Gardner. The circuit court held that both the will and the release were void. On appeal to this court, the judgment was reversed with directions that the appeal from the order of the county court probating the will be dismissed. First National Bank of Mayfield v. Gardner, Ky., 348 S.W.2d 839. Other cases which have dealt with various phases of this litigation are: Commonwealth ex rel. Ferguson v. Gardner (1959) Ky., 327 S.W.2d 947; First National Bank of Mayfield v. Stahr (1959) Ky., 329 S.W.2d 582; First National Bank of Mayfield v. Gardner, (1959) Ky., 330 S.W.2d 409; and First National Bank of Mayfield v. Lisanby (1962) Ky., 354 S.W.2d 32.

On February 13, 1962, Emily Gardner (Mrs. Bunk Gardner, Jr.) as guardian for her two infant children, filed another will contest action in the Graves Circuit Court. In this suit she alleged that the documents admitted to probate by the Graves County Court as the last will and testament of Ed Gardner were not properly executed. In this suit she took the position that the document of release, discussed above, executed by Bunk Gardner, Sr. and Bunk Gardner, Jr. simply operated as a surrender and disclaimer of any interest which either of the signers had or might subsequently have in the estate of Ed Gardner. She further alleged:

“By reason of the facts stated in Paragraph 5 hereof, and because of the surrender and disclaimer of their grandfather, Bunk Gardner, Sr., and their father, Bunk Gardner, Jr., of their respective interests in the estate of Ed Gardner, deceased, the infants, Bunk Stephen Gardner and Anne Gardner, descendants of Bunk Gardner, Sr. (his grandchildren) became the next in line under KRS 391.010 to succeed to the estate of Ed Gardner should it be determined that he died intestate, they being the next of kin to Ed Gardner, excluding their grandfather, Bunk Gardner, Sr., and their father, Bunk Gardner, Jr., and they are entitled through their guardian, the appellant herein, to challenge and contest the validity of the probated documents referred to in Paragraph 3 hereof as the last will of Ed Gardner, deceased.”

The Annie Gardner Foundation filed an answer in which, inter alia, were a plea of res judicata and a plea of release, and by counterclaim it stated that they were entitled to a perpetual injunction enjoining Emily Gardner, as guardian, the children, their heirs, executors and assigns from prosecuting the suit or in the future making any claims to any part of the estate of Ed Gardner. The prayer of the counterclaim asked for a perpetual injunction. The First National Bank of Mayfield also filed an answer in which, among other things; it pled estoppel as to the maintenance of the action. Hereafter in this opinion we will refer to the above suit as the “will contest suit.”

Appellants, the Annie Gardner Foundation, Etc., on August 20, 1962, filed a separate complaint in the Graves Circuit Court in which they sought a permanent mandatory injunction requiring Emily Gardner to dismiss forthwith the will contest suit above described, which was instituted by her on February 13, 1962, in her capacity as guardian for Bunk Stephen Gardner and Anne Gardner.

As grounds for injunctive relief, appellants alleged that they were being vexed and harassed with a groundless law suit brought in violation of the release signed by Bunk Gardner, Sr. and Bunk Gardner, Jr. To show immediate irreparable injury, appellants alleged that the contest suit is: (1) interfering unreasonably with the orderly administration of the Ed Gardner estate, (2) wrongfully depriving persons intended to be benefited in the will — the poor and needy of Graves County, (3) causing the estate to be decimated by federal income taxes and litigation expenses for which there can be no recovery at law because of the contestants’ insolvency. Hereafter this suit will be called the “injunction suit.”

The appellees moved to abate and dismiss this injunction suit. The circuit court sustained the motion and dismissed the injunction suit on the ground that the issues in the injunction suit were substantially the same as those in the will contest suit previously filed by Emily Gardner.

Appellants suggest that the basic question on this appeal is whether the grandchildren of Bunk Gardner, Sr. are the next of kin and legal heirs of Ed Gardner under the intestacy laws of this state and, as such, have a right to contest the validity of Ed Gardner’s will, notwithstanding the fact that both their father and their grandfather signed an agreement in which they accepted and agreed to the terms and provisions of the Ed Gardner will, which agreement was subsequently found to be binding by this court. Appellants, therefore, insist that an injunction should be issued forever enjoining relatives of the late Ed Gardner from unreasonably interfering with the orderly administration of the estate by the harassment and vexation of groundless law suits. On the other hand, appellees stress the fact that the suit brought by Emily Gardner, as guardian, offered under the terms of the pleadings the opportunity for appellants to obtain the same relief prayed for in the second suit and the circuit court, therefore, properly abated the second action.

The rule of abatement is that a second action based on the same cause will generally be abated where there is a prior action pending between the same parties involving substantially the same subject matter and in which prior action the rights of the parties may be adjudged. See Proctor v. Peoples Bank of Morehead, 283 Ky. 100, 140 S.W.2d 667. The reason for the existence' of the defense of abatement is the idea that no one -should be harassed by two actions for the same cause and by the same parties. Conley v. Marshall, 304 Ky. 745, 202 S.W.2d 382. A plea in abatement is a technical and dilatory plea and therefore should not be allowed unless the pleader clearly shows that his situation comes within the reason for the rule.

For the plea of abatement to obtain it is essential that the issue be between substantially the same parties and that these parties appear in the same capacity and represent the same interests in each action.

In some jurisdictions abatement will lie only if the second action is brought by the same plaintiff or plaintiffs against the same defendant or defendants. Crane, Ex’r v. Burns, 235 Ind. 583, 135 N.E.2d 832. In Kentucky, however, the plea of abatement is allowed even where the parties are reversed. Himler Coal Co. v. Kirk, 210 Ky. 28, 275 S.W. 371. In that case the coal company' proposed to build a railway line from its mine. This line crossed the corner of a tract of land to which the landowner claimed the coal company had no right-of-way. The coal company filed a petition in equity to enjoin the landowner from interfering with the construction of the railway across the corner of the land. While this action was still pending the landowner brought a separate suit against the coal company charging that it had entered upon his land without right and to his damage in the sum of $20,000. The coal company answered and, among other things, pled the pendency of the first action in abatement. The court held that the coal company should not be required to litigate in two actions pending at the same time in the same court the question of whether it had the proper right-of-way to build the railroad and held that a demurrer to the plea in abatement should have been overruled and the hearing of the second case should have been postponed until the question of the rights of the parties bad been determined in the first case.

It is evident that the posture of the parties is of little significance if the judgment on the merits in the prior action will necessarily determine the issue presented in the subsequent suit. This requirement was plainly stated in the recent case of Riddle v. Howard, Ky., 357 S.W.2d 705, where it is written:

“However, it is an essential condition for the application of the rule that the first action shall afford the parties in the second action an adequate and complete opportunity for the adjudication of their rights. So, where the pendency of a suit or proceeding in one court is relied on to defeat or abate a second suit or action in another court of concurrent jurisdiction, it must relate to the same or substantially the same cause of action, and the parties and the relief or remedy sought in the first action must be the same or the equivalent. The rule of abatement does not apply where the second suit has merely a close connection with the other action.”

With the rules in mind that before an abatement is meet, it must appear that (1) the parties in the second suit are substantially the same as the parties in the prior suit, and (2) these parties will be afforded an adequate and complete opportunity for the adjudication of their rights and for obtaining the remedy they desired in the first suit, we return to the facts heretofore stated in the opinion.

Although the parties vary in some degree between those in the will contest suit and the injunction suit, this variance is not substantial enough to deny the application of the doctrine of abatement. Many of the parties were of a technical nature and joined because they were acting in various fiduciary capacities. In all these suits, however, the real parties of interest were the immediate kin of Ed Gardner, deceased. Bunk Gardner, Sr. and Bunk Gardner, Jr. and all those who may be acting as personal representatives had been barred by previous litigation. There remain only, with any degree of close consanguinity, the two children who are here as wards of Emily Gardner. The parties may not be identical in name, but the interests represented are the same.

In connection with the second phase of the rule above stated, it seems to us to be a matter of little importance, whether an injunction perpetually enjoining the prosecution of further will contest cases be issued in the first action or the second action, if any will ever be issued. In the prior will contest case the answer challenged the right of the infants to maintain the action for various reasons and the counterclaim asked that the plaintiffs be perpetually enjoined from prosecuting the will contest or making any claim to the estate of Ed Gardner in the future. This issue should be tried out in that case. The second injunction suit was entirely unnecessary.

Judgment affirmed.


source: Caselaw Access Project

author: CLAY, Commissioner.

license: Public Domain

text:
    Clifford JASPER, d/b/a Jasper Iron & Metal Co., et al., Appellants, v. The COMMONWEALTH of Kentucky et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 11, 1964.

      Luker & Luker, J. Milton Luker, London, for appellants.
    John B. Breckinridge, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., Don Duff, Dept, of Highways, Paul E. Hunley, Dept, of Highways, Frankfort, for appellees.
   CLAY, Commissioner.

This suit questions the constitutionality of the “Junk Yard Act” (KRS 177.905 to 177.990). The law, attacked on many grounds, was upheld by the circuit court.

The statute provides in substance as follows. The operation of an “automobile, vehicle or machinery junkyard” within 2,000 feet of the center line of any road is prohibited unless a permit is obtained from the Department of Highways. The conduct of business within the restricted area without a permit is declared to be a public nuisance. A permit may only be issued if the Commissioner of Highways is satisfied that the junk yard is effectively hidden from the view of motorists by natural or artificial screening (topography, fences, trees, plants, etc.). Where compliance by way of screening would cause hardship in the opinion of the Commissioner, the junk yard may be maintained until June 14, 1964. The Commissioner is authorized to make rules and regulations and to' administer the Act. Any administrative decision, order or ruling is subject to judicial review. The permit fee is $50 and fines are imposed for violation of the law.

The first contention is that the preamble of the Act assumes the existence of circumstances which only apply to a small number of junk yards. The preamble is not the law. It is not necessary for its enactment, nor are its provisions binding. City of Elizabethtown v. Cralle, Ky., 317 S.W.2d 184. We cannot test the constitutionality of the Act by its preamble. See 11 Am.Jur. Constitutional Law, sections 142, 143, 144. In any event, the preamble recites other considerations which encompass all such junk yards.

It is next contended the legislature may not declare a legitimate business “a public nuisance”. The Act does not purport to do so. It so characterizes the business only when conducted in a particular area. What may not be a nuisance in one place may be such in another. See Brumley v. Mary Gail Coal Co., Ky., 246 S.W.2d 148.

It may be observed that it was unnecessary for the legislature to describe the prohibited activity as a “nuisance”. This had no effect on the validity of the Act one way or another. The issue is whether the legislature may properly prohibit the operation of unscreened junk yards near Kentucky roadways. We will now examine that question, which is the principal one involved.

The obvious purpose of this Act is to enhance the scenic beauty of our roadways by prohibiting the maintenance of unsightly vehicle graveyards within the view of travellers thereon. While there may be a public safety interest promoted, the principal objective is based upon aesthetic considerations. Though it has been held that such considerations are not sufficient to warrant the invocation of the police power, in our opinion the public welfare is not so limited. In Turner v. Peters, Ky., 327 S.W.2d 958, we recognized there could be a legitimate public interest in businesses which “offend the esthetics of the community”. Other cases holding that such considerations justify the exercise of the police power are Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27; State ex rel. Civello v. City of New Orleans, 154 La. 271, 97 So. 440, 33 A.L.R. 260; Walnut & Quince Streets Corporation v. Mills, 303 Pa. 25, 154 A. 29.

A recent case on this point is People v. Stover, 12 N.Y.2d 462, 240 N.Y.S.2d 734, 191 N.E.2d 272. The Court- of Appeals of New York examined at length the development of the law on the question of whether aesthetic considerations will support the exercise of the police power. The reader is referred to that opinion for a thorough discussion of the problem and the citation of numerous authorities. The New York court, in line with modern thinking on the subject and for reasons we consider sound, held that such considerations^ may justify the exercise of such power,

The police power is as broad and comprehensive as the demands of society make necessary. Farley v. Graney, W.Va., 119 S.E.2d 833. It must keep pace with the changing concepts of public welfare. Certainly the legislature could take cognizance of the developing importance and extensive improvements of Kentucky’s highway system, of the actual commercial as well as aesthetic value of our scenic beauty, and of the patently offensive character of vehicle graveyards in close proximity to such highways. We may take judicial notice of these things. Kohler v. Benckart, Ky., 252 S.W.2d 854.

The right to conduct a business is subordinate to the police power of the state reasonably exercised in the public interest. California State Auto. Ass’n. Inter-Ins. Bureau v. Maloney, 341 U.S. 105, 71 S.Ct. 601, 95 L.Ed. 788; Brachey v. Maupin, 277 Ky. 467, 126 S.W.2d 881, 121 A.L.R. 969; Bischoff v. Hennessy, Ky., 251 S.W.2d 582. The real question is whether in the light of current conditions' the Act constitutes a reasonable regulation of appellants’ business in the furtherance of a substantial public purpose.

The policy to be followed in promoting the public welfare is a legislative matter. If there is a legitimate basis for the policy, the courts may not question it. 11 Am.Jur., Constitutional Law, section 139 (page 815); Workmen’s Compensation Board v. Abbott, 212 Ky. 123, 278 S.W. 533, 47 A.L.R. 789. In our opinion there was a real and substantial justification for adoption of some regulative policy with respect to the conduct of this kind of business enterprise. Our only other inquiry is whether the form of regulation was reasonable.' Since it goes no further than to effectuate an authentic public purpose, we cannot find it arbitrary or unreasonable. Consequently we cannot say that there has been a violation of appellants’ constitutional rights.

It is next contended the Act delegates legislative and judicial power to the Commissioner of Highways. It may be noted'that the powers of the Commissioner relate to the issuing of permits which in effect grant exceptions to the general prohibition of the Act. This is similar to permitting nonconforming uses under zoning regulations. The “lack of standards” argument is made. We have recently considered this problem in Butler v. United Cerebral Palsy of Northern Ky., Inc., Ky., 352 S.W.2d 203, and Commonwealth v. Associated Industries of Kentucky, Ky., 370 S.W.2d 584. In the light of those cases it is apparent the authority of the Commissioner is adequately defined and restricted to safeguard appellants from the exercise of arbitrary action.

It is last insisted that the criminal penalties of the Act are excessive, in violation of section 17 of the Kentucky Constitution. We do not find them so. The legislature certainly has the right to make its prohibitions effective. Any violations of the law almost certainly would be wilful. Fines only are imposed by way of penalty. These fines are not excessive in view of the nature of the offense and the necessity for requiring compliance with the Act.

The judgment is affirmed.

      . City of Norris v. Bradford, 204 Tenn. 319, 321 S.W.2d 543. (City ordinance — front yard fences.)

      . While appellants suggest the statute violates amendments 5 and 14 of the United States Constitution and section 13 of the Kentucky Constitution, it would appear that the Act, if invalid, would violate section 2 of tke Constitution which provides: “Absolute and arbitrary power over the lives, liberty and property of free men exists nowhere in a republic, not even in the largest majority.”


author: CULLEN, Commissioner.

text:
    Luther B. WEAVER, Appellant, v. George H. CAUDILL, Appellee.
    Court of Appeals of Kentucky.
    Feb. 14, 1964.

      Allen & Clontz, Mt. Vernon, for appellant.
    Pat Rankin, Stanford, for appellee.
   CULLEN, Commissioner.

Luther Weaver’s claim for damages against George Caudill, growing out of an automobile collision, was submitted to a jury which returned a verdict in favor of Caudill. Weaver appeals from the judgment entered on the verdict, claiming error in the instructions.

Caudill’s automobile, traveling behind Weaver’s, collided with Weaver’s when Weaver was undertaking to pass a farm tractor and wagon proceeding in the same direction. Weaver’s evidence was that he had turned into the left lane to pass and had been in that lane for a substantial distance and time when Caudill’s car struck him from the rear. Caudill’s evidence was that Weaver had turned abruptly in front of him, without warning, as Caudill was about to pass the Weaver car. A simple issue thus was presented.

Weaver (appellant) maintains that the instruction given by the court in effect stated that Weaver was guilty of contributory negligence as a matter of law (because he could not see behind him) and permitted the jury to find against Caudill only on a last clear chance theory. We do not so construe the instruction.

It is provided in KRS 189.380(1) that no person shall turn a vehicle from a direct course on a highway unless and until such movement can be made with reasonable safety. The instruction authorized recovery by Weaver if the jury believed that Weaver had turned into the left lane and was driving therein a sufficient distance ahead of Caudill for the latter, in the exercise of ordinary care, to have avoided colliding with Weaver. We think this properly presented the issue of whether Weaver had made his movement with reasonable safety.

Appellant maintains that the issue of proximate cause should have been submitted to the jury but in our opinion there was no real issue of proximate cause in this case.

The judgment is affirmed.


author: WALKER, Justice.

text:
    TRADERS & GENERAL INSURANCE CO., Petitioner, v. Billie Jean PARKER et al., Respondents.
    No. A-9554.
    Supreme Court of Texas.
    Jan. 22, 1964.
    Rehearing Denied March 11, 1964.
    Turner & Seaberry, Eastland, for petitioner.
    Waggoner Carr, Atty. Gen., Fred D. Ward, Asst. Atty. Gen., Alfred M. Scott, Austin, McMahon, Smart, Sprain, Wilson & Camp, Abilene, for respondents.
   WALKER, Justice.

This is a workmen’s compensation case. Henry E. Ford, who was regularly employed by Coleman County Electric Cooperative, Inc., lost his life while blasting an oil well slush pit for Maxwell Drilling Company, hereinafter referred to as Maxwell. Traders & General Insurance Company was the Cooperative’s compensation insurance carrier, and Maxwell had a similar policy issued by Texas Employers’ Insurance Association. Mrs. Billie Jean Parker brought this suit against the two insurance companies and the Industrial Accident Board to recover death benefits under the Workmen’s Compensation Act. She claims to be the adopted daughter of Henry E. Ford by estoppel, and alleged that he was an employee of and engaged in the course of his employment for the Cooperative and Maxwell at the time of his death.

All defendants denied that Mrs. Parker was the adopted daughter of Ford. The Industrial Accident Board sought a recovery for the benefit of the Second-Injury Fund, alleging that Ford died in the course of his employment for the Cooperative and/ or Maxwell. Each of the insurance carriers took the position that Ford was an independent contractor, or in the alternative was an employee of the company insured by the other carrier, at the time of his death. The jury found that Mrs. Parker was not the adopted daughter of Ford. It also found that Ford was not working as an independent contractor at the time of his death, but was an employee of the Cooperative and a borrowed employee of Maxwell and acting within the scope of his employment for each. Upon motion by Texas Employers, the trial court disregarded the findings that Ford was a borrowed employee of Maxwell and engaged in such employment at the time of his death. Judgment was entered that Mrs. Parker take nothing on her claim, and that the Industrial Accident Board recover $1,500.00 from Traders & General. The Court of Civil Appeals affirmed. Tex.Civ.App., 366 S.W.2d 107.

Ford had been employed by the Cooperative for a number of years, and he worked regularly eight hours a day for five days each week, Monday through Friday. While the company had men on stand-by duty over the week end, Ford was not one of them. He was required to and did work for the Cooperative only forty hours a week. On Saturday, September 11, 1954, S. C. McKinley, who was a tool pusher for Maxwell, telephoned Leo B. Brandt, who was line superintendent for the Cooperative, to inquire about having some blasting done for a slush pit on a location in Coleman County. Brandt told McKinley that the Cooperative did not do blasting for other concerns. He also advised that some of the employees did such work on the side and promised to talk with them and ascertain whether they would drill and shoot the pit.

Brandt called M. D. Snow, who was another regular employee of the Cooperative, and asked if he wanted to do the work. Snow replied that he did provided that he could get someone to help him. Snow then got in touch with Ford, who agreed to help with the blasting. Upon being advised that Snow and Ford were willing to do the work, Brandt arranged for McKinley to meet them at the Cooperative’s warehouse. Snow and Ford followed McKinley to the land on which Maxwell was drilling an oil well. After showing them where the pit was to be located and telling them that it should be about four feet deep, McKinley left. Ford and Snow did some work that day, and returned to the pit on Sunday. McKinley was also on the premises, but did not go near the place where Ford and Snow were working. Ford was killed when rock and debris hurled by a dynamite blast fell on and dented the top of the truck cab in which he was sitting, thereby crushing his skull.

The equipment used by the men in doing the drilling and blasting, including the truck, air compressor, air hammer, electric cable, dynamite and caps, was owned by the Cooperative. It was the custom of the company to allow its employees to use such equipment when they did blasting for others. Although the workmen fixed the prices for ■their labor, they were not paid directly by the person for whom the work was done. Instead they turned their charges in to the Cooperative, which withheld income tax and social security and paid the balance to the men. The company then billed the person for whom the blasting was done separately for the labor charges turned in by the workmen and for the use of its equipment. That is the way the charges were handled with Maxwell in the present instance. The Cooperative made no profit on this or other similar transactions.

Ford and Snow had many years of blasting experience. Maxwell arranged for them to do a job that required their special skill and which could be "completed in a relatively brief period of'time. They used equipment belonging to their regular employer, fixed their own compensation, and determined the hours when they would work. All of the details of the work were left entirely to their judgment, and there is no evidence suggesting that Maxwell had the right of, or ever attempted to exercise, control over them other than to point out the location of the pit and direct that it be four feet in depth. We agree with the courts below that the record fails as a matter of law to show that Ford was an employee of Maxwell, borrowed or otherwise. See Insurors Indemnity & Ins. Co. v. Pridgen, 148 Tex. 219, 223 S.W.2d 217; Industrial Indemnity Exchange v. Southard, 138 Tex. 531, 160 S.W.2d 905; Shannon v. Western Indemnity Co., Tex.Com.App., 257 S.W. 522.

In support of its contention that Ford and Snow were acting in the course of their employment for the Cooperative, the Industrial Accident Board relies primarily on Insurors Indemnity & Ins. Co. v. Pridgen, supra; Goodwin v. Wilhelm Steel Const. Co., Tex.Civ.App., 311 S.W.2d 510 (wr. ref.); Texas Employers’ Ins. Ass’n v. Brooks, Tex.Civ.App., 266 S.W.2d 260 (wr. ref. n. r. e.); and Polanco v. Austin Bridge Co., Tex.Civ.App., 348 S.W.2d 728 (no writ). Equipment was there leased by its owner on a “fully operated” basis, and it was held that the operator remained within the scope of his general employment by the lessor while using such equipment for the benefit of the lessee. Mrs. Parker also cites Texas Employers’ Ins. Ass’n v. Harrison, Tex.Civ.App., 207 S.W.2d 168 (wr. ref. n. r. e.), and Consolidated Underwriters v. Duncan, Tex.Civ.App., 282 S.W.2d 888 (wr. ref. n. r. e.), in which a regular employee was injured or lost his life while doing something that could fairly be regarded as within the scope of a special mission or service which his employer instructed him to perform. None of these cases has any application here.

The Cooperative did not agree to furnish its equipment with someone to operate the same, and did not require, direct or even suggest that its employees undertake the work. It would have had no right to substitute other employees after McKinley made his arrangements with Ford and Snow. Brandt merely asked Snow if the latter wanted the work, and there is nothing in the record to indicate that such an inquiry amounted to an order. The company then had nothing further to do with the operation except to supply the equipment, pay the men the charges they fixed for their labor, and bill Maxwell therefor. In view of the other facts disclosed by the record, these circumstances do not warrant an inference that Ford and Snow did the blasting in the course of their employment by the Cooperative. The billing for the labor was done purely as an accommodation to the men, and they were allowed to use the equipment primarily for their own benefit. Even if it could be said that the Cooperative permitted its equipment to be used in this way for the purpose of promoting better public relations, that would constitute nothing more than a scintilla of evidence that the men were engaged in or about the furtherance of the affairs of their employer while doing the blasting. According to the undisputed testimony, Ford and Snow simply agreed to do a job on their own time and at their own prices, and were to handle the work as they considered proper without any supervision or control from the Cooperative. The company might have withdrawn its equipment at any time and brought the operation to an end, but the record does not indicate that it had the legal right, and it certainly made no effort, to exercise any control over Ford and Snow in the details of the work. In our opinion there is no evidence to support the finding that Ford received his fatal injuries while acting within the scope of his employment by the Cooperative.

The conclusions stated above require that judgment be rendered in favor of both insurance carriers, and it is unnecessary to consider the other points of error brought forward by Mrs. Parker. The judgment of the Court of Civil Appeals is modified so as to provide that the judgment of the trial court, in so far as it awards a recovery to the Industrial Accident Board, be reversed and that judgment be rendered that the Board take nothing. As so modified, the judgment of the Court of Civil Appeals is affirmed.


author: PER CURIAM.

text:
    SHELL OIL COMPANY, Petitioner, v. Joe Henry REINHART, Respondent.
    No. A-9890.
    Supreme Court of Texas.
    Feb. 12, 1964.
    Rehearing Denied March 11, 1964.
    Turpin, Kerr, Smith & Dyer and Max N. Osborn, Midland, for petitioner.
    John J. Watts and Thomas A. Sneed, Odessa, for respondent.
   PER CURIAM.

The opinion of the Court of Civil Appeals is reported in 371 S.W.2d 722.

The trial court’s judgment awarded Rein-hart a recovery of damages for personal injuries against Shell Oil Company. Rein-hart was a general employee of Cody & Teague Transport, Inc., engaged by Shell to perform certain services in removing paraffin accumulations in its oil wells. Rein-hart was injured while working with Faulkner, Shell’s employee, in putting a solvent into one of the wells.

One of Shell’s defenses to the suit was that Reinhart was a loaned employee of Shell at the time of his injury, and that inasmuch as Shell was a subscriber under the Workmen’s Compensation Act, it could not be held to respond to Reinhart in damages even if it were negligent; that Rein-hart’s only remedy was to proceed against Shell’s insurer for benefits under the Workmen’s Compensation Law.

The trial court submitted a special issue to the jury inquiring whether Reinhart was a loaned employee of Shell, and the jury found that he was. The trial judge disregarded the jury’s answer, reciting that he found “as a matter of law, that the plaintiff was not a special or loaned employee.”

In its first point of error in its brief in the Court of Civil Appeals, Shell asserted that the jury’s finding that Reinhart was a loaned employee had support in the evidence and that'the trial court erred in not granting its motion for judgment on the verdict. It prayed that the judgment of the trial court.be reversed and that judgment he rendered in its favor. Alternatively, it prayed, because of other asserted errors, that the judgment of the trial court be reversed and the cause be remanded for a new trial.

The Court of Civil Appeals expressly declined to pass on'Shell’s first point. That court reversed the judgment of the trial court because of conflicts in the jury’s answers to various issues, and for other reasons, and remanded the cause for retrial.

Only Shell has filed an application for writ of error. • By its application Shell seeks a reversal of the judgments of the courts below and a rendition of judgment in its favor on several grounds, the first of which is the same as that presented in its first point of error in the Court of Civil Appeals. If Shell is correct in asserting that there is in the record evidence of probative force supporting the jury’s finding that Reinhart was its loaned employee at the time of his injury, it is entitled to the relief it seeks; but we have concluded that it is not correct in that assertion.

We see no need to analyze the evidence in detail; a summary will suffice for purposes of this opinion.

Cody & Teague was the owner of special equipment for heating oil and pumping it into oil wells to dissolve paraffin accumulations. A commercial solvent, highly inflammable in nature, is also useful in dissolving the paraffin. Shell entered into a written contract with Cody & Teague to dissolve the paraffin in some of its wells. The contract, although appearing in the record, was excluded as evidence at trial. 'Reinhart and McWhorter -were sent by Cody & Teague with the special equipment to the work site on Shell’s lease where they were met by Faulkner, Shell’s pumper. Treament of one well had been completed by pumping the solvent, furnished by Shell, and hot oil into the well. Solvent was being pumped into a second well when it backed up out of a hose into which it was being poured, caught fire and burned Reinhart. At the time of the accident Reinhart was holding the hose and Faulkner was pouring the solvent into the hose. The hose and the pump being used in the operation were owned by Cody & Teague.

The trial court defined the term “special or loaned employee” as used in the charge, and neither party complains of the definition. According to the definition a “special or loaned employee” is one who, “though in the general employ of another company, is turned over to a second company” to assist the second company in the performance of its employment and in such work “becomes subject to the control, supervision and direction of the second company to whom he is turned over, concerning all the details of the particular work being performed.”

Shell called three witnesses to testify with respect to the operation. Their testimony, in summary, is that Cody & Teague was ’ employed as an independent contractor to perform the entire operation of putting the commercial solvent and hot oil into Shell’s wells; that Shell neither had any right of control of the manner in which the work was done, nor did it exercise any through Faulkner or otherwise; that Shell simply purchased and furnished the solvent to Cody & Teague for use by McWhorter and Reinhart; that at the direction of Mc-Whorter, Faulkner was assisting Reinhart in putting the solvent in the well at the time of the accident. It is clear that this testimony, standing alone, negatives the legal conclusion that Reinhart was a borrowed employee of Shell at the time of his injury.

But Shell argues that the testimony of Reinhart, quoted at some length in the opinion of the Court of Civil Appeals, will support the jury finding that he was a loaned employee of Shell. Reinhart’s testimony, fairly interpreted and summarized, is that Cody & Teague was employed only to put hot oil into Shell’s wells; that putting the solvent into the wells was an entirely separate preliminary operation to be performed by Shell and not by Cody & Teague; that when a pump to be used in the operation failed to pick up the solvent from a drum, Faulkner requested him (Reinhart) to assist in injecting the solvent by pouring it into the hose leading to the pump and to the well; that it was while thus working for Faulkner and under his direction that the injury occurred.

There is nothing in Reinhart’s testimony to indicate that he ‘'“’was turned over" to Shell or its employee, Faulkner, by Cody & Teague. His testimony shows only that Faulkner encountered some difficulty in performing his own duties for Shell and that he called for and was receiving assistance from Reinhart at the time of the accident. The legal relationship of Rein-hart to Shell, based on the testimony of Reinhart in the record before us, appears to be that of a volunteer, with the rights and duties of the parties determined by whether Reinhart was assisting Faulkner as an accommodation to him or to expedite the work of his own employer, Cody & Teague. See Mayton v. Texas & P. R. Co., 63 Tex. 77; Eason v. S. & E. T. Ry. Co., 65 Tex. 577; Bonner v. Bryant, 79 Tex. 540, 15 S.W. 491; Nobles v. Texas Indemnity Ins. Co., Tex.Com.App., 24 S.W.2d 367; 16 T.L.R. 416. But however that may be, under the court’s charge the testimony of Reinhart does not support a finding of a relationship of loaned employee.

Shell’s other points of error do not present valid reasons, on the record before us, for reversing the judgments of the courts below and rendering judgment th'at Rein-hart take nothing.

The application for writ of error is “Refused. No Reversible Error.” ■ Rule 483, Texas Rules of Civil Procedure.


author: WOODLEY, Presiding Judge.

text:
    Gus WITTING, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 36185.
    Court of Criminal Appeals of Texas.
    Feb. 26, 1964.
    Nicholas & Barrera by Roy R. Barrera, Moses Goldberg, San Antonio, for appellant.
    , Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The appeal is from a conviction with punishment assessed at two years for violation of Art. 567b, Vernon’s Ann.P.C., commonly known as the hot check law.

The indictment alleged, and the court’s charge required the jury to find, in order to convict, that the appellant obtained mohair of the value of $5,046.90 by drawing and delivering to W. 'L. McGinley a check in that amount with intent to defraud McGinley, knowing that he did not have sufficient funds in the drawee bank.

The evidence reflects that the mohair was delivered on June 25, 1960, 12 days before the check set out in the indictment was dated and delivered.

It is evident that the mohair was not procured by the delivery of the check as charged in the indictment.

The state does not seek affirmance of the conviction because of the variance between the allegations in the indictment and the proof. Nesbit v. State, Tex.Cr.App. 374 S.W.2d 666; Norman v. State, Tex.Cr.App., 338 S.W.2d 714.

The judgment is reversed and the cause is remanded.


text:
    Ex parte James M. BUSHNELL.
    No. 36767.
    Court of Criminal Appeals of Texas.
    Feb. 26, 1964.
    James M. Bushnell, pro se.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

By petition for habeas corpus the petitioner renews his attack upon his sentence of not less than 5 years nor more than 35 years for robbery in Cause No. 4496, in the District Court of Orange County, on June 10, 1944.

A number of petitions for habeas corpus attacking said conviction have been presented to this Court and denied.

The judgment of this Court denying one of such petitions without a hearing was reversed by the Supreme Court of the United States and remanded to this Court with directions to grant petitioner a hearing, citing Uveges v. Pennsylvania, 335 U.S. 437, 69 S.Ct. 184, 93 L.Ed. 127; Cash v. Culver, 358 U.S. 633, 79 S.Ct. 432, 3 L.Ed.2d 557; McNeal v. Culver, 365 U.S. 109, 81 S.Ct. 413, 5 L.Ed.2d 445.

Pursuant to such directions, this Court requested the present Judge of the 128th Judicial District Court to conduct a hearing.

The record of the evidence adduced at the hearing was considered by this Court and the conclusion was reached that the petitioner had not been deprived of due process of law by the trial judge’s refusal or failure to appoint counsel to defend him, or by the use of his confession as evidence against him. See Ex parte Bushnell, Tex.Cr.App., 353 S.W.2d 438.

Our holding as to the failure to appoint counsel was, we believe, consistent with the Supreme Court’s opinion in Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595. However, subsequent to our disposition of petitioner’s former petition for habeas corpus, the Supreme Court overruled Betts v. Brady and the opinion of said Court in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, supports the petitioner’s contention that his conviction is void because he was indigent and the trial court failed to appoint counsel to defend him and he did not understandingly waive his right to counsel.

The petition for writ of habeas corpus is granted; the petitioner is ordered released from the penitentiary and delivered to the custody of the Sheriff of Orange County, Texas, to answer the indictment in Cause No. 4496 in the 128th District Court of Orange County.


text:
    Robert SHERRILL et al., Appellants, v. The STATE of Texas, Appellee.
    No. 36573.
    Court of Criminal Appeals of Texas.
    Feb. 26, 1964.
    Don Gladden, Dan W. Lane, Fort Worth, for appellants.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

This is an appeal from a judgment forfeiting an appearance bond in the sum of $500.

Judgment nisi was entered m County Court at Law No. 2 of Lubbock County on July 29, 1963. Citation having been issued and served upon the Surety Don Gladden, final judgment was rendered on September 24, 1963, reciting that the State had “introduced the necessary and proper evidence to show cause for forfeiture of said appearance bond.”

The Surety, Don Gladden filed notice of appeal on October IS, 1963, and appeal bond was approved and filed.

The sole point of error presented by the appellant in his brief is the contention that the County Court at Law No. 2 of Lubbock County was without jurisdiction to forfeit the bail bond because it was conditioned upon the principal’s appearance before the Honorable County Court No. 1 of Lubbock County, a non-existent court.

We observe that the appellant has apparently overlooked the fact that since the creation of the first County Court at Law for Lubbock County the County Court has not had jurisdiction of criminal cases.

No statement of facts has been filed.

The transcript was filed in this Court on November 18, 1963. Appellant’s brief was not filed until February 12, 1964.

Art. 866, C.C.P. provides that in appeals from bond forfeitures the proceedings shall be regulated by the same rules that govern civil actions where an appeal is taken.

Texas Rule of Civil Procedure No. 414 relates to Briefs, one of the requirements being that the appellant shall file three copies of his brief in the Court of Civil Appeals within 30 days after the filing of the transcript and statement of facts, if any. This statute has not been complied with.

An appeal from a judgment for the state in a suit on a forfeited bail bond will be dismissed where briefs have not been filed in the trial court and in the Court of Criminal Appeals in compliance with the rules governing civil cases. Heiman v. State, 70 Tex.Cr.R. 480, 158 S.W. 276; Hebert v. State, Tex.Cr.App., 255 S.W.2d 201.

The appeal is dismissed.


author: McDonald, judge.

text:
    Floyd THIGPEN, Appellant, v. The STATE of Texas, Appellee.
    No. 36626.
    Court of Criminal Appeals of Texas.
    Feb. 26, 1964.
    No attorney of record on appeal, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Edward N. Shaw, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The appellant was convicted of the primary offense of Burglary, and the jury further found that he had been convicted of two prior felony offenses which were alleged for enhancement purposes, under the provisions of Article 63, Vernon’s Ann.P.C. The sentence, life imprisonment in the State Penitentiary.

The appellant, his counsel, and the counsel for the State stipulated that the appellant was the same person who had been convicted of the two prior felonies alleged in the indictment for enhancement purposes. It was further stipulated that there was a final conviction of each felony offense alleged before the commission of the next offense alleged in chronological order.

Houston Police Officers E. P. Rivera and Donald C. Dudley testified that they went to the vicinity of the Askew Drug Store at 2436 McKinney Avenue, in Houston, Harris County, Texas, on February 15, 1963, because the radio dispatcher announced that a burglar was reported in that building. This was about 2:15 A.M. Officer Rivera testified that he saw' appellant, Floyd Thigpen, come out of a window of the drug store building and start running away. Officer Rivera chased appellant about thirty feet, caught him, and handcuffed him. Appellant had a pair of men’s socks on his hands, and inside the window from which he had left the building, there was a zipper-type handbag containing assorted bottles of whiskey.

The manager of the drug store, Joseph Wheeler, testified that he was notified at 3:00 A.M., February 15th, that the drug store had been burglarized. He went to the drug store and found the officers there with appellant. Inside a broken window to the drug store, he found a brick on the floor, apparently used to break the window. He was given half-pint bottles of whiskey, which had been on the shelves of the store when he closed at 11:00 P.M. the night before, from the zipper bag. He testified that some cigarettes and liquor which were not found in the bag were also missing, and about $120.00 worth was never recovered. The store manager further testified that he had not given appellant or anyone else permission to enter the store after he closed it at 11:00 P.M. the night before.

Appellant adduced no testimony.

There are no formal bills of exception. There were no requests for special charges and no exceptions to the charge to the jury. Appellant’s counsel has not favored us with a brief.

Five informal bills of exception appearing in the statement of facts reflect that the appellant made numerous objections to the introduction of testimony and evidence, for the reason that the appellant was not taken before a magistrate immediately after his arrest and, consequently, was deprived of constitutional rights. While we do not find that the record shows appellant was not taken before a magistrate after his arrest, assuming that he was not, no error is shown. Beeland v. State, 149 Tex.Cr.App. 272, 193 S.W.2d 687; Campbell v. State, Tex.Cr.App., 358 S.W.2d 376.

The evidence is sufficient to support the jury's verdict of guilty in the primary offense of burglary, and the finding that appellant was previously convicted of two felonies less than capital set forth in the indictment on which the judgments have become final against him is fully supported by proper stipulation.

No reversible error appearing, the judgment is affirmed.


author: DICE, Commissioner. BELCHER, Judge.

text:
    Fay William BONNER, Appellant, v. The STATE of Texas, Appellee.

      No. 36374.
    Court of Criminal Appeals of Texas.
    Jan. 8, 1964.
    Rehearing Denied Feb. 12, 1964.
    Second Motion for Rehearing Denied March 11, 1964.

      C. C. Divine, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Gene' D. Miles, Asst. Dist. Attys., Houston, and. -Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for burglary; the punishment, enhanced under Art. 63, Vernon’s Ann.P.C., by reason of four prior convictions for felonies less than capital, life imprisonment.

The state’s evidence shows that the state’s witness Edgar Hall and his wife lived in a house at 8211 Mendez, in the city of Houston. On the night in question, while Hall and his wife were away from home, a neighbor, Marvin Monzingo, saw the lights come on in the Hall residence and observed the appellant moving around in the kitchen. Monzingo proceeded across the street to a neighbor’s house and, after talking to the neighbor, the two went to the Hall premises. As they approached the side of the house they observed a screen off of a window which was open. They proceeded to shine •a-flashlight through the .window into a bedroom and observed the appellant sitting on a bed with a mixmaster between his legs. When they asked him what he was doing, he replied, “Nothing.” They then left and the police were called. While they were waiting for the police to come, both appellant and his wife were seen to go from the Hall residence toward their house next door. At such time, appellant’s wife was carrying a bundle. Thereafter, the officers arrived and placed appellant under arrest. It was shown that he did not have the consent of Hall to break and enter the house and that the windows and doors of the house were locked by Hall and his wife when they left the premises prior to the night in question. It was also shown that when the Halls returned home three days later they found a mixmaster and coffee pot on the floor in the bedroom, and, later, two of their bedspreads were seen in a bedroom of appellant’s home:

Proof was made of the four prior alleged ¡.convictions by the introduction in evidence of certain duly authenticated records of the Texas Prison System and comparison of fingerprints in the manner approved by this court in Roberts v. State, 164 Tex.Cr.R. 537, 301 S.W.2d 154.

Testifying as a witness in his own behalf, appellant admitted entering the house on the night in question but gave as an explanation that his wife had gone into the house and brought to their residence a bundle of chattels, including a mixer and coffee pot, and that he had gone to the Hall house and entered through the open window to return the articles. Appellant swore that he had no intention to steal anything. He also admitted the four prior alleged convictions.

The jury by their verdict rejected appellant’s testimony, and we find the evidence sufficient to sustain their verdict.

Under the decisions of this court, the very act of breaking and entering a house in the nighttime raises a presumption that it is done with intent to steal. Sikes v. State, 166 Tex.Cr.R. 257, 312 S.W.2d 524.

In submitting the issue of appellant’s guilt to the jury, the court charged the jury, in substance, that if they found the appellant guilty of the alleged burglary and further found that he had been previously convicted of the four felonies less than capital, alleged in the indictment, they would find him guilty as charged, and in such event the form of their verdict would be:

“We, the Jury, find the defendant guilty as charged in the indictment, and that he has previously been convicted of four felonies less than capital, which said convictions had become final.”

The court further instructed the jury that If they had a reasonable doubt as to appellant’s guilt of the burglary, as charged in the indictment, to find him not guilty.

The jury returned the verdict, set out in the court’s charge, finding appellant guilty •of the primary offense of burglary and that he had been previously finally convicted of the four felonies less than capital.

Appellant complains that, under the court’s charge, the jury were not permitted to find him guilty only of the primary offense and assess his punishment at confinement in the penitentiary for a term of years of not less than two nor more than twelve.

Under the court’s charge, the jury, before convicting appellant, were required to find not only that he was guilty of the primary offense but that he had been previously convicted of the four alleged felony offenses. The jury could not, under the court’s instructions, have convicted appellant upon a finding that he was guilty of the primary offense and that he had not been previously convicted of the four prior alleged offenses.

The charge given by the court was more favorable to appellant than if it had authorized the jury to find him guilty only of the primary offense. Appellant is therefore in no position to complain. Punchard v. State, 142 Tex.Cr.R. 531, 154 S.W.2d 648; Handy v. State, 160 Tex.Cr.R. 258, 268 S.W.2d 182; Leal v. State, Tex.Cr.App., 332 S.W.2d 729.

Complaint is made to the court’s ac-. tion in permitting the state’s witness Rex Fullerton to identify a fingerprint card (state’s exhibit #5) as fingerprints which he took of appellant, and admitting the same in evidence, on the ground that at such time appellant was under arrest and was forced to give testimony against himself. In Mendez v. State, Tex.Cr.App., 362 S.W.2d 841, a similar claim of incrimination by submitting to the taking of fingerprints was overruled by this court. We find no merit in the.-contention.

Complaint is also made to the court’s action in sustaining the state’s objection to the proffered testimony of appellant’s wife, on the ground that she was incompetent, being also charged as a principal in the commission of the burglary. We find no error in the court’s action, as the record shows that appellant’s wife had been separately indicted for the burglary and that she had been convicted and assessed punishment of three years in the penitentiary, probated. Under the provisions of Art. 711, Vernon’s Ann.C.C.P., she was an incompetent witness on behalf of appellant. Freyre v. State, 163 Tex.Cr.R. 315, 291 S.W.2d 321.

Appellant s remaining complaint is to the court’s refusal to declare a mistrial when the prosecution, on cross-examination of appellant, asked “ * * * if in 1933 you were convicted,” which question ryas by state’s counsel withdrawn upon objection being made and not answered by appellant. Under the record, the court’s refusal to grant a mistrial does not present reversible error.

Finding the evidence sufficient to support the conviction and no reversible error appearing, the judgment is af&rmed.

Opinion approved by the Court.

ON APPELLANT’S MOTION FOR REHEARING

BELCHER, Judge.

Appellant re-urges his complaint that the trial court erred in refusing to admit the testimony of his wife who was also charged as a principal in the commission of the primary offense of burglary for which he was herein convicted on the ground that she could not be called by him as a defense witness.

The evidence shows that appellant and wife were indicted for the same offense of burglary. On the same date but before appellant’s trial began in this case, his wife was convicted for the burglary, punishment was assessed at three years and she was placed on probation.

In considering similar facts where the wife was under a suspended sentence this Court held that until the prosecution was dismissed she could not be called as a defense witness by her husband. Howell v. State, 109 Tex.Cr.R. 42, 2 S.W.2d 861. A defendant’s wife while on probation would be in the same position as appellant’s wife in the Howell case, supra.

The motion for rehearing is overruled.

Opinion approved by the Court.


author: MORRISON, Judge.

text:
    Joseph A. TETRAULT, Appellant, v. The STATE of Texas, Appellee.
    No. 36340.
    Court of Criminal Appeals of Texas.
    Feb. 5, 1964.
    Rehearing Denied March 11, 1964.

      Joe J. Johnson, Jr., Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., Albert F. Fick, Jr., Asst. Dist. Atty., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is murder without malice under the terms of Art. 802c Vernon’s Ann. P.C.; the punishment, two years confinement in the Department of Corrections.

The record has now been perfected; our ■prior opinion is withdrawn, and this appeal will be now considered on the merits.

The witness Long testified that while on liis way home from Dallas on the night in question, he observed a 1955 Ford ahead of him, that both he and the Ford turned north on North Main Street in Euless, that the Ford “was weaving from one side of the road to the other” in front of him, that the Ford proceeded for a time over in the left hand lane which was occupied by oncoming traffic, that it forced one automobile off the road, almost hit a telephone pole and then went off the right hand- side of the road and ran into a group of children who were walking “alongside the road. ⅜ * * in the borrow ditch” entirely off the road. He stated that he saw no indication of the Ford’s brakes being applied prior to the time it hit the child. He testified further that when he was able to bring his automobile to a halt, he returned to the scene and found a boy of approximately ten years of age lying bloody and unmoving on the ground and that some, time later the boy was carried away in a squad car. He identified appellant as the driver of the Ford, stated that appellant had alcohol on his breath, and expressed the opinion based from the manner in which the Ford was driven and his conduct at the scene that appellant was intoxicated.

It was stipulated that the boy named in the indictment met his death as the result of injuries received in the accident. Two of the boys who were with the one who was killed testified that they were walking single file facing the oncoming traffic “right at the edge of the gravel” which formed the shoulder of the asphalt highway when the deceased was hit, and that they avoided injury by jumping over to the fence which bordered the roadway.

A sample of appellant’s blood was taken by a doctor with appellant’s consent and was forwarded to the Department of Public Safety in Austin, and the results of tests run on such sample showed that it contained 28/100ths of 1% of alcohol by weight, which according to the testimony of the toxicologist was indicative of intoxication.

Officers Smith and Wall of the Euless Police Department testified that they arrived upon the scene soon after the accident, made several measurements which showed skid marks made by appellant’s automobile, and from such marks gave their opinion that the deceased had been off the paved portion of the highway on the shoulder at the time he was struck.

Appellant’s confession was reduced to writing by an Assistant District Attorney the next morning and was introduced in evidence. It recited that appellant and a co-worker had each bought a half pint of vodka as they got off from work on the night in question, that appellant drank the entire contents of his bottle and half of that of his companion before he started home, and was almost there “when I ran into a little boy walking at the side of the road.”

Appellant testifying in his own behalf admitted that the “statements in that statement” were true and said that he did not see the children until he heard a “thud”, at which time he brought his automobile to a halt and went back to where the boy was lying. He blamed his inability to see the children on the bright lights of the automobile which was following him. He testified that after drinking the ¾ of a pint of 80 proof vodka he “felt more relaxed”, but that it did not impair his vision.

He called one Joe Werry, who testified that he was some 150 yards away from the scene of the accident, and according to his testimony, all the children were “bunched up together”, and appellant’s automobile was on the paved portion of the highway at the time the child was struck.

The jury elected to accept the version of the facts elicited from the State’s witnesses, and we find the evidence sufficient to support the conviction. We shall discuss the contentions advanced by brief and in argument.

Officer Smith was asked if he had prepared a scaled drawing of the scene which reflected the physical facts which he found at the scene. When he replied in the affirmative, the drawing was admitted in evidence. During the course of his direct examination, it was developed by the prosecutor that in fact he had observed no physical facts which would indicate that appellant’s automobile had been driven in the left hand lane some time prior to hitting the child. Upon discovery of such fact, the prosecutor joined with appellant in requesting that such portion of the drawing be withdrawn from the jury view, and that they be instructed to disregard the same. Such request was granted; that section of the drawing was cut away, but appears in the record as defendant’s Exception #2 for the purpose of his Bill. It shows nothing more than at one time appellant crossed over into the left hand lane of the highway, which is the same evidence which had been elicited from the witness Long without objection, and hence cannot constitute grounds for a reversal of this conviction. The court did not err in refusing to grant a mistrial when such discovery and withdrawal were made. We are not here dealing with a large portion of the officer’s testimony as we were in Dujay v. State, Tex.Cr.App., 368 S.W.2d 613, upon which appellant relies, but upon a relatively unimportant section of a drawing which was withdrawn from the jury’s consideration. The only substantial defensive issue raised was whether the children were on or off the paved portion of the highway at the time the boy was struck. The portion of the drawing exhibited and then withdrawn from the jury’s consideration could not help solve that vital issue. Had an objection been leveled at the notation “Reaction time in applying brakes”, which appeared on that portion of the drawing which remained in evidence, no doubt the court would also have sustained the same. Since no objection was made, the same is deemed to have been waived. 5 Tex.Jur. 2nd, Sec. 39, p. 61.

At one juncture, Officer Smith indicated a point where appellant first applied his brakes. Upon an objection, the witness explained that he meant where the skid marks began. As explained, this did not constitute a conclusion of the witness, but a recitation of physical facts which the witness has observed.

Finding no reversible error, the judgment is affirmed.


author: DICE, Commissioner.

text:
    Charles CHAVEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 36599.
    Court of Criminal Appeals of Texas.
    Feb. 26, 1964.
    Phill R. Pickett, San Antonio, for appellant.
    James E. Barlow, Dist. Atty., Joseph D. Valdez, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant was charged by indictment under Art. 602-A, Vernon’s Ann.P.C., as a second offender, of wilfully .deserting, neglecting, and refusing to provide for the support and maintenance of his minor children under eighteen years of age. When the case was called for trial, appellant entered a plea of guilty, waived a trial by jury, and made application for probation of sentence, under the provisions of the Texas Adult Probation and Parole Law.

The court, after receiving the plea and hearing evidence adduced thereon, rendered judgment finding appellant guilty as charged and assessed his punishment at confinement in the penitentiary for thirty months.

In the judgment, it was ordered by the court that the imposition of sentence be suspended and that appellant be placed on probation upon certain terms and conditions, among them being that he would make certain child-support payments and would report in person each month to the adult-probation officer of Bexar County.

Thereafter, at a subsequent term, upon motion being made by the state and after a hearing, an order was entered by the court revoking the probation, upon a finding that appellant had violated the above-named conditions of probation. The court then proceeded to pronounce sentence upon him.

It is from such sentence and order revoking probation that appellant prosecutes this appeal.

In the appeal, appellant questions the sufficiency of the allegations of the indictment and the sufficiency of the evidence adduced upon the trial to support the judgment of conviction.

By falling to appeal when he was placed on probation, appellant waived his right to a review of the original trial and conviction and such questions are therefore not properly before us. Gossett v. State, 162 Tex.Cr.R. 52, 282 S.W.2d 59; McMillan v. State, 166 Tex.Cr.R. 15, 310 S.W.2d 116; Rash v. State, 168 Tex.Cr.R. 33, 323 S.W.2d 53; Porter v. State, Tex.Cr.App., 335 S.W.2d 838; Lee v. State, Tex.Cr.App., 355 S.W.2d 715.

The evidence presented upon the hearing of the state’s motion to revoke the probation amply supports the court’s order. No abuse of discretion is shown.

We overrule appellant’s contention that Art. 602-A, supra, is so indefinitely framed and of such doubtful construction as to be invalid and inoperative.

The judgment is affirmed.

Opinion approved by the court.


text:
    Ex parte Ralph Carl POWERS.
    No. 36554.
    Court of Criminal Appeals of Texas.
    Feb. 26, 1964.
    No attorney of record on appeal for appellant.
    James E. Barlow, Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

This is an appeal from an order refusing appellant bail after indictment for murder with malice. ' ■

At the hearing counsel for tile defense and the State agreed that in reaching a decision the court would consider the evidence adduced at an examining trial. At the examining trial the following evidence was presented.

In the early hours of the morning, the deceased, his female companion and another young couple were returning to the apartment house where he lived and had pulled into the parking lot at the rear of the building. Another car in which three men were riding followed them into the lot, drove the length of the lot, turned around and stopped beside the automobile occupied by deceased and his companions. Deceased asked them what they were doing, and appellant got out of the car, asked deceased if he wanted any trouble, began calling him foul names, and demanded that deceased say he was sorry. Deceased replied that he wanted no trouble and was sorry. Appellant then stated that he did not like the way deceased had said that he was sorry, and without any movement or provocation •on the part of deceased, shot him, thereby ■causing his death.

The facts as set out above make this a non-bailable case. Ex parte Siros, Tex.Cr.App., 367 S.W.2d 701, and Ex parte Black, Tex.Cr.App., 250 S.W.2d 224.

The judgment of the trial court is affirmed.


text:
    Albert J. MATTHEWS, Appellant, v. The STATE of Texas, Appellee.
    No. 36173.
    Court of Criminal Appeals of Texas.
    Jan. 29, 1964.
    Rehearing Denied March 11,1964.
    B. Rice Aston, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Bill White, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Our prior opinion is withdrawn.

Appellant waived a trial by jury, entered a plea of guilty before the court to the charge of unlawfully carrying a pistol, and was assessed punishment at confinement in jail for six months.

At the hearing, Clarence Robertson, called as a witness by the state, testified that on the night in question he came out of a tavern, met the appellant, and, upon saying ‘Good evening,’ ” appellant did not reply but removed a pistol from his coat pocket and shot the witness in the hip.

Appellant complains of the court’s action in admitting such evidence showing that on the occasion in question he shot Robertson. An examination of the record reflects that appellant did not timely object to the evidence and that there was other evidence admitted without objection with reference to his shooting the witness. Had appellant timely objected, the court’s action still would not have been error, as in prosecutions of this nature evidence of the acts and conduct of the accused at the time he is charged with carrying a pistol is admissible. Dodaro v. State, 89 Tex.Cr.R. 391, 231 S.W. 394; Lively v. State, 150 Tex.Cr.R. 485, 202 S.W.2d 850.

Testifying as a witness in his own behalf, appellant stated that on the occasion in question he heard someone curse him and, as he looked up, Clarence Robertson grabbed him around the throat with one hand, while holding his other hand in a position as if he had a knife, and that he then shot Robertson because he was scared and knew that Robertson was ready to cut him with the knife.

Complaint is made to the court’s action in refusing, upon objection being made by the state, to permit appellant to show that pri- or to the night in question he and Robertson hád certain difficulties and that Robertson had made threats against him.

The court excluded this evidence on the ground that it was not res gestae and not material to any defense upon a trial for the offense of carrying a pistol. Complaint is also made to the court’s action in refusing to permit appellant to perfect his bill of exception by presenting his own testimony as to the prior difficulties with Robertson.

The state having, for the purpose of aggravating the punishment, introduced evidence to the effect that the appellant made an unprovoked and unlawful attack upon Robertson with the pistol he pleaded guilty to carrying on his person, he should have been permitted to meet such proof and testify to prior threats and violence by Robertson, and to any other facts showing that the assault was not unlawful but was committed in self-defense and was justified.

While the court’s action was error, it does not call for a reversal, because the trial was before the court on a plea of guilty and the appellant did testify without objection, as follows:

“I was armed because he had threatened me. He had beaten up my father-in-law, put him in the hospital for six weeks — I mean six days and he threatened me and he has a reputation of a bad character, beating up people, and he has a bad habit of carrying a gun in his car and also a knife, and he threatened me * *

The state’s motion for rehearing is granted, the judgment of reversal is set aside, and the judgment is affirmed.

Opinion approved by the Court.


author: BELCHER, Commissioner.

text:
    George Edward DALTWAS, Appellant, v. The STATE of Texas, Appellee.
    No. 36566.
    Court of Criminal Appeals of Texas.
    Feb. 26, 1964.

      Appellant filed brief pro se.
    Alton R. Griffin, Dist. Atty., Roy B. Johnson, Asst. Dist. Atty., Lubbock, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for the possession of marihuana; the punishment, ten years.

The evidence reveals that Sidney Moore, while testifying, identified the appellant as the same person who represented himself and a woman as Mr. and Mrs. Calcip, to whom he rented a furnished two bedroom house in Lubbock on February 1, 1963, for $125 per month. The appellant at that time paid $25, and the next day the woman paid the balance. Mr. Moore testified that from February 1 to 15, he saw the appellant three times at the house. On one occasion the appellant was cleaning a rug with a vacuum cleaner, at another time when he took a mirror for one of the bedrooms, the appellant asked if he could get another mirror for the other bedroom. It was further shown that “Mrs. Calcip’s” sister was to live with them.

On March 1, 1963, when the officers went to the house owned by the Moore’s to execute a search warrant they met the appellant, George Edward Daltwas, in the living room, told him they were there to look for narcotics, handed him a copy of the warrant and asked him to be seated. Two women were also in the house when the officers arrived and during the search. Officer Bessent testified that he had seen the appellant, George Edward Daltwas and some women, one of whom he later learned was Imogene Limbough, entering and leaving the house in question numerous times between February 17 and March 1. On the dresser in the front bedroom of said house, the officers found a Western Union telegraph receipt issued in Lubbock for $20 from George Daltwas, made to Sammy Tucker in Fort Worth. The receipt, dated February 24, 1963, bore the address and the unlisted number of the telephone of the house searched. The appellant was seen driving a Cadillac which was registered in the name of George Daltwas, and it was seen several times in the drive-way at the house in question.

The testimony further reveals that a gunsmith in . Lubbock exchanged guns with the appellant in February, 1963, and that the shotgun which the officers found in said house on March 1, 1963, was the gun the appellant received in the exchange.

During the search of the house, the officers found a Prince Albert can between some newspapers on top of the refrigerator in the kitchen. The can containing a plant substance was wrapped in plastic inside a brown paper sack. An analysis of the plant substance by a chemist showed that it was marihuana.

Testifying in his own behalf, the appellant stated that he worked and had a house in Fort Worth, but he had been visiting Imogene Limbough and had been staying at the house of Imogene and Jerry May for about two weeks; that on March 1, when Imogene answered a call at the door, the officers entered the house and said it was a narcotics raid. Appellant denied renting the house, stated that he never considered it his premises but said he was there when the owner brought something for the house, also denied seeing the Prince Albert can until the trial, and stated that he never at any time possessed or used narcotics. He further stated that Sammy Tucker stayed at the house the night before the officers came and had been gone about an hour before they arrived.

Appellant called Tucker as a witness, and he testified that he knew the appellant George Daltwas, and had spent two days at his house in Lubbock, and upon leaving on March 1, he was arrested after travel-ling a short distance; that Imogene Lim-bough and Jerry May were at the house when he left, and that Imogene had gone under the name of Imogene Prince in Fort Worth. He further testified that he had known the appellant since 1953 and that appellant had never possessed or used narcotics to his knowledge.

Appellant attacks the validity of the affidavit for the search warrant and the warrant on the grounds that they do not name him, and that no itemized return was made on the warrant or served on appellant.

The affidavit recites that the premises were occupied and controlled by a person or persons whose name or names and description or descriptions were unknown to the affiant. An affidavit attacked on substantially the same ground was held to be sufficient in Hernandez v. State, 158 Tex.Cr.R. 296, 255 S.W.2d 219, and Doby v. State, Tex.Cr.App., 363 S.W.2d 286.

The failure of the officers to make a return on the search warrant or deliver to the appellant an itemized copy of the return, in the absence of a showing of injury, reveals no error. 23 Tex.Jur.2d 229, Sec. 150; Garcia v. State, 164 Tex.Cr.R. 273, 2998 S.W.2d 831; Jones v. State, 169 Tex.Cr.R. 175, 332 S.W.2d 560; Campbell v. State, Tex.Cr.App., 373 S.W.2d 749.

Error is urged on the ground that the search warrant was invalid because it recited that it was for “herion” instead of heroin, and that marihuana which was not named in the warrant was seized.

The misspelling of heroin would not vitiate the warrant which recited that it was for “a narcotic drug, to-wit: herion” instead of heroin. Lute v. State, 166 Tex.Cr.R. 357, 314 S.W.2d 98. Any contraband such as marihuana, although not specifically named in the warrant, may be legally seized when it is observed during the lawful execution of a valid search warrant issued for heroin. Burks v. State, 97 Tex.Cr.R. 113, 260 S.W. 181; Cortez v. State, 165 Tex.Cr.R. 320, 306 S.W.2d 713; 169 A.L.R. p. 1424.

Appellant contends that the trial court erred in refusing the admission of evidence before the jury that Imogene Lim-bough had been convicted for the possession of marihuana.

The proffered evidence shows that Imogene Limbough, one of the women in the house at the time of the search, was known as Imogene Prince in Fort Worth, where she was convicted for the possession of marihuana in 1958, with the punishment assessed at three years which was probated.

The evidence that Imogene had been convicted in Fort Worth for the possession of marihuana more than four years before appellant’s conviction herein, would not have been inconsistent with or precluded the guilt of the appellant in this case. Her conviction would not have rebutted the •fact that appellant testified that he was present in the house, when the officers found the marihuana and had been there for two weeks. Both the appellant and Imogene might be equally guilty in the transaction, either as joint owners, or as joint possessors, according to the definition of possession given in the charge of the court. The refusal of the admission into evidence of the prior conviction was not error.

The complaint of the failure of the court to charge on circumstantial evidence is not before us, there being no objection to the charge or requested charge in writing as required by Arts. 658 and 659, Vernon’s Ann.C.C.P. Nesbit v. State, 165 Tex.Cr.R. 336, 306 S.W.2d 901.

The court instructed the jury not to convict the appellant unless they found beyond a reasonable doubt that the substance introduced in evidence was marihuana, and unless they further found beyond a reasonable doubt that he had the marihuana in his possession, and if they had a reasonable doubt as to either of these matters, they must resolve that doubt in favor of the appellant and find him not guilty.

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

Opinion approved by the Court.


author: POPE, Justice.

text:
    H. S. LEBMAN, Appellant, v. MAVERICK COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NUMBER 1, Appellee.
    No. 14172.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 8, 1963.
    Rehearing Denied Feb. 12, 1964.

      Marvin Lebman, San Antonio, for appellant.
    Clemens, Knight, Weiss & Spencer, San Antonio, Jeremiah Ingels Rhodes, Eagle Pass, for appellee.
   POPE, Justice.

Plaintiff, H. S. Lebman, filed suit for a declaratory judgment against Maverick County Water Control and Improvement District No. 1, and sought to have assessments against his Maverick County land declared unconstitutional. The trial court denied the relief and we affirm the judgment.

Pursuant to the provisions of Article 7880-109, Water District fixed an annual charge of $5.25 per acre for lands classed as irrigable in the District. Lebman has 527 acres of land classed as irrigable. Pursuant to Article 7880-147z, Section 9, the District fixed an annual charge of $2.00 per acre on all lands in the District which are irrigable by gravity, whether such land is actually irrigated or not. The first assessment is for the maintenance and operation of its system of canals and laterals; the other is for the payment of interest and the retirement of the principal of bonds issued by the District.

The first attack on the assessments is that the law provides no method for hearing on the part of the owner of lands assessed. This point was considered in Hidalgo and Cameron Counties, etc. v. American Rio Grande Land & Irrigation Co., 5 Cir., 103 F.2d 509, and the Court held “that the hearing is afforded when the rates or charges are sought to be enforced by suit, and in the present case when the claim for them is offered to be proved.”

The second attack is that the assessments violate that part of Section 59(c) of Article 16, Texas Constitution, Vernon’s Ann.St., which authorizes the levy and collection of taxes or assessments, but requires that they must be equitably distributed. Lebman urges that the assessments are not equitably distributed. The factual basis for the argument is that his lands are rolling and not as well adapted to irrigation as other lands. His land has a maximum slope of six per cent as compared with some lands which do not slope at all. The trial court found “that the benefit of irrigation water to plaintiff’s land is less than the benefit to other owners having better land.” Whether his lands are better or worse than a few or many other owners is not shown. The court concluded that Article 7880-109, authorizes a uniform charge for expenses of maintenance and operation upon all irrigable lands in the District to which it is able to provide water through its system of canals, laterals and extensions, and that this is an equitable distribution. The court concluded that Article 7880-147z, Sec. 9, authorizes a charge against all lands in the District which are irrigable by gravity, whether the land is actually irrigated or not. The result is that lands are classified as irrigable, and if they are in fact, they must pay their uniform pro rata charge for the total expense. Lebman does not contend that his lands classed as irrigable are not in fact so; he argues that after irrigation his lands are not as greatly benefitted as other irrigated lands. An examination of both Article 7880-109 and 7880-147z, Sec. 9, shows that the Act of the Legislature also makes this distinction between irrigable and non-irrigable lands.

The Constitution requires the levy and collection of taxes and charges in such special conservation and reclamation districts to be “equitably distributed.” Art. 16, § 59, Texas Constitution. Mr. Justice Phillips, in Dallas County Levee Dist. No. 2, v. Looney, 109 Tex. 326, 207 S.W. 310, discusses the term, but the case is different from this one. That case appears to be concerned with an ad valorem levy, while this case concerns a flat rate assessment. City of Wichita Falls, etc. v. Williams, 119 Tex. 163, 26 S.W.2d 910, 79 A.L.R. 704. See Moore v. Maverick County Water Control & Imp. Dist. No. 1, Tex.Civ.App., 162 S.W.2d 1009. Also, Justice Phillips, while discussing “equitably,” shifts, without explaining why, to the term “equally.” The two are not necessarily the same. However, the case justifies special districts with their special taxation, because, in the case of such special districts, the benefits are local and an assessment is therefore an additional tax. The Court also said:

“The measure of benefit that will accrue to property from a local improvement is at best but an approximation, and hence there is no general principle of constitutional law that in the imposition of such taxes limits the legislative power to the exact amount of pecuniary benefit which the particular property derives.”

The trial court was of the view that the assessments were equitably distributed. The Supreme Court of the United States has said: “As pointed out in the cases cited, lands may be taxed to pay for local improvements although they receive no actual benefits.” Roberts v. Richland Irrigation Dist., 289 U.S. 71, 53 S.Ct. 519, 77 L.Ed. 1038. Accord, Western Union Telegraph Co. v. Wichita County Water Improvement Dist. No. 1, Tex.Com.App., 30 S.W.2d 301; Texas & Pac. R. Co. v. Ward County Irr. Dist. No. 1, 112 Tex. 593, 251 S.W. 212; Hydrocarbon Production Co. v. Valley Acres Water District, 5 Cir., 204 F.2d 212; Hershey v. Reclamation Dist. No. 108, 200 Cal. 550, 254 P. 542, 550.

Lehman’s lands were classed as irrigable, and they are in fact irrigated lands. Non-agricultural lands are converted into agricultural lands. In our opinion the flat rate charges are a substantial compliance with the requirement that the charges be equitably distributed according to benefits. 94 C.J.S. Waters § 334, pp. 338, 339.

The judgment is affirmed.