author: CHAPMAN, Justice.

text:
    COMMERCIAL STANDARD INSURANCE COMPANY, Appellant, v. John T. FORD, Appellee.
    No. 7599.
    Court of Civil Appeals of Texas. Amarillo.
    March 7, 1966.
    Rehearing Denied March 21, 1966.

      Cade & Bowlin, Lubbock, for appellant.
    Crenshaw, Dupree & Milam, Lubbock, J. Orville Smith, Lubbock, of counsel, for appellee.
   CHAPMAN, Justice.

This suit was instituted by appellant, Commercial Standard Insurance Company, against John T. Ford, insured, seeking a declaratory judgment as to what was meant in an automobile public liability insurance policy, in reference to a non-owned automobile, by the term, “an automobile or trailer not used by or furnished for the regular use of either the named insured or any relative.” Appellant contended the construction was a question of law for the court and objected to a jury submission.

The record shows that the father, John T. Ford, while driving his son Burl’s 1960 one-half ton Chevrolet pickup, had a collision on July 11, 1964, with Harold Young’s automobile and as a result thereof Mr. Young was killed. Appellee, John T. Ford, was sued by the surviving widow and children. Appellant insurance company was asked to defend the suit under the terms of the mentioned policy, refused, and then filed this suit seeking a construction of the above clause. The trial court disagreed with appellant’s contention that the construction of the clause was a law question and submitted the case to the jury upon two issues in exact language as follows:

1.
“Do you find from a preponderance of the evidence that at the time of the collision of July 11, 1964, the 1960 one-half ton Chevrolet Pickup Truck was an automobile furnished for the regular use of John T. Ford?
2.
“Do you find from a preponderance of the evidence that at the time of the collision on July 11, 1964, the 1960 one-half ton Chevrolet Pickup being driven by John T. Ford, was an automobile used by John T. Ford intermittently and incidentally ?”

To the first issue the jury answered, “No,” and to the second issue, “Yes.” Though appellant has brought forward thirteen points of alleged error, those it briefs are all argued together.

All points except those which have reference to the failure of the court to define terms or which object in some manner to the submission of Special Issue No. 2, ap-pellee’s affirmative defensive issue, contend in some manner that the court erred either in not holding as a matter of law, or in not holding in the light of the evidence as a matter of law, that the controversial clause must be interpreted as saying Burl Ford’s 1960 one-half ton pickup was furnished to his father for his regular use.

The points go to the failure of the court to grant appellant’s Motion for Peremptory Instruction; the failure to grant its Motion for Judgment Non Obstante Veredicto; its Motion for Summary Judgment; and its objection to the submission to the jury of what we believe to be a vital fact issue.

The record shows a motion for summary judgment had been overruled prior to the trial on the merits of the case. No such motion having been filed by appellee, the only order in the trial court in that connection was the one overruling a motion for summary judgment of appellant. Therefore, that order was interlocutory and no appeal would lie therefrom. Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396; Craig v. Rio Grande Electric Co-operative, Tex.Civ. App., 345 S.W.2d 460 (writ ref.). This being true, if the point of asserted error for previously overruling appellant’s motion for summary judgment could be considered a point at all in appeal from a trial on the merits it would be no more than a “no evidence” point.

Appellant has cited four cases in its index of cases for its contention that the court, under the deposition and trial evidence, committed reversible error in not holding as a matter of law that the controversial clause absolved appellants from any obligation to defend the Young law suit and be obligated for any adverse judgment against John T. Ford. We have studied those cases carefully and have to say candidly that they just have so many material distinguishing features from our case that we do not consider they furnish any authority for appellant’s contention that the case should not have been submitted to a jury. In a diligent search we have found no other cases that would so indicate. We hold the court was correct in Submitting the case to a jury.

It has been textually stated and held in effect by case law in Texas that the purpose of an insurance contract being to furnish indemnity against loss, the contract should be constructed in such way as to effectuate this purpose, rather than a way which will defeat it. Blashfield Cyclopedia of Automobile Law and Practice, Vol. 6, Par. 3521, p. 139; Home Ins. Co., New York v. Springer, Tex.Civ.App., 131 S.W.2d 412 (N.W.H.). The Galveston Court of Civil Appeals in Texas Lloyds v. Laird, Tex.Civ.App., 209 S.W.2d 937 (writ dismissed) has said: “It is a settled principle of insurance law that ‘language of a policy which is susceptible of more than one construction should be interpreted strictly against the insurer and liberally in favor of the insured.’ ”

It is obvious from our statement of the nature of appellant’s points heretofore mentioned that they are “no evidence” points. In considering them, we must therefore view the evidence in the most favorable light to John T. Ford, and must indulge against the motion for peremptory instruction, motion for judgment n. o. v., etc., every inference that may be properly drawn from the evidence. Dunagan v. Bushey, 152 Tex. 630, 263 S.W.2d 148; Adams v. Slattery, 156 Tex. 433, 295 S.W.2d 859; Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60; Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256.

Both appellee, John T. Ford, and his son, Burl, lived in the town of Farwell, Texas. They were farming adjoining land a short distance outside the town. In addition, ap-pellee farmed several other places, including some in New Mexico. Burl had suffered a nervous breakdown in 1962 and had been told by his doctor for a period of months not to drive a motor vehicle. His wife and father drove for him during that period but for several months before the accident between John T. Ford and the Young car, Burl’s doctor had permitted him to start driving again.

He and his father worked together as a father and son normally would who worked adjoining farms. His son farmed one rented place but also worked on his father’s farms for a salary. Burl had a wife and three children and the only means of conveyance he had was the 1960 pickup. In addition to using it in his farming operations, it was used as their family car. His father owned a 1962 Mercury Monterrey 4-door sedan; a 1964 one-half ton Ford pickup and a G.M.C. truck. On the very day of the collision between Mr. Ford and Mr. Young, Burl was enroute to Colorado on a fishing trip in his father’s 1964 one-half ton Ford pickup because it was a better vehicle for such a trip. His father was driving his son’s older and heavier pickup on the way home from changing the irrigation water for Burl at the time of his collision with Mr. Young.

The evidence shows they interchanged pickups when one was more useful for a given purpose; that Burl’s pickup was heavier and when there was some farm work for which a heavier pickup was more useful, appellee would use the son’s machine if it was not in use at the time; that sometimes he would not use it for two or three weeks at a time; that there was never any understanding between the father and son that the father could use it regularly; that it was usually at Burl’s house at night; that when John T. Ford kept it at night his pickup would be at Burl’s house; that sometimes when he used it the period would be no longer than thirty minutes. On more than one occasion in the testimony he stated without any objection that he did not use Burl’s pickup regularly.

“Q. Did he ever assign it to you or furnish it to you for your regular use, sir?
A. No, sir.
* * * * * *
Q. Did you ever consider this as a pickup that had been furnished to you for your regular use?
A. No, sir, I didn’t use it that often.”

Similar answers came at times even on vigorous cross-examination.

“A. I used it at anytime I seen fit, you know, if it was available, but I did not use it regular.
Q. Well, did you use it in your regular farm operation?
A. Well, yeah, in mine, and some in his, that is true.
Q. Well, that is regular use, isn’t it?
A. Well, no, I wouldn’t say so.
Q. When you use it in your regular occupation ?
A. Well, no, I wouldn’t use it that often. Maybe when mine was available, I maybe even when mine was there, if his was closer maybe I would use it.”

With such evidence as that just quoted in the record, applied to the inferences we must indulge against the “no evidence” points raised it is clear that the court was legally correct in submitting the case to the jury.

In its Points 4 and 8 appellant asserts error of the court in submitting Special Issue No. 1 without giving the jury the legal definition of the term “furnished for the regular use of” and in refusing to instruct the jury that the term “regular use” meant a use of the truck by John T. Ford in connection with his regular activities and particularly with reference to his regular business, trade or occupation.

The record reveals that appellant made such objections in its Objections and Exceptions to the court’s charge but there is no showing in the record that it complied with Rule 273, Vernon’s Ann.Texas Rules, which requires, inter alia, that:

“A request by either party for any instructions, special issues, definitions, or explanatory instructions shall be made separate and apart from such party’s objections to the court’s charge.”

Additionally, Rule 279 states, inter alia:

“Failure to submit a definition or explanatory instruction shall not be deemed a ground for reversal of the judgment unless a substantially correct definition or explanatory instruction has been requested in writing and tendered by the party complaining of the judgment.” (Emphasis added.)

Additionally, the points are not briefed and no authority whatever is cited by appellant concerning such points. Therefore, we must assume they were waived. Weatherred v. Kiker, Tex.Civ.App., 357 S.W.2d 182 (N.R.E.); Whitson Company v. Bluff Creek Oil Company, Tex.Civ.App., 278 S.W.2d 339, affirmed 156 Tex. 139, 293 S.W.2d 488.

For the reasons stated and under the authorities cited the two points are overruled. In Points 7, 9 and 10 reversible error is asserted in connection with the submission of Special Issue No. 2. The points are neither briefed nor argued nor is any authority cited to sustain such points. Under the authorities cited in connection with Points 4 and 8 involving the same rules of law, we must assume they are waived. Additionally, even if it should be said, argu-endo, that such issue should not have been submitted it was harmless in view of the fact that the judgment is supported by the finding in another special issue. Bruce v. Denton County Electric Cooperative, Inc., Tex.Civ.App., 377 S.W.2d 722; Dallas Railway & Terminal Co. v. Orr, Tex.Civ.App., 210 S.W.2d 863, affirmed 147 Tex. 383, 215 S.W.2d 862; Pope v. Jackson, Tex.Civ.App., 211 S.W.2d 958, affirmed Austin Road Co. v. Pope, 147 Tex. 430, 216 S.W.2d 563; Louisiana & A. Ry. Co. v. Chapin, Tex.Civ.App., 225 S.W.2d 614 (error refused.) And this rule was proper even before the adoption of the new rules of civil procedure in Texas, which generally are more liberal toward sustaining verdicts of the lower courts. West Texas Coaches v. Madi, Tex.Com.App., 26 S.W.2d 199; Thornton v. Moody, Tex.Civ.App., 24 S.W. 331 (error refused); Northwestern Nat. Life Ins. Co. v. Blasingame, 38 Tex.Civ.App. 402, 85 S.W. 819 (error refused); Ward v. Cathey, Tex.Civ.App., 210 S.W. 289 (error refused).

Finding no reversible error in the record before us, the judgment of the trial court is in all things affirmed.


source: Caselaw Access Project

author: STEPHENSON, Justice.

license: Public Domain

text:
    INTERNATIONAL INSURANCE COMPANY, Appellant, v. R. I. REID, Appellee.
    No. 6810.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 10, 1966.
    Rehearing Denied March 9, 1966.
    Orgain, Bell & Tucker, Beaumont, for appellant.
    Clark Anderson, Lufkin, for appellee.
   STEPHENSON, Justice.

This is an action to recover damages caused by a freeze, under a homeowner’s policy of insurance. Judgment was rendered for plaintiff, R. I. Reid, based upon the answer of the jury to one special issue submitted to it. The parties will be referred to here as they were in the trial court.

The policy of insurance covered loss by freeze, but contained the following provision :

“EXCLUSIONS * * * This insurance does not cover * * * (e) loss caused by or resulting from freezing while the building is unoccupied unless the insured shall have exercised due diligence with respect to maintaining heat in the building, or unless plumbing, heating and air-conditioning systems had been drained and the water supply shut off during such unoccupancy.”

The issues submitted to the jury and its answer were as follows:

“Do you find from a preponderance of the evidence that R. I. Reid exercised due diligence with respect to maintaining heat in the building in question before the freeze in question?
“Answer ‘We do’ or ‘We do not’
“Answer: We do”

Defendant alleged: The building damaged was unoccupied on the occasion in question; the plumbing was not drained and no heat was maintained in the building; the plaintiff had entrusted to his agent and employee, Alton Connell, the duty of protecting the building, which included the draining of the pipes and maintaining heat; both plaintiff and his agent, Alton Connell, failed to exercise due diligence with respect to maintaining heat in the building.

Defendant’s only points of error complain of the action of the trial court in refusing to submit to the jury the following series of issues:

“SPECIAL ISSUE NO.-
“Do you find from a preponderance of the evidence that on the occasion in question Alton W. Connell was the agent of R. I. Reid?
“Answer ‘Yes’ or ‘No’
“Answer:_
“In connection with the above issue, you are instructed that an agent is a person appointed to act for another in the transaction of some lawful business.
“If you have answered the above Special Issue “Yes”, and only in that event, answer the following Special Issue:
“SPECIAL ISSUE NO_
“Do you find from a preponderance of the evidence that on the occasion in question it was Alton W. Connell’s duties as agent, if you have so found, to protect R. I. Reid’s house from freeze damage ?
“Answer ‘Yes’ or ‘No’
“Answer: _
“If you have answered the above Special Issue ‘Yes’, and only in that event, then answer the following Special Issue:
“SPECIAL ISSUE NO_
“Do you find from a preponderance of the evidence that on the occasion in question Alton W. Connell exercised due diligence with respect to maintaining heat in R. I. Reid’s house ?
“Answer ‘Yes’ or ‘No’
“Answer:_”

It is agreed by the parties that the building was unoccupied on the occasion in question, that the plumbing, heating and air-conditioning systems had not been drained and that the water supply had not been cut off. The only question left to be determined, which was controverted, was whether the insured (plaintiff) had exercised due diligence with respect to maintaining heat in the building.

The evidence shows that Alton Connell was employed by plaintiff as ranch foreman on plaintiff’s ranch where the loss sued for had been sustained. Connell lived in a second house located on plaintiff’s ranch about two hundred yards from the house where the damage occurred. Plaintiff had been in the house in December but not during the month of January, when this loss was sustained. Connell testified that plaintiff had given him instructions to protect the property and to light the fires and drain the pipes when it was cold enough to freeze them. Plaintiff also testified he had given Connell instructions as to what to do in extreme weather conditions, and to light the fires, spend the night in the house and to cut off the water if necessary.

There is evidence to support the finding by the jury that plaintiff had exercised due diligence with respect to maintaining heat in the building and defendant has raised no points in connection with the finding by the jury in this respect.

It is defendant’s theory of the case that even though plaintiff may have personally exercised due diligence, that the failure of his employee or agent to do so would be binding upon plaintiff and prevent a recovery in this case.

Neither party has cited a case directly passing upon the question raised by this appeal. Defendant argues the plaintiff cannot delegate the duty to maintain heat in the building without suffering the consequences of a failure to exercise due diligence on the part of the person to whom the duty was delegated. Plaintiff argues the special issue submitted uses the wording of the policy, and that nothing more is required of an insured than the exercise of due diligence on his part.

It is a settled rule in this state that policies of insurance will be interpreted and construed liberally in favor of the insured and strictly against the insurer. Providence Washington Ins. Co. v. Proffitt, 150 Tex. 207, 239 S.W.2d 379. A strict construction of this policy of insurance requires only that the insured use due diligence. If it had been the intention of the parties to require diligence of both the insured and his agent or employee, then the contract of insurance should have so provided. The points are overruled.

Judgment affirmed.


author: PARKER, Justice.

text:
    Douglas FISHER et ux., Appellants, v. GULF COAST MACHINE AND SUPPLY COMPANY, Inc., Appellee.
    No. 6821.
    Court of Civil Appeals of Texas. Beaumont.
    March 17, 1966.
    Alvin E. Wiggins, Beaumont, for appellants.
    John H. Benckenstein, Beaumont, for ap-pellee.
   PARKER, Justice.

Douglas Fisher and wife sued Gulf Coast Machine and Supply Company, Inc. for damages caused plaintiffs’ home by the vibration of several large forging type hammers of defendant. Summary judgment was entered for Gulf Coast Machine and Supply Company, Inc. that plaintiffs take nothing by their suit. Plaintiffs will be called appellants and defendant will be called appellee in this opinion.

Appellants’ two points of error will be considered together:

“The Trial Court erred in granting a summary judgment for defendant because under the plaintiffs’ pleadings they have alleged a cause of action coming within Art. 1, Sec. 17 of the Constitution of the State of Texas [Vernon’s Ann. St.].”
“That the Trial Court erred in granting a summary judgment for defendant because under the plaintiffs’ pleadings a fact issue is raised for a jury determination.”

Appellants owned a home nearby the plant of appellee. Appellants alleged:

“IV.
“That defendant, Gulf Coast Machine and Supply Company, Inc. owns, operates and maintains a plant located at 1755 Evalon Street in Beaumont, Jefferson County, Texas and in connection with its operation, owns, operates and maintains several large forging-type hámmers which pound incessantly a number of hours per day and night and have continued to pound incessantly for a long period of time in the past. That as a result of the constant pounding of these hammers, the area and ground located under the plaintiffs’ home shakes and jars and has caused the home of your plaintiffs to be damaged thereby. That the use for which the plaintiffs had purchased their home has been interfered with.
“V.
“Your plaintiffs show unto the court that by reason of incessant pounding and jarring of the ground located in and about their home, that said property in question has been taken by virtue of Article I, Section 17 Texas Constitution, Vernon’s Annotated Statute which reads partly as follows: ‘No persons property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person.’ That your plaintiff herein shows that as a result of the repeated acts of pounding which with the large forging-type hammers, that their home has been jarred, shaken and broken and that their properties have been taken without just compensation and your plaintiffs herein rely upon the theory of inverse condemnation.
“VI.
“That prior to several years ago, that the home occupied by your plaintiffs was a home, was in good state of repairs, but since the aforesaid that the damage which resulted directly from the conduct on the part of the defendant has been extensive. That the reasonable cost of repair of said home at the time of amendment of this suit in Beaumont, Jefferson County, Texas is NINE THOUSAND ($9,000.00) DOLLARS, for which amount your plaintiffs sue herein.
“WHEREFORE, premises considered, your plaintiffs pray that the defendant be cited herein to answer as the law directs; and that upon final trial hereof, your plaintiffs have judgment over and against the defendant in the reasonable and just amount of NINE THOUSAND ($9,000.00) DOLLARS, for costs of court, and for such other and further relief, either in law or in equity to which your plaintiffs may be justly entitled.”

In answer to appellants’ first amended original petition, appellee plead a number of special exceptions, a general denial and specially plead that: (1) It is a corporation, incorporated under the laws of Texas, for the purpose of the transaction or manufacture of oilwell and marine supplies, and the purchase and sale of goods, wares and merchandise used for such business; (2) it does not have the right of eminent domain, has no authority to take property for public use, and the doctrine of inverse condemnation has no application to it; (3) it is a private corporation, not a public one; (4) it has and does now operate its plant at 1755 Evalon Street, Beaumont, Texas, as a private corporation and private business in the normal use of a private forging business, without negligence or carelessness, in a reasonable and lawful manner; and (5) whatever claim, if any, which the plaintiffs may or might have, the same is barred by the two year statute of limitations.

In appellee’s motion for summary judg-inent that appellants take nothing against it, it alleged:

“1.
“The plaintiff by filing its first amended original petition seeks to recover damages herein by virtue of Article 1, Section 17, of the Texas Constitution and relies entirely upon a theory of inverse condemnation, and reference is here made to plaintiffs’ first amended original petition and especially to paragraph 5 thereof, for the sole purpose of the description of plaintiffs’ alleged cause of action against this defendant.
“2.
“The defendant is a private corporation, incorporated under the laws of Texas with charter domicile at Beaumont and does not have any right of eminent domain or any right to take any property for public use.
“3.
“The plaintiffs’ property has not been taken, damaged or destroyed for or applied to public use without adequate compensation being made, insofar as this defendant is concerned.
“4.
“Supporting affidavits are attached.
“5.
“The pleadings, together with the affidavits show that, except as to the amount of damages there is no genuine issue as to any material fact and that this defendant, the moving party, is entitled to a judgment that plaintiffs take nothing against it upon such claim against said defendant as a matter of law.”

The affidavits, exhibits and pleadings conclusively show that appellee is a private corporation organized under and by virtue of the laws of the State of Texas for the manufacture of oilwell and marine supplies of all kinds, and the purchase and sale of goods, wares and merchandise used for such business. Its principal place of business is Beaumont, Jefferson County, Texas.

Appellants did not ask to amend their pleadings in the trial court and continued to rely upon their sole contention and theory that they were entitled to recover under Art. 1, Sec. 17 of the Constitution of the State of Texas. Appellants have continued in this court to urge that contention.

Appellee does not have the right of eminent domain, has no authority to take property for public use and is a private corporation, for which reasons appellants’ points of error 1 and 2 are overruled.

Judgment affirmed.


author: NORTHCUTT, Justice.

text:
    HOLT’S SPORTING GOODS CO. OF LUBBOCK, Appellant, v. AMERICAN NATIONAL BANK OF AMARILLO, Appellee.
    No. 7574.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 21, 1966.
    Rehearing Denied April 4, 1966.

      W. Hugh Harrell, Lubbock, for appellant.
    Culton, Morgan, Britain & White, Amarillo, Neal R. Allen, Amarillo, of counsel, for appellee.
   NORTHCUTT, Justice.

This is an appeal by the garnishor, Holt’s Sporting Goods Company of Lubbock, from the trial court’s judgment refusing to grant garnishor’s motion for summary judgment and in granting the garnishee’s, American National Bank of Amarillo, motion for summary judgment. Holt’s Sporting Goods Company had a judgment against Joe A. Gaston for $610.29 and had a writ of garnishment served upon the bank on November 19, 1964. The bank answered stating it was indebted to Joe A. Gaston in the sum of $451.97 but that when the writ of garnishment was served upon it Joe A. Gaston was indebted to the bank in the sum of $1,437.22, the same being the unpaid balance due and owing on a promissory note given by Gaston to the bank. Then the bank further pleaded that after the writ was served upon it the bank set off its indebtedness to Gaston against Gaston’s indebtedness to the bank and therefore the bank was not indebted to Gaston in any amount. The trial court granted the hank’s motion for summary judgment discharging it on its answer and allowed the bank a $250 attorney’s fee and denied Holt’s Sporting Goods Company’s motion. From that judgment Holt’s perfected this appeal.

Appellee relies on the case of Gill v. Oak Cliff Bank & Trust Co., Tex.Civ.App., 331 S.W.2d 832, as being directly in point here. In the Gill case, it was a garnishment before judgment based upon a writ of attachment, which writ of attachment was dissolved. Herein it is a garnishment after garnishor had a legal judgment. We think that case is clearly distinguishable from this case. In the Gill case the writ of garnishment had been quashed. Consequently, the garnishee was under no obligation to the garnishor. The bank in the Gill case answered that Jester was indebted and obligated to the bank in the amount of $2,944.24 on the date the writ of garnishment was served upon it and that on the day of such service the appellee applied the amount of the deposit of Jester to the indebtedness which he owed the bank. If Jester was indebted and obligated to the bank in the sum of $2,944.24 on the date the writ was served, we think the bank would have the right to apply any amount owed to Jester by the bank to Jester’s obligation.

In this case at bar there is a different condition existing when the writ of garnishment was served in this case there was one installment due. The bank did not declare the obligation matured but accepted the payment of the monthly installment due every month up to the date of the judgment. Consequently, Gaston did not owe the bank anything on the date of the judgment. We think originally when the writ was served on the bank if they had declared the Gaston obligation matured and applied the $451.97 to that obligation, they could have done so; but did not do that, but waived the right and are accepting payments as originally provided under the terms of the note.

We think under this record the sole question to be determined is whether the bank was entitled to apply the $451.97 to the indebtedness owed by Gaston to the bank. The indebtedness originally owed to the bank by Gaston was evidenced by one installment note for the sum of $2,703.96 payable in monthly installments of $75.11 each and secured by chattel mortgage upon a Pontiac sedan. The installments were payable on the fifteenth of each month. When the writ of garnishment was served upon the bank Gaston was in default by four days upon his installment payment due November 15, 1964. We are familiar with the rule that the bank might have set off the account of Gaston in case he was insolvent or in case of past-due indebtedness and that the bank could have declared Gaston’s entire indebtedness due when installments were past due but neither of those conditions were shown to exist in this case.

Under this record after the bank was served with the writ of garnishment it sent a notice to Gaston stating such installment was past due as was their customary procedure. They never did declare the balance due on the note as being matured but on the contrary continued to accept the monthly installments from Gaston up to the date of the rendition of the trial court’s judgment herein. Neither did the bank apply the $451.97 to the credit of Gaston’s note but made a notation upon Gaston’s bank account not to pay any checks as the account had been garnisheed. We think the appellee herein waived its right to apply the $451.97 to Gaston’s indebtedness to the bank.

It is stated in Stockyards Nat. Bank v. Presnall, 109 Tex. 32, 194 S.W. 384 as follows:

“It is a primary rule that a debt must have matured to be available as a off-set. An exception is made where the debtor is insolvent. But this is upon the equitable ground that, otherwise, the debt cannot be collected.”

See also. Kane v. First Nat. Bank of El Paso, 5 Cir., 56 F.2d 534, 85 A.L.R. 362.

There is nothing in this record to indicate Gaston was insolvent; that the note had been matured or that the debt might not be collected, but on the contrary, shows that Gaston has continued since the writ of garnishment was served upon the bank to pay the monthly installments as he had been doing before service of the writ.

It is stated in First Nat. Bank of Schulenburg v. Winkler, 139 Tex. 131, 161 S.W.2d 1053, as follows:

“Ordinarily the relation between the bank and a depositor is that of debtor and creditor, and, as a consequence, the bank has the right to set off the amount of the deposit against an equal amount of indebtedness which the depositor owes the bank. This right is accorded by-equity to the bank, and same may be waived by the bank or be overborne by the superior equity of a third person. 6 Tex.Jur. p. 234. The origin and nature of the bank’s right of set-off is thus explained in Van Winkle Gin & Machinery Co. v. Citizen’s Bank, 89 Tex. 147, 33 S.W. 862, 864: ‘The relation of the bank to its depositors is that of debtor and creditor, and its right to offset its indebtedness to the depositor against the indebtedness of the latter to it is of an equitable nature, intended for its protection, and does not depend upon any statute in relation to offsets. It is generally said that it is optional with the bank whether it will avail itself of this right. [Citizens’] Bank v. Carson, 32 Mo. 191; Jermain v. Denniston, 6 N.Y. 276; Marsh v. [Oneida Cent.] Bank, 34 Barb. [N.Y.], 298; Pitts v. Congdon, 2 N.Y. 352 [51 Am.Dec. 299]; Beardsley v. Warner, 6 Wend. [N.Y.], 610; [Ticonic] Bank v. Johnson, 21 Me. 426; [Shackamaxon] Bank v. Kinsler, 16 Wkly, Notes Cas. 509.’ ”

Since the garnishee herein by its answer became a litigant with appellant, the attorney’s fee must be denied as well as the cost of the court below and of this appeal and will be taxed against the garnishee. Moursund v. Priess, 84 Tex. 554, 19 S.W. 775; Presnall v. Stockyards Nat. Bank, Tex.Civ.App., 151 S.W. 873 and affirmed 109 Tex. 32, 194 S.W. 384.

We believe under this record that the bank waived whatever rights it might have had to hold the $451.97 as was attempted. Judgment of the trial court is reversed and judgment here rendered for Holt’s Sporting Goods Company for the sum of $451.97 together with all costs.

Judgment of the trial court is reversed and rendered.


author: CLAYTON, Justice.

text:
    Mario PALAFOX et al., Appellants, v. W. E. BOYD et al., Appellees.
    No. 5763.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 12, 1966.

      Richard Yetter, El Paso, for appellants.
    Travis White, City Atty., Wade Adkins and Daniel Garbern, Asst. City Attys., Morris Galatzan, El Paso, for appellees.
   CLAYTON, Justice.

This appeal was perfected from a judgment of the District Court of El Paso County, Texas. Plaintiffs below (appellants here) had purchased lots in the Crown Point Addition to the City of El Paso, Texas. These lots all fronted on a cul-de-sac and were Lots 40, 41 and 43. Defendants below (appellees here) were the owners and successors in interest of the owners of Lot 42, lying between Lots 41 and 43, and also facing on the cul-de-sac. The City of El Paso, Texas was made a party defendant and the prayer was for a temporary restraining order preventing the other defendants from deeding to the City of El Paso, and the latter from accepting, a deed to Lot 42 to be used as a public thoroughfare, and for declaratory judgment as to the rights of the parties herein. While the cause was pending, the City of El Paso accepted the deed from the then owners of Lot 42.

Under date of April, 1955, what was termed a “replat of Crown Point Addition” was drawn and executed by the developers, which dedicated to public use the streets, drives and easements shown therein, and this plat was approved by the City Planning Commission of the City of El Paso, approved and adopted by the City, and filed of record. Subsequent thereto, in 1958 and 1959, and in apparent reliance on this plat showing the streets, drives and easements dedicated in said addition, the plaintiffs bought their lots and built residences thereon. This plat showed their lots, and Lot 42, as fronting on the cul-de-sac, or turn-around, or dead-end street, as it is variously called. It was not until 1958, when one of the plaintiffs was building his house, that the plaintifs learned that Lot 42 was going to be a street, but they “didn’t get excited about it at that time” and “just let it go’ until such time that something was going to be done about it”. Then, as stated, after this suit was filed and was pending, the City accepted from the then owners a deed to Lot 42 for street purposes. At a hearing before the court it was agreed that the hearing would be on the merits and for injunctive relief, and that final judgment on the whole case would be rendered. After hearing, the court denied all relief prayed for by plaintiffs and ruled that the defendant, City of El Paso, had the right to use the property in question, Lot 42, as a public street; that the dedication thereof for street purposes was lawful and did not infringe on any rights of the plaintiffs; and that damages suffered by plaintiffs, if any (such as loss of privacy, additional traffic and possible flooding), were damnum absque injuria.

As agreed by both parties in their briefs, “The basic question that is being determined in this appeal is whether an owner of property, that has been subdivided, platted and submitted to the City Planning Commission of the City of El Paso under the applicable statutes concerning the creation of subdivisions, Article 974a Vernon’s Ann.Tex. Civ.St., can, subsequent to the acceptance of said plat and after filing for record in the County Clerk’s office, dedicate a building lot in said subdivision to the City to be used for a roadway”. We have determined that such question must be answered in the affirmative.

It should be mentioned here with regard to appellants’ points on appeal, that certain of them are based on a denied request for additional findings, the request for which came too late and cannot be considered here. Rule 363, Texas Rules of Civil Procedure, provides that an appeal is perfected when notice of appeal is given and bond has been filed. In the instant case, notice of appeal was given on January 15, 1965 and cash bond was given on January 29, 1965. The request for additional findings was made on February 12, 1965, by which time jurisdiction over the matter had vested in this court and the trial court was without jurisdiction to make such findings. 3 Tex.Jur. 597, § 340; Ammex Warehouse Company v. Archer, 381 S.W. 2d 478, 482 (S.Ct., 1964). Also, the filing of such request for additional findings was not timely under Rule 298, T.R.C.P.; Century Indemnity Company v. First National Rank, 272 S.W.2d 150 (Tex.Civ.App., 1954, n. w. h.). For these reasons, appellants’ Points One through Four, complaining of the trial court’s refusal to make certain findings, are overruled. However, it may be taken as undisputed that Crown Point Addition was platted in accordance with statutory requirements, but that the later dedication of Lot 42 as a public street did not meet the requirements of § 5 of Art. 974a V.A.T.S., and that such requirements did not have to be met, on the theory that such dedication did not constitute a vacation of the original plat or replat of said addition. This section (§5) requires that when lots have been sold in an addition, a vacation of said plat or replat, or any part thereof, may only be accomplished upon the application of all the owners of lots in said plat or replat with the approval of the City Planning Commission or the governing body of the City. This brings us back to the basic question stated above — whether an owner of property, that has been subdivided, platted and submitted to the City Planning Commission of the City of El Paso under the applicable statutes concerning the creation of subdivisions, Article 974a, V.A.T.S., can, subsequent to the acceptance of said plat and after filing for record in the County Clerk’s office, dedicate a building lot in said subdivision to the City to be used for a roadway.

This question must be answered by use of analogy, since there seems to be no Texas authority directly on the point. At the outset, the persuasiveness of appellees’ argument as contained in their brief against a negative answer to the stated question is at once apparent:

“ * * * The Appellants’ theory is that because of this statute a new street —additional to the streets shown on the filed plat — cannot be opened without consent of all the lot owners. This idea is quite novel and we have found no case exactly in point.
“One is struck with the far-reaching, even disastrous, consequences of such a theory. The State and the cities have long been engaged in extensive road and street building programs. A new highway in a city will usually pass through many platted subdivisions. Many of these subdivisions are large, including areas far from the new street. If opening a new street is a vacation of the plats through which it extends, the consent of hundreds, often thousands, of property owners would have to be obtained. In actual practice any major street program would be a sheer impossibility.”

Appellees, later in their brief, point out that “platting cannot abrogate the power of the State (or a political subdivision to which the State delegates the power) to acquire land for public use. This is obvious from considerations of public policy and from the decisions on the analogous situations arising under deed restrictions.” Appellees then cite the cases of City of Houston v. Wynne, 279 S.W. 916 (Tex.Civ.App., 1926), and City of River Oaks v. Moore, 272 S.W.2d 389 (Tex.Civ.App., 1954; ref., n. r. e.). When the Wynne case (supra) was before the Texas Supreme Court, 115 Tex. 255, 281 S.W. 544, that court said, per curiam:

“In our opinion the covenants in the dedication and in the deeds cannot be construed as intended to in any wise limit or affect the police power of the state acting through the city. For that reason the purchasers of lots acquired no interest not subordinate to the right of condemnation exercised in this case for the protection of the persons and properties of the inhabitants of the city against fire.
“The property embraced in the Eastwood addition is necessarily in the city of Houston and subject to the lawful exercise of all governmental power, and no valid contract could be made which would restrict the right on the part of the municipal authorities to exercise the police power of constructing and maintaining fire stations, and the contracts in this case cannot be properly construed as having the purpose to set aside, nullify, or prevent the exercise of governmental authority.”

On the precise question of whether the owner of what appeared to be a residential building lot on the plat of a subdivision can later dedicate the lot to the city' for a new street in said subdivision without thus constituting a vacation of the plat and invoking the provisions of Art. 974a V.A.T.S., we are cited to no Texas cases nor have we been able to find any. Appellees cite us the 1956 decision of the Supreme Court of Appeals of West Virginia in State ex rel. Wells v. City of Dunbar, 142 W.Va. 332, 95 S.E.2d 457. That case involved a situation where the City of Dunbar had instituted condemnation proceedings against a •lot in a subdivision having restrictive covenants for the purpose of building a toll bridge. The condemnation proceedings were dismissed when the City acquired the lot by deed from the owners, but the owners of an adjoining lot sued for compensation in damages claiming that the use to which the acquired lot was to be put violated the covenants binding owners of lots in the subdivision to use the “property exclusively for residence purposes and not conduct thereon any business”, and that this covenant created certain vested rights in the owners and that the construction of the toll bridge constituted a taking or damaging of such rights. The court, after quoting at some length from City of Houston v. Wynne, supra, went on to hold, 95 S.E.2d at page 461:

“We find ourselves in accord with the view that covenants of the nature of those here involved should not be so construed or applied as to require the government, or one of its agencies, in the taking or acquiring of private property for a governmental use, to respond in damages either on the theory of a taking of a vested right, or for breach of such a covenant. To hold otherwise would enable those having title to real estate often to greatly inconvenience and, perhaps, defeat the proper and orderly exercise by the government of the right of eminent domain, guaranteed to it by the Constitution, and absolutely necessary for the operation of the government in a manner best for the interests of all its citizens. No few citizens should be permitted to so contract as to destroy, or make prohibitive to the government, the right to acquire property for necessary governmental purposes. As pointed out in the cited cases, those who enter into such covenants do so with the knowledge that the government has the absolute right to acquire lands for governmental purposes, and they can not be presumed to have intended an interference with such right.
“The precise question involved has not been previously determined by this Court. Admittedly, the holding may in some cases cause injury to those having the benefits of such covenants, but we think such injuries are damnum absque injuria. Such damages, in most cases at least, would not be damages done directly to the property of claimants, but would amount only to a theoretical reduction in value. In most cases, at least, such damages would be problematical, requiring daring speculation as to the amount thereof.”

See also Gremillion v. Rapides Parish School Board, 134 So.2d 700, 702 (Court of Appeal, Louisiana, 1961).

Nor are we in accord with appellants’ contention that what we have said above may apply in condemnation cases but would not be applicable here, where there was a conveyance by a private citizen to the City of property to be put fo public use. In neither the Texas case of City of River Oaks v. Moore, cited above, nor in the West Virginia case reviewed, was the property acquired by condemnation proceedings. As we said in El Paso County v. City of El Paso, 357 S.W.2d 783 (n. w. h.): “We do not find * * * that it is necessary to either institute or threaten condemnation proceedings * * * the important thing being that the agencies involved have the authority to condemn * *

Appellants’ last two points of error attacked the trial court’s findings that any damage the plaintiffs may have suffered by reason of the change in the use of Lot 42 from a building site to a public street was damnum absque injuria, and that since the conveyance and acceptance of Lot 42 as a public street was accomplished by formal deed, it was unnecessary to decide whether it had become a public street at some prior time by oral, informal or implied dedication. On the damage issue, the court in the City of Dunbar case, discussed above, held such damages to be damnum absque injuria, and we see no reason why the same holding would not be equally appropriate in the instant case. Nor do we perceive any merit in the last point of error, since if we are correct in adhering to the effectiveness of the formal deed to the City and dedication of Lot 42 as a street, this became an established fact prior to the trial of the case on its merits.

We have not attempted to discuss all points of error seriatim, but we have carefully examined and considered each point and are constrained to overrule them all.

Finding no error in the judgment of the trial court, the same is in all things, affirmed.


author: COLLINGS, Justice.

text:
    Alvin BUSCHMAN, Appellant, v. Glenda Sue BRYANT et al., Appellees.
    No. 4039.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 25, 1966.
    Rehearing Denied April 1, 1966.

      Lemon, Close & Atkinson, Perryton, for appellant.
    Allen, Allen & Reavis, Perryton, for ap-pellee.
   COLLINGS, Justice.

This suit was brought by Glenda Sue Bryant, her husband and others, against Ralph C. Dix, executor of the estate of Anna Rogers., deceased, Alvin Buschman and wife and others. Plaintiffs alleged that John W. Rogers and wife, Anna Rogers, are both deceased; that during their lifetime they accumulated various properties in Ochiltree County, including a large tract of land in the Wilmouth Survey; that John W. Rogers died testate on or about April 3, 1955, survived by his wife. Plaintiffs assert that at the time of John W. Rogers’ death he owned his community one-half interest in approximately 2210 acres of land in the Wilmouth Survey; and that under Rogers’ will plaintiffs were devised 1280 acres of land owned by John W. Rogers and wife. Plaintiffs further alleged and the record shows that after the death of John W. Rogers, his wife filed his will for probate and qualified as executrix of her husband’s estate. Thereafter Mrs. Anna Rogers died leaving a will under which the defendants are devises.

This suit sought a declaration of the plaintiffs’ rights under the will of the said John W. Rogers. Plaintiffs alleged two alternative theories. First, that the will of John W. Rogers placed his widow and life tenant to an election to either take under the will or reject the will, and that Mrs. Anna Rogers took under the will; that therefore plaintiffs took an undivided 1280 acres out of the 2210 acres in the Wilmouth Survey. In the alternative, plaintiffs urged that if the wife were not required to elect that the devise was effective as to 1105 acres, that being the community one-half of the testator John W. Rogers, and that plaintiffs therefore took 1105 acres undivided out of the 2210 acres owned by Rogers and wife at the time of his death.

The court held, in effect, that the will did not put Mrs. Rogers to an election; that it awarded plaintiffs 1105 acres undivided out of the 2210 acres in the Wilmouth Survey. The court also allowed plaintiffs a recovery for $1,105.00 the reasonable value of the use of the surface of land held to belong to plaintiffs during the time defendant was in possession. Alvin Buschman has appealed.

As indicated by the record, the plaintiffs or appellees are the remaindermen under the will of John W. Rogers, deceased, wherein the said John W. Rogers created a life estate leaving certain land to his wife, Anna Rogers, for life, and the remainder to appellees. Appellant is a devisee under the will of Anna Rogers, also now deceased. The portion of the will of John W. Rogers material to the question here under consideration reads as follows:

“I give, devise and bequeath unto my beloved wife, Anna Rogers, for and during the term of her natural life the following property, to-wit:
Twelve hundred and Eighty (1,280) acres out of the Northwest (NW) corner of the Wilmouth Survey, Ochiltree County, Texas
the above tract of land to be taken out of the property which I own in the Wilmouth Survey of Ochiltree County, Texas, to be given to the said Anna Rogers for and during the term of her natural life, and at her death to Lewis Waggoner and Glenda Sue Waggoner, and their heirs forever in fee simple — ”

As we understand from the briefs neither party contends on this appeal, although appellees did so contend in the trial court, that Mrs. A-nna Rogers was required to make an election under the will. That question, however, is material to the related question here involved, that is, what land, or interest in land did John W. Rogers intend to devise by the language of his will.

In 97 C.J.S. Wills § 1264b, at page 66, it is stated that:

“The widow of a testator who has attempted to dispose of her interest in community property must elect between her interest in such property and provisions made for her by the will; but where the testator intended to dispose of his own property only, or of his interest in the community property only, the widow is not required to make an election.”

Also see Baldwin v. Baldwin, 134 Tex. 428, 135 S.W.2d 92. The presumption is that a testator intends to dispose of only the property belonging to him, and unless the will is subject to no other construction, it will not be construed to dispose of the widow’s interest. It is further indicated that any ambiguity in a will should be resolved in favor of such presumption. In Schelb v. Sparenburg, 133 Tex. 17, 124 S.W.2d 322, at page 326, Justice Critz, speaking for the Supreme Court, stated as follows:

“ * * * if this will should be construed to be ambiguous on the question as to whether the testator intended to bequeath the entire community estate, or merely the interest he owned therein, then the law furnishes a solution by requiring that it be given the construction that only the property owned by the testator was intended to pass thereunder. Rogers v. Trevathan, 67 Tex. 406, 3 S.W. 569. In the Rogers case, supra, this Court, speaking through Judge Stayton, said [page 570]: ‘Having only an undivided interest in the land, were the terms of the will ambiguous, the testator would be presumed to have intended to devise only his interest in the entire tract, * * *

In Davis v. East Texas Savings & Loan Association, 163 Tex. 361, 354 S.W.2d 926, Chief Justice Calvert, speaking for our Supreme Court, stated:

“The law presumes that a testator intends to dispose of only his own property, and a testamentary instrument will not be construed to dispose of property not owned by the testator unless that result is indicated by clear and unequivocal language which leaves the will ‘open to no other construction.’ ”

In the instant case, John W. Rogers owned only a community interest in the 2210 acres in the Wilmouth Survey. In the preamble to his will, he expressed a desire “to make disposition of my property — ”. Although the will indicated a devise of 1280 acres of said land to his wife for life with remainder to appellees, the testator specified that the devised land was “to be taken out of the property which I own in the Wilmouth survey.” The use of the quoted words in the will indicate an intention to dispose of only what the testator owned. The stated intention to dispose of “property which I own” is under this record controlling and the court properly held that no election was required by the widow. The language of the will as a whole does not show by clear and unequivocal language an intention to dispose of any part of Mrs. Anna Rogers’ one-half interest in the community. If there is any ambiguity in the will concerning the extent of the devise, it must be resolved in favor of the presumption that John W. Rogers intended to dispose of only the property belonging to him, that is, his community interest in the land. In Avery v. Johnson, 108 Tex. 294, 192 S.W. 542, 544, it is held in effect that it is not sufficient that the will may be construed as showing an intention to require an election, but it is necessary that the language of the will be open to no other construction.

The contention in appellant’s first point is that the will of John W. Rogers does not reflect an intent to dispose of more than his one-half community interest in a 1280 acre tract of land, and that the trial court should therefore have limited appel-lees’ recovery to 640 net acres. We cannot agree with this contention. The material question is: what land or interest in land did the testator intend to devise as shown by the language of the will and if the will is ambiguous by also considering the facts and circumstances involved. The will did not purport to devise 640 acres to Mrs. Rogers for life, with remainder to appellees. The purported devise was 1280 acres which was more than the testator’s interest in the land. As previously indicated it must be presumed that the testator did not intend to convey land which he did not own unless the language of the will is capable of no other construction. The record shows that at the time of making the will and at the time of his death John W. Rogers owned only a community interest in the 2210 acre tract of land. The language of the will purporting to convey 1280 acres out of the tract when the testator’s community interest therein was only 1105 acres created an ambiguity. It is our opinion that the legal presumption concerning the determination of the intention of a testator in such cases and the facts and circumstances shown by this record support the implied finding and judgment that under the will the community one-half interest held by John W. Rogers at the time of his death passed to plaintiffs as remaindermen upon the death of Anna Rogers. Long v. Long, Tex.Civ.App., 252 S.W.2d 235 and cases cited therein.

The facts in the case of Ford v. Bachman, Tex.Civ.App., 203 S.W.2d 630, (ref. n. r. e.) are strikingly similar to those in the instant case. In that case the testator bought a 3450 acre ranch which it is undisputed was the community property of the testator and his wife. He then executed a codicil to his will devising such ranch by name, acreage and legal' description to his wife for life, with remainder to his grandsons by a former marriage. Justice Murray, speaking for the San Antonio Court of Civil Appeals, stated as follows:

“These surrounding circumstances carry some persuasion that testator may have intended that his grandsons, appellants here, should have the entire 3450 acres in Uvalde County after the death of his second wife, but they are not sufficient to overcome the presumption that a person will not undertake the testamentary disposition of property which he does not own, nor that rule for the construction of wills to the effect that where a testator undertakes to devise or bequeath property of which he is only part owner, by a general description of such property, it will be presumed that he intended to dispose of only his undivided interest therein, unless the opposite intention is clearly and unequivocally expressed. Avery v. Johnson, 108 Tex. 294, 192 S.W. 542. Further, where such terms as 'my estate’ are used rendering the general description of the property ambiguous, then it must be presumed that the testator intended to bequeath only his interest in such property. A will should not be given the construction that the testator intended to dispose of property not his own, unless no other construction is possible. Sailer v. Furche, Tex.Com.App., 22 S.W.2d 1065.”

In appellant’s second point it is contended that the court erred in entering judgment against him for rental for the use of the surface of the land held to belong to appellees. The rental period covered the time in which appellant had possession after the death of Anna Rogers. In our opinion this point is not well taken.

The judgment awarded appellees the community undivided one-half interest of John W. Rogers in the 2210 acre tract of land effective upon the death of the life tenant, Mrs. Anna Rogers. Mrs. Rogers died in August of 1964. Appellant had cattle on the land at the time under a lease from Mrs. Rogers. Appellant Buschman testified that he and the executor of the estate of Mrs. Rogers “continued under the lease we had with Mrs. Rogers.” Appellant admitted that he has had possession of the land since Mrs. Rogers’ death. When asked why he was paying rent on only 930 acres appellant answered as follows: “Because this other 1280 acres was in dispute. We were trying to negotiate some kind of deal with the Waggoners.” The evidence and the implied findings of the court support the judgment entered awarding appel-lees $1,105.00 for the use of their land. Appellant’s second point is overruled.

The judgment is affirmed.


text:
    Eugene Monroe VANCE, Appellant, v. STATE BOARD OF HAIRDRESSERS AND COSMETOLOGISTS, Appellee.
    No. 4027.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 25, 1966.
    Rehearing Denied March 25, 1966.

      Dan M. Fergus and H. L. Hays, Jr., Abilene, for appellant.
    Waggoner Carr, Atty. Gen., Austin, for appellee.
   COLLINGS, Justice.

Eugene Monroe Vance brought this suit in the District Court against the State Board of Hairdressers and Cosmetologists to set aside an order of the Board revoking plaintiff’s licenses to practice and instruct in hairdressing and cosmetology. Both plaintiff and defendant filed motions for summary judgment. The defendant’s motion was granted and judgment was entered upholding the defendant’s administrative order revoking the cosmetology licenses held by plaintiff.

Section 10(c) of Article 734b, Vernon’s Tex. Penal Code, provides in part as follows : .

“The Board may refuse to issue or to renew or may suspend or revoke any license issued in accordance with the provisions of this Act for the following reasons:
* * * * * *
(c) Conviction of any misdemeanor involving immoral conduct.”

The record shows that Eugene Monroe Vance on May 21, 1964, entered a plea of guilty and was convicted in the County Court at Law of Taylor County of the offense of possessing lewd literature in violation of Article 527 of Vernon’s Texas Penal Code. The record further shows that as a result of a hearing held on January 29, 1965, in compliance with Article 734b of Vernon’s Texas Penal Code, appellee, State Board of Hairdressers and Cosmetologists, made the following findings and order:

“1. That Eugene Monroe Vance, holder of Instructor’s License No. 773 and Operator’s License No. 65-53245, is the same person who was convicted of possession of lewd literature in No. 10,158 in the County Court at Law in Taylor County on May 21, 1964.
2. That possession of lewd literature is a misdemeanor involving immoral conduct as prescribed by Section 10(c), Article 734b.
ORDER OF THE BOARD
Pursuant to the hearings and findings above made, it is the order of the Texas State Board of Hairdressers and Cosmetologists that Instructor’s License No. 773 and Operator’s License No. 65-53245, issued to Eugene Monroe Vance be, and are hereby, revoked by virtue of the authority vested in the Board by Section 10(c), Article 734b.”

Upon an appeal to the 104th District Court of Taylor County, the court, after hearing, denied appellant’s motion for summary judgment, and granted the motion for summary judgment of appellee, State Board of Hairdressers and Cosmetologists.

Appellant presents one point of error in which he contends that:

“The trial court erred in overruling appellant’s motion for summary judgment, and in sustaining appellee’s motion for summary judgment; because appellant’s conviction in County Court at Law, Taylor County, Texas, was void in that appellant was not advised of his right to legal counsel to represent him prior to, and during the trial, nor was he advised as to the consequences of his conviction in said cause. All of which is in violation of the sixth and fourteenth amendments to the Constitution of the United States of America.”

Appellant contends that the plea of guilty and judgment of conviction based thereon are nullities and absolutely void. In this connection appellant filed a verified pleading in which he alleged:

“Plaintiff would further show the Court that at no time prior to his supposedly conviction in Cause No. 10,158 of the County Court at Law, Taylor County, Texas, styled ‘The State of Texas vs. Eugene Monroe Vance’, was he offered legal counsel to represent him nor was he afforded legal counsel prior to or during the trial in said cause, nor was he advised as to the consequence of his conviction in said cause and that the Plaintiff is not an attorney and did not know all of the consequences of said conviction and therefore, such conviction was invalid and completely void and the action taken by the Defendant in revoking his Instructor’s License No. 773 and Operator’s License No. 65-53245, was invalid and void and without any force and effect under the 6th and 14th Amendments to the Constitution of the United States of America.”

Appellant also filed a supplemental answer to defendant’s motion for summary judgment and a motion for summary judgment in his favor in which he alleged, concerning the judgment of conviction against him, that it:

“ * * * is invalid and void and without any force and effect because Eugene Monroe Vance was not offered legal counsel to or during the trial of said cause, nor was he advised as to the consequence of this conviction in said cause, in violation of the Sixth and Fourteenth Amendments to the Constitution of the United States of America, as shown by Plaintiff’s Second Supplemental Petition, sworn to by the plaintiff, on file herein, and made a part hereof for all purposes.”

The judgment of conviction in the County Court at Law is valid upon its face and does not disclose the alleged defect urged by appellant. The judgment recites that appellant “after being duly admonished of the consequences * * * by the court, pleaded guilty to the charge * * * Appellant seeks to avoid the order of the State Board of Hairdressers and Cosmetologists by collaterally attacking in a civil court the criminal conviction rendered against him which is not shown to be invalid upon its face. Such a collateral attack on that judgment is not permissible unless the judgment is void and not merely erroneous in such a way as to be voidable. Texas Department of Public Safety v. Richardson, 384 S.W.2d 128 (Sup.Ct.); Perry v. Copeland, Tex.Civ.App., 323 S.W.2d 339; Ex parte Tyler, 152 Tex. 602, 261 S.W.2d 833; Clayton v. Hurt, 88 Tex. 595, 32 S.W. 876; Martin v. Sheppard, 145 Tex. 639, 201 S.W.2d 810; Heard v. State, 146 Tex. 139, 204 S.W.2d 344.

In our opinion, the County Court judgment of conviction against appellant was not void. The court, therefore, did not err in overruling appellant’s motion for summary judgment and in granting the motion of ap-pellee for a summary judgment. Appellant’s point of error is overruled.

The judgment is affirmed.


author: WILSON, Justice.

text:
    T-P INVESTMENT CORPORATION et al., Appellants, v. R. S. WINTER, Appellee.
    No. 4435.
    Court of Civil Appeals of Texas. Waco.
    March 10, 1966.
    Rehearing Denied March 31, 1966.
    Guilford L. Jones, John W. Benson, Big Spring, for appellants.

      Huggins, Vickery & McConnell, Houston, for appellee.
   WILSON, Justice.

By writ of error defendants seek review of a default judgment. They made no effort in the trial court to have it vacated. We sever and reverse the judgment as to one defendant and affirm as to the others.

Plaintiff sued a corporate defendant for the purchase price of corporate stock. This defendant filed no answer. The sheriff’s return on the citation recites a true copy of the citation with plaintiff’s petition was delivered to defendant. A blank for the return contains no specific column for a showing of the manner of service, but provides a column for defendant’s name, date, time and mileage. The blank was filled as follows: “Name, T. P. Investment Corp. Date, 12/18/64, 9:15 A.M. Mileage, 2.”

Rule 107, Texas Rules of Civil Procedure, requires the officer’s return on the citation to state “the manner of service.” The Rule is derived from former Art. 2034, Revised Civil Statutes, 1925, the predecessor of which in 1884 contained the same requirement. Under that provision the Supreme Court held: “To state that an officer executed process by serving it upon a named person is not to state the manner of service, but to give only the legal conclusion of the officer as to the compliance of his act with the requirements of the statute. It is to state no more than that he served the process by serving it upon a particular person, —the manner of service is left untold.” Continental Ins. Co. v. Milliken, (1885) 64 Tex. 46, 47.

In 1858 the Supreme Court thought it “necessary to lay the axe to the root of the evil and refuse any longer to recognize any return that does not show a compliance with the requirements of the statutes” in a direct attack on a default judgment. Graves v. Robertson, 22 Tex. 130, 132. It was said that the Court would in the future insist “upon a strict compliance with the provisions” of the statute requiring the return to “state the manner of service,” and would not leave that manner “to be inferred.” See also Underhill v. Lockett (1857) 20 Tex. 130 (131).

Presumptions as to validity of service based on recitals in the judgment do not obtain on direct attack. Flynt v. City of Kingsville, 125 Tex. 510, 82 S.W.2d 934.

The return will not support a default judgment under a direct attack. Ryan v. Martin (1867), 29 Tex. 412; Sun Mutual Ins. Co. v. Seeligson & Co., (1883), 59 Tex. 3, 7; Texaco, Inc. v. McEwen, Tex.Civ.App., 356 S.W.2d 809, 813; Hyltin-Manor Funeral Home v. Hill, Tex.Civ.App., 304 S.W.2d 469, 470.

The petition alleges an entirely different cause of action for a partnership accounting against two individual defendants. The complaints as to the default judgment against them are that the pleadings and evidence are legally insufficient to support a default judgment, and that they have been provided with a narrative, not a question and answer statement of facts. There is no error preserved or record perfected in the trial court sufficient to raise the latter point. ■

The petition alleged that in 1963 plaintiff entered into an insurance agency partnership agreement with these individual defendants, under which he was entitled to 30% of the net profits accruing from January 1 to May 31, 1964; that he withdrew from the partnership in 1964, and defendants have refused to pay him anything or render an accounting. He prayed judgment for accounting and sums to which he was entitled thereunder. Defendants say the pleading is inadequate because it does not allege with sufficient certainty the amount sued for under the opinion in Kimmarle v. Houston & T. C. Railway Co. (1889) 76 Tex. 686, 12 S.W. 698. Appellant urges also a Court of Civil Appeals opinion in which the majority concurred only in the result.

It is not necessary that the pleading allege evidentiary facts or be “technically sufficient to state a cause of action in order to sustain a default,” if .it does “not show affirmatively that the plaintiff had no cause of action.” Edwards Feed Mill v. Johnson, 158 Tex. 313, 311 S.W.2d 232, 234.

The very nature of the prayer for accounting made it unnecessary for plaintiff to allege a certain and specific amount of damages or sum due, because the amount is ordinarily uncertain at the time of pleading. Samuels v. Finkelstein, Tex.Civ.App., 25 S.W.2d 923, 926, writ dism.; Baca v. Weldon, Tex.Civ.App., 230 S.W.2d 552, 557, writ ref. n. r. e.; 1 Tex.Jur.2d, Accounts and Accounting, 353; 1 Am.Jur.2d, Accounts and Accounting, 434; 1 C.J.S. Accounting § 38, p. 671. The pleading was sufficient to support the default.

It is said that the only evidence offered at the hearing on default judgment is hearsay, and consequently there is no evidence to sustain the judgment as to the amount of profits earned. The argument is, however, that there is no predicate laid which would show plaintiff’s qualification to testify, and the evidence offered is not the best evidence. There is nothing in the record to show the evidence is hearsay. In a direct attack by writ of error “the question to be decided is whether there is a lack of jurisdiction apparent on the face of the record which .would vitiate the trial court’s judgment. McKanna v. Edgar, Tex.Sup. (1965) 388 S.W.2d 927, 928. Defendants’ complaints concerning these other objections to which the evidence might have been subject are not within this category.

The points of the individual defendants are overruled and the judgment as to them is affirmed. Two-thirds of the costs on writ of error are taxed against them. The judgment against the corporate defendant is severed and is reversed, and the cause as to it is remanded. One-third of the costs are taxed against plaintiff.


author: WADDILL, Commissioner.

text:
    John A. GREGORY, Jr., Ancillary Administrator of the Estate of Robert E. Hall, Sr., Appellant, v. PADUCAH MIDSTREAM SERVICE, Appellee.
    Court of Appeals of Kentucky.
    March 25, 1966.
    Charles A. Williams, Paducah, Dresbach, Crabbe, Newlon & Bilger, Columbus, Ohio, for appellant.
    A. E. Boyd, Jr., Boyd & Boyd, Paducah, Robert O. Miller, Murray, for appellee.
   WADDILL, Commissioner.

This action for wrongful death was brought by appellant, John A. Gregory, Jr., as ancillary administrator of the estate of Robert E. Hall, Sr., against appellee, Padu-cah Midstream Service, Inc., as lessee and operator of the tugboat Alice. The appel-lee moved for a directed verdict at the close of appellant’s evidence on the grounds that (1) no negligence in the operation of the tug was shown, and (2) the evidence established the decedent was guilty of contributory negligence which was the proximate cause of his death. This motion was sustained and judgment entered accordingly.

Appellee was not entitled to a directed verdict unless the evidence construed most favorably for appellant was insufficient to sustain a verdict for him. Johnson v. Vaughn, Ky., 370 S.W.2d 591; Aubrey’s Adm’x v. Kent, 292 Ky. 740, 167 S.W.2d 831. Ordinarily the question of whether an accident was caused solely by the defendant’s negligence or was contributed to by the plaintiff should be left to the jury. Winn-Dixie Louisville, Inc. v. Smith, Ky., 372 S.W.2d 789; Eichstadt v. Underwood, Ky., 337 S.W.2d 684. Only where but one reasonable conclusion can be drawn by fair minded men will the court decide the issue as a matter of law. Middleton v. Partin, Ky., 347 S.W.2d 75.

The evidence discloses that at about noon on a clear day in August, 1962 Robert Hall, in the company of Robert May, was piloting a 17-foot pleasure craft, having a 75 horsepower outboard motor capable of propelling it 35 miles per hour, on Kentucky Lake. Hall was proceeding upstream on the lake in an area frequented by small boats when he sighted appellee’s tugboat traveling downstream in the Tennessee River channel of the lake. The tug was moving about seven miles per hour and was pushing four empty barges which were arranged two abreast. Hall passed the tug on its right side, crossed in back of the tug and proceeded downstream along its left side. He continued traveling in a straight course until he was about 450 feet beyond the nearest barge when he turned his boat to the right and into the path of the oncoming tug. Suddenly the motor of Hall’s boat ceased functioning and the boat stopped in front of the barges. Hall and May abandoned the boat before it was struck by the barges; May was rescued, but Hall drowned. (It later was discovered that the gasoline tank connected to the motor was empty).

The barges occupied an area approximately 70 X 390 feet in front of the tug and their highest sections were 13 feet above the water line. Only the pilot and a deck hand were on duty aboard the tug and they were stationed in the pilot house at the time of the accident. No one was aboard the barges. The pilot and deck hand testified that because their forward vision was obstructed by the barges for a distance of 1000-1200 feet they were unable to see Hall’s boat after it passed the port side of the barges and were unaware of Hall’s and May’s dilemma until they were seen in the water alongside the tug. The pilot also testified that the tug would travel more than 150 feet, after stopping operations were begun, before their forward motion could be reversed.

Appellant contends that the failure to have a lookout posted on the barges constituted actionable negligence, and that Hall’s act of crossing in front of the tug did not constitute contributory negligence as a matter of law. Appellant further contends that assuming Hall was contributorily negligent, it would not bar recovery since this action is governed by admiralty law.

The accident occurred on a navigable stream which is within the territorial limits of Kentucky. Although federal law does not provide a right of action for wrongful death in these circumstances, the instant action was maintainable under Kentucky’s wrongful death statute, KRS 411.-130. Monongahela River Consol. Coal & Coke Co. v. Lancaster’s Adm’r, 169 Ky. 24, 183 S.W. 258; Anno. 71 A.L.R.2d 1296, at 1308.

The accident occurred on a part of the lake that was frequented by small boats operated by vacationers. While a properly stationed lookout is required of those operating vessels on any navigable stream, the customary activity in this area of the lake placed an especial duty on the appellee to have such a lookout. Monongahela River Consol. Coal & Coke Co. v. Lancaster’s Adm’r, supra.

Under appellant’s evidence it could reasonably be determined that the lookout would have warned the pilot of Hall’s danger in time to have slowed the tug sufficiently to avoid the accident. Accordingly, whether appellee’s negligence in failing to have a properly stationed lookout was a proximate cause of Hall’s death was a question for the jury to determine. We conclude that appellee was not entitled to a directed verdict on the first ground of its motion.

With respect to the second ground of appellee’s motion, contributory negligence is premised on the theory that, in crossing the path of the oncoming tug, Hall violated the tug’s right of way (see Rule 22 of the Inland Rules of Navigation, 33 U.S.C. Section 347, and Boat Regulation 14 (2) (11), adopted by the Kentucky Division of Boating pursuant to KRS 235.320), thereby placing himself in a position of danger. Under the facts presented we are unwilling to hold as a matter of law that a reasonably prudent person would have anticipated that the motor of Hall’s boat would fail to properly operate when it reached the middle of the Tennessee channel of the lake. Upon the present record in the case, whether Hall was guilty of contributory negligence was a question which only a jury could determine under an appropriate instruction.

Relying on the rule in St. Louis and Tennessee River Packet Co. v. Murray and Wathan, 144 Ky. 815, 139 S.W. 1078, it is argued that even if Hall were contributorily negligent appellant would be entitled to a recovery of 50% of his damages under admiralty law. That case involved property damage and has not been extended to personal injury cases. In the subsequently decided Monongahela River case, supra, an action for wrongful death, it was observed that contributory negligence will prevent a recovery. Moreover in The “Tungus” v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503, 3 L.Ed.2d 524, 71 A.L.R.2d 1280, the Supreme Court of the United States rejected the argument that an action may be brought under a state law but that the conditions and qualifications of that law may be ignored and the resulting void filled by admiralty law. Also see 1 Benedict, American Admiralty, Section 148 (pg. 392).

In Goett v. Union Carbide Corp., 361 U.S. 340, 80 S.Ct. 357, 4 L.Ed.2d 341, it was held that it is the province of each state to determine whether state law or admiralty law shall be controlling in the application of that state’s wrongful death statute to an action involving a maritime death.

It is our conclusion that contributory negligence is a complete bar to recovery under our wrongful death statute. Monongahela River Consol. Coal & Coke Co. v. Lancaster’s Adm’r, supra; Feige v. Hurley, 6 Cir., 89 F.2d 575.

The judgment is reversed with directions to set aside the order sustaining the motion to dismiss and for further proceedings not inconsistent with this opinion.


author: CLAY, Commissioner.

text:
    Ruth Coleman RATLIFF, Appellant, v. James E. EPLING, Jr., and Bill Coleman, d/b/a C & E Coal Company, et al., Appellees.
    Court of Appeals of Kentucky.
    March 25, 1966.
    Dan Jack Combs, Ronald W. May, Pike-ville, for appellant.
    Baird & Hays, Pikeville, for appellees.
   CLAY, Commissioner.

Appellant is seeking workmen’s compensation death benefits. The Board found the employee’s death did not arise out of and in the course of his employment. This order was confirmed by the circuit court. The case has been before us earlier on a procedural question. Epling v. Ratliff, Ky., 364 S.W.2d 327. A related case is Ratliff v. Big Sandy, Ky., 389 S.W.2d 911, wherein the facts are detailed.

The deceased was a coal miner and his employer was engaged in a deep mining operation. The employer’s lease encompassed a substantial area west of • the drift mouth where the employee worked. This area had been auger-mined by another company not here involved. The auger mining had created a “high-wall”, ranging from 18 to 25 feet in height, above a shelf along which a roadway extended to the drift mouth. This roadway was customarily used by employees going to and from their work there. (Apparently it was the only means of ingress and egress.) It was not well-defined but the route extended generally along the shelf, which had substantial width.

The employee had quit work for the day. He planned to ride home with a fellow employee whose car was parked near the drift mouth. The car would not .start. While the driver went to secure assistance, the employee took a box and expressed the intention of gathering loose coal, for his personal use, along the face of the “high-wall”. When he was about 173 feet from the drift mouth this embankment caved in upon him, causing his death. The accident happened approximately one-half hour after he had quit work.

Appellant contends the employee was on his employer’s premises and that since the accident happened within a reasonable time after quitting work, while he was on his way home, it should be held that he was still in the course of his employment. We are confronted with two very serious problems involving the application of the “Going and Coming” rule and the matter of “Deviation” from the course of employment.

The “Going and Coming” rule involves the question of whether or not, and under what conditions, an employee is covered by workmen’s compensation when on his way to or from the place where he actually performs the duties connected with his employment. This problem has vexed the courts for years and it must be conceded that governing principles have not been consistently applied by our Kentucky cases. It may be generally stated that (in the absence of the performance of some employment duties) the employee is not covered if he is not on the premises of the employer. See Larson’s Workmen’s Compensation Law, Vol. 1, section 15.00. (page 195). State Highway Commission v. Saylor, 252 Ky. 743, 68 S.W.2d 26; Scott Tobacco Co. v. Cooper, 258 Ky. 795, 81 S.W.2d 588; W. T. Congleton Co. v. Bradley, 259 Ky. 127, 81 S.W.2d 912; Gray v. W. T. Congleton Co., 263 Ky. 716, 93 S.W.2d 829; Miracle v. Harlan Wallins Coal Corporation, 311 Ky. 169, 223 S.W.2d 738.

On the other hand, we have not adopted the converse rule (which generally prevails) that the employee is automatically covered simply because the accident occurred on the employer’s premises. See Draper v. Railway Accessories Co., 300 Ky. 597, 189 S.W.2d 934; Harlan Collieries Co. v. Shell, Ky., 239 S.W.2d 923; Harlan-Wallins Coal Corporation v. Stewart, Ky., 275 S.W.2d 912; Johnson Brothers Lumber Company v. Hood, Ky., 330 S.W.2d 929; Bickel v. Ford Motor Company, Ky., 370 S.W.2d 193. The theory of some of those cases was that the accident was not covered, even though occurring on the employer’s premises, because the employee was not exposed to an “industrial hazard”. Since our cases have not uniformly used this criterion (which is a rather elusive one at best), and since eminent authorities do not consider it relevant, we no longer think it should be controlling.

We are not willing, however, to accept the boundary line of the employer’s property as the proper point at which to differentiate between liability or nonliability. We must take this position because, particularly in the coal mining industry, extensive acreage may be encompassed within the employer’s property or premises and it would be unrealistic to conclude that the employee was in the course of his employment at any and all times when he was within those boundaries.

The Pennsylvania courts have taken what appears to be a fairer and more practical view of what constitutes “premises”. In Young v. Hamilton Watch Co., 158 Pa. Super. 448, 45 A.2d 261, a distinction was made between the “premises” and the “property” of the employer. It was held that where the injury did not occur on the “operating premises” of the employer, compensation would be denied. The same general principle was followed in Connecticut (Flodin v. Henry & Wright Mfg. Co., 131 Conn. 244, 38 A.2d 801) and Tennessee (Bennett v. Vanderbilt University, 198 Tenn. 1, 277 S.W.2d 386).

The “operating premises” concept is somewhat related to the idea expressed by this Court in Barker v. Eblen Coal Company, Ky., 276 S.W.2d 448, where the test applied was: “work connected activity”. If we interpret “work connected activity” as including “work connected place”, we really reach the concept of “operating premises”. See Cooper, “Workmen’s Compensation — The ‘Going and Coming’ Rule and Its Exceptions in Kentucky”, 47 Ky.L.J., pages 420, 424. (This might be considered a justifiable extension of the “industrial hazard” theory.)

The “operating premises” principle appears implicit in the following cases: Phil Hollenbach Co. v. Hollenbach, 181 Ky. 262, 204 S.W. 152, 13 A.L.R. 524; Barres v. Watterson Hotel Co., 196 Ky. 100, 244 S.W. 308; Big Elkhorn Coal Co. v. Burke, 206 Ky. 489, 267 S.W. 142; Wilson Berger Coal Co. v. Brown, 223 Ky. 183, 3 S.W.2d 199; Stearns Coal & Lumber Co. v. Smith, 231 Ky. 269, 21 S.W.2d 277; Black Mountain Corporation v. Vaughn, 280 Ky. 271, 132 S.W.2d 938; Clear Fork Coal Company v. Roberts, Ky., 279 S.W.2d 797; King v. Lexington Herald-Leader Co., Ky., 313 S.W.2d 423.

The cases of United States Steel v. Isbell, Ky., 275 S.W.2d 917, and Barker v. Eblen Coal Company, Ky., 276 S.W.2d 448, appear inconsistent with this concept.

Two cases involving injuries on a parking lot seem directly in conflict. Compensation was allowed in A. C. Lawrence Leather Co. v. Barnhill, 249 Ky. 437, 61 S.W.2d 1, and denied in Bickel v. Ford Motor Company, Ky., 370 S.W.2d 193. In the Pennsylvania case we have above cited (Young v. Hamilton Watch Co., 158 Pa. Super. 448, 45 A.2d 261) it was held that a parking lot (located on the property of the employer, though not contiguous with the work area) was not a part of the “operating premises”. Since we reached the same conclusion in the Ford Motor Company case (where the lot was adjacent to the “operational premises”), Barn-hill in effect has been overruled.

In our opinion the “operating premises” test is a fair one and most consistent with the trend of our decisions, and we hereby adopt it. Applying it to this case, we find that the roadway area extending at least as far as the point opposite which the employee was killed (173 feet from the drift mouth) properly should have been considered within the “operating premises” of the employer by the Board.

Our final question is whether the Board was justified in finding that the activity of the employee at the time of his death was such a “deviation” from the course of his employment that he was beyond the pale of coverage. It may be stated generally that the deviation should be substantial, or to put it another way, “minor interludes are immaterial”. Larson’s Workmen’s Compensation Law, Vol. 1, section 19.63 (page 294.99).

The authority just cited lists the following insubstantial deviations which do not absolve the employer of liability: “running across the street in the course of a delivery trip to buy a little food; getting cigarettes during a trip to or from work in the employer’s conveyance; stopping at one’s home to get a raincoat and leave some meat; crossing the road during a delivery trip to have a glass of beer at 2:00 in the afternoon; picking up two young ladies and taking them home while driving a car to test its brakes; buying a toy during spare time to take home to a child; and even picking cherries from a customer’s cherry tree.” For an extreme case of this character see Cavalcante v. Lockheed Electronics Co., 85 N.J.Super. 320, 204 A. 2d 621. This opinion is not to be construed as either approving or disapproving the findings above cited as examples.

On the other hand, it has been said: “If the incidents of the deviation itself are operative in producing the accident, this in itself will weigh heavily on the side of non-compensability, * * Larson’s Workmen’s Compensation Law, Vol. 1, section 19.61 (page 294.94). The following cases are illustrative: Conklin v. Industrial Transportation, Inc., 312 Mich. 250, 20 N. W.2d 179—the very act of stopping to see a personal friend causes a motor vehicle collision; Public Serv. Co. of Northern Illinois v. Industrial Comm’n, 395 Ill. 238, 69 N.E.2d 875—employee crossed dangerous railroad tracks which did not constitute a hazard on the regular route; Sun Insurance Co. v. Boyd, Fla.App., 101 So.2d 419 —employee climbed a ladder to retrieve a hammer.

A Kentucky case on the point is Colwell v. Mosley, Ky., 309 S.W.2d 350. In that case a truck driver crossed the highway to assist his brother-in-law whose automobile had stalled. While the opinion emphasizes the fact that the employee was on a “personal mission”, it is apparent that the nature of the mission created the hazard which resulted in the injury.

In the present case we not only have what apparently was a personal mission unrelated to the trip home, but we also have an obviously increased hazard. (Though no one knows about this, it is entirely possible that the employee’s activity at the base of the “high-wall” could have started the slide.) There is no evidence that the cave-in covered the roadway or that the employee would have been injured had he remained in or about the automobile in which he proposed to ride.

In connection with the increased hazard by reason of a personal mission, we think the time factor is an important consideration. To the extent that an employee is covered on the “operating premises” while going to or leaving his work, he remains in the course of his employment only for a reasonable time necessary to accomplish the “going” or “coming” process. Delay in departure itself increases the hazard. It may be said that the longer the delay, the lesser the deviation which will take the employee out of the course of his employment. Here the delay in departure plus the nature of the deviation unreasonably compounded the risks to which the employer should be subjected.

It is therefore our conclusion that even though coverage reasonably could be extended to the general area where the employee was killed as being part of the “operating premises”, the time factor coupled with the nature of the deviation was such as to take the employee out of the course of his employment.

The judgment is affirmed.

      . This case was followed in Moatz v. Moatz, 160 Pa.Super. 176, 50 A.2d 641; Fedorko v. Pennsylvania Electric Co., 161 Pa. Super. 279, 52 A.2d 103; and Vardzel v. Dravo Corporation, 402 Pa. 19, 165 A.2d 622. It is distinguished in Grazer v. Consolidated Vultee Aircraft Co., 161 Pa.Super. 434, 55 A.2d 538; and Shaffer v. Somerset Community Hospital, 205 Pa.Super. 419, 211 A.2d 49.


author: DAVIS, Commissioner.

text:
    William WRIGHT, Petitioner, v. Honorable Richard B. CRAWFORD, Judge, Jefferson Circuit Court, and Honorable Elmer N. Carrell, Clerk, Jefferson Circuit Court, Respondents.
    Court of Appeals of Kentucky.
    Feb. 25, 1966.
    William Wright, pro se.
    Carl C. Ousley, Jr., Asst. Commonwealth’s Atty., Louisville, for respondents.
   DAVIS, Commissioner.

William Wright, as petitioner, invokes the original jurisdiction of this court, seeking an order of mandamus against the respondents as judge and clerk, respectively, of the Jefferson Circuit Court. The petitioner, proceeding pro se, asserts that he is insolvent and unable to employ counsel. The specific prayer of his petition is thus phrased:

“Petitioner requests the Appeal Court to issue an order to Judge Richard B. Crawford of the Jefferson County Circuit Court, Common Pleas Branch, Fifth Division, Louisville, Kentucky, and Elmer N. Carrell, Clerk of Jefferson Circuit Court, compelling the Court and Clerk to furnish to the petitioner, without cost, copies of the transcripts of two previous Police Court hearings in this case; also copies of all alleged medical bills including the name of the surgeon who supposedly performed operation on the plaintiff.
“Petitioner humbly requests that his petition for Writ of Mandamus with allowance to proceed in forma paup-eris be granted.”

We relate the background of this controversy, as gleaned from the present petition and a response filed to it:

On September 4, 1964, a civil complaint was filed in Jefferson Circuit Court against the present petitioner by Donald E. Armstrong. Armstrong sought compensatory and punitive damages by reason of an alleged malicious assault committed upon his person by petitioner, Wright. Summons was duly issued on the complaint, and a sheriff’s return reflects service of the summons upon Wright was had on September 10, 1964. The civil action was assigned to the Fifth Division of the Common Pleas Branch of the Jefferson Circuit Court, over which the respondent judge presides.

On September 19, 1964, Wright, appearing pro se, filed a paper designated as “Answer and Response,” in which he asserted “insufficient process” deprived the court of jurisdiction. In what manner the process was deemed insufficient was not disclosed.

On September 29, 1964, Wright filed another paper, this one captioned “Motion to Dismiss-Notice-Motion-Order,” by which he prayed the court to dismiss a purported notice, motion, and order filed by the plaintiff Armstrong. Again Wright appeared pro se.

On October 12, 1964, Wright filed another pleading, this one designated “Answer and Response,” in which he denied the allegations of the complaint, and pleaded that a criminal prosecution based on the same assault had been dismissed by the Louisville Police Court. This pleading suggested that the plaintiff Armstrong was non compos mentis and urged the court to conduct an inquiry into the mental status of Armstrong. The pleading further alleged that process had not been served upon Wright until October 2, 1964. Once more Wright filed the pleading without assistance of counsel.

The next fragment of the proceedings made known to us is in form of “Instructions Given By The Court June 23, 1965.” The instruction was a peremptory for the plaintiff Armstrong, with directions to the jury to assess damages. The jury was permitted to assess compensatory and punitive damages, and by copy of the verdict it appears that the jury did assess compensatory damages in the sum of $526.80 and punitive damages in the sum of $2,000.

On June 30, 1965, Wright, without counsel, filed “Motion for New Trial,” in which he advanced three grounds for the relief sought: “ (1) Defendant never had counsel and the Court failed to appoint him counsel after defendant notified the Court that he never had funds to employ counsel. (2) Defendant was never notified of date set for trial and case being tried in the absence of the defendant violated defendant’s Constitutional Rights. (3) Defendant requests the Court to grant him a new trial, and appoint him counsel since defendant is without the necessary funds to employ competent counsel, so that all the witnesses may be subpoenaed in order that the Court may get a true picture of exactly what happened.”

On July 13, 1965, Wright filed a paper styled “Notice of Appeal and Affidavit for Allowance to Proceed in Forma Pauperis.” This paper was duly sworn to by Wright, and in it he alleged that he “is on the verge of bankruptcy” and completely without funds wherewith to perfect an appeal to the Court of Appeals. The same document concluded with Wright’s prayer that the circuit court clerk and the official court reporter be required to furnish, without cost, transcripts of the clerk’s record and of the testimony. On that same date Wright filed a separate motion asking the court to appoint an attorney for him “in accordance with the Notice of Appeal and Affidavit for Allowance to proceed in forma pau-peris.”

By letter dated July 15, 1965, the trial judge informed Wright that he had no authority to appoint counsel for him in this civil case. The same letter informed Wright that his motion to proceed in forma pauperis was overruled and that pursuant to KRS 426.390 a notation had been made at the foot of the judgment permitting an execution against Wright’s person. Wright was told in the letter that an order of court had been issued authorizing Wright’s arrest pursuant to KRS 426.390; the letter also apprised Wright of the availability of KRS 426.400 in effecting his release from jail if the arrest occurred. The final paragraph of the letter strongly suggested to Wright that he should obtain counsel, and told him of the availability of the Legal Aid Society of Jefferson County.

So far as we are able to discover, there was no hearing had touching the issue of whether Wright was eligible to proceed in forma pauperis. KRS 453.190 provides:

“Except as provided in paragraph (b) of subsection (2) of KRS 28.460, a court may allow a poor person residing in this state to prosecute or defend any action therein without paying costs, whereupon he shall have any counsel that the court assigns him and shall have from all officers all needful services and process without any fees, except such as are included in the costs recovered from the adverse party.”

In Clouse v. Glass Milling Co., 285 Ky. 690, 149 S.W.2d 9, this court pointed out that it is the duty of the circuit court to adjudicate the question of indigence when a litigant seeks to invoke the provisions of KRS 453.190. The same decision makes plain that even a pauper is not entitled to a free transcript of evidence in a civil case, although the pauper is entitled to the clerk’s record. Clouse did not advert to the matter of assignment of counsel.

In Parsley v. Knuckles, Ky., 346 S.W.2d 1, this court said that nothing in the common law required counsel in civil cases. In Parsley there does not appear from the opinion that the matter of indigence was presented, nor that Parsley prayed for the appointment of counsel. The court did not have KRS 453.190 for consideration under the facts there.

Without entering upon full consideration or discussion of whether “due process” demands appointment of counsel for an indigent litigant in a civil case, we are persuaded that the statutorily permitted imprisonment of Wright (KRS 426.390) brings this case within the rationale of the rule applicable to appointment of counsel for indigents in criminal cases. We are unable to perceive a valid distinction between the criminal judgment which imposes jail sentence and the civil judgment which does the same. The litigant’s “liberty” is as surely impaired by one as the other. Therefore, for the purposes at bar, if it is ultimately adjudicated that Wright is a pauper, he has the same rights as an indigent in a criminal case. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733, requires appointment of counsel; Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, assures counsel on appeal. Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 guarantees a transcript. Cf. Davenport v. Winn, Ky., 385 S.W.2d 185.

Although the specific prayer of the present petition is imperfectly worded, the plain import of the entire procedure is Wright’s counsel-less effort to be adjudged a pauper and afforded counsel on appeal with an adequate record.

It is ordered that the trial court afford Wright a hearing on the issue of his indigence, and if it is adjudged that he is indigent then counsel for him on appeal shall he assigned by the trial court and record and transcript shall be furnished to him, cost free, for use on appeal.

MONTGOMERY, T., dissenting.