author: STEWART, Judge.

text:
    William E. PEARSON, Appellant, v. Ethel B. PEARSON, Appellee.
    Court of Appeals of Kentucky.
    March 24, 1961.
    Rehearing Denied Nov. 3, 1961.
    Shumate & Shumate, Thomas D. Shu-mate, Richmond, for appellant.
    Chenault & Coy, James S. Chenault, Charles R. Coy, Richmond, for appellee.
   STEWART, Judge.

This appeal by William E. Pearson is from that portion of the judgment entered which ordered him to restore $8,000 in cash to his ex-wife, Ethel B. Pearson, as her property, and which, in addition, directed him to pay her $13,000 as alimony.

Appellant, William E. Pearson, and ap-pellee, Ethel B. Pearson, were married on December 26, 1925, and remained husband and wife until their separation on June 2, 1956. They have two children, a son, William E., Jr., who is married and a medical student in Louisville, and a daughter, Phyllis Ann, who is widowed and lives with appellant at the family home at Waco in Madison County.

On August 2, 1956, appellee filed suit for divorce from appellant alleging cruel and inhuman treatment and asking for $32,500 lump sum alimony. On August 4th appellee moved for $50 per week as maintenance pendente lite. The sum of $200 per month for the wife’s temporary support was ordered but was later reduced to $150 per month. On August 7, 1956, appellant counterclaimed for divorce on the ground of cruel and inhuman treatment. By amended complaint, appellee sought restoration of property in the sum of $24,000.

On June 6, 1958, judgment was entered granting appellee a divorce from appellant and further adjudging that she recover from him $1,650 unpaid pendente lite monthly payments, $8,000 as restoration of money earned and contributed by her for the furnishing, upkeep and maintenance of the home and family, and $13,000 as lump sum alimony. These amounts, plus the court costs and the fees of appellee’s attorneys of $1,000, were ordered secured by a lien on appellant’s real estate. The real estate described in this suit was adjudged to be solely the property of appellant, subject to the lien. The parties were ordered to restore to each other such other property which either may have obtained directly or indirectly from or through the other during marriage, in consideration of or by reason thereof.

Appellant’s first argument for reversal is that appellee failed to prove any grounds for a divorce against him and therefore the court was without authority under the evidence presented to award alimony against him. He further urges that he was entitled to an absolute divorce on his counterclaim.

The trial court found that appellant habitually behaved toward appellee in such a cruel and inhuman manner as to indicate a settled aversion to her or to destroy permanently her peace and happiness, while appellee was found “guilty of some nagging, most of which was justifiable.” There is some evidence to uphold these findings of fact; and, under CR 52.01, since such findings are not clearly erroneous under the facts presented, this Court cannot justifiably make new “findings for the purpose of reversing the alimony award.” Wells v. Wells, Ky., 293 S.W.2d 718, 719.

Even if appellee had failed to prove that she was entitled to the divorce and appellant’s counterclaim had prevailed, this fact alone would not deprive her of her claim of alimony. Luke v. Luke, 276 Ky. 683, 125 S.W.2d 251. The right to alimony is based upon the principle that the husband has a duty to maintain his wife; and, if the wife is not wholly at fault and not morally delinquent, she may be entitled to alimony, although the husband is granted the divorce. Sharp v. Sharp, 302 Ky. 426, 194 S.W.2d 835; Muth v. Muth, 314 Ky. 531, 236 S.W.2d 469; Coleman v. Coleman, Ky., 269 S.W.2d 730. In this case there is no evidence that appellee was wholly at fault or morally delinquent. Therefore, the chancellor could without abuse of his discretion grant her alimony.

Appellant further contends that since, except for certain articles of furniture, ap-pellee admits that none of her earnings or property were invested in any of the property owned by him, the chancellor patently erred in adjudging appellee $8,000 as restoration of her property.

Both of the parties were school teachers at the time they were married and appellee has continued to teach, except for a few years, to the present time, earning in excess of $300 per month. Appellant, on the other hand, taught school almost continuously until he became superintendent of the Madison County schools. By reason of a change in the personnel of the board of education of Madison County, he was replaced as superintendent sometime during the year of 1954 and since that time has devoted his time exclusively to< farming. According to his testimony he now earns from $1,000’ to $1,500 each year from the farming operations.

The chancellor found as a fact that ap-pellee now owns personalty valued at no more than $1,200 and no real estate; that, however, her earnings were largely spent for furniture for the home, for necessities for the family, for upkeep of the home and for rearing and educating the children. The chancellor concluded she should be repaid a portion of her earnings, in the sum of $8,000, which she used for the purposes mentioned. The chancellor also ordered the parties to restore to each other such specific articles of property as either may have obtained during the marriage and in consideration thereof.

KRS 403.065 deals with property restoration in divorce cases. It reads, in part: “Every judgment for a divorce from the bond of matrimony shall contain an order restoring any property not disposed of at the commencement of the action, which either party may have obtained, directly or indirectly, from or through the other, during marriage, in consideration or by reason thereof; and any property so obtained, without valuable consideration, shall be deemed to have been obtained by reason of marriage * *

As stated in appellant’s brief, and as borne out by the cases cited by both parties, the right to restoration of property is based solely upon the fact that one spouse has invested earnings or money, or something else of a valuable consideration, in the property the other spouse owns at the time of the divorce.

In the present case appellee, who maintained a separate deposit of her own earnings in the bank while at the same time, by appellant’s leave, wrote checks against his bank account and charged items against his credit in stores, admits she did not invest any of her earnings or money in any of the property owned by him (except for a few household items, which appellant concedes appellee bought and which he stands ready to turn over to her). The evidence also reveals that appellee bought most of her own clothes, paid part of her medical expenses, and spent some of her money on Christmas and birthday presents for her husband and family. It was also established that appellant amply provided for his family’s needs and sent both the children born to them through college at his sole expense.

Appellee cites the cases of Patterson v. Patterson, Ky., 266 S.W.2d 91, wherein the husband owned a telephone service for which the wife kept all the books, operated the switchboard, and trained relief operators, and Wells v. Wells, Ky., 293 S.W.2d 718, wherein the wife contributed substantial sums of her own money to be used by the husband in the operation of his business, as support for the restoration to her of $8,000. Actually, in the Patterson case the wife worked continuously and contributed her services in helping to create a business, which was afterwards sold and the proceeds of this business were invested in certain property, a portion of which was adjudged to be restored to her. In the Wells case, the wife invested her individual funds in her husband’s business and her money so invested, which was found to have totaled $18,000, was ordered restored to her. Obviously these two cases are not analogous to the one before us.

In the present case appellee did not at any time turn over to appellant any of her separate estate or invest any of her own money in any of the property appellant now owns. True enough, on occasions she bought groceries for family use, clothing for herself and for the children, and also purchased other expendable items. By reason of these expenditures, however, she acquired no interest in appellant’s property. The undisputed evidence in this case affords no basis for restoring to appellee any property or any specific sum of money, because it was conclusively shown appellant paid the entire consideration for the property to which he now has title. See Johnson v. Johnson, Ky., 255 S.W.2d 610; Eckhoff v. Eckhoff, Ky., 247 S.W.2d 374; West v. West, 229 Ky. 125, 16 S.W.2d 781; Duke v. Duke, 198 Ky. 173, 248 S.W. 500; Dunn v. Dunn, 183 Ky. 841, 210 S.W. 943; Anheier v. De Long, 164 Ky. 694, 176 S.W. 195, Ann.Cas.1917A, 1239. The property accumulated by appellant that resulted during the marriage, and its value, was, as shown hereinafter, taken into consideration in awarding alimony. See Fain v. Minge, 241 Ky. 131, 43 S.W.2d 504.

We conclude that portion of the judgment which ordered the restoration of $8,000 in money to appellee out of appellant’s estate, and gave a lien upon appellant’s property to secure payment of this amount, is clearly erroneous.

Appellant next insists the amount granted unto appellee as alimony was grossly excessive. The chancellor found appellant owned the following property valued at the figure opposite each item:

28,000 170-acre Blanton Farm-
24,000 260-acre Wells Farm-
6,500 Personalty-
Total Gross Estate o o ir> o' ts.
Less Total Debts - o o O u-T T*H
$55,500 Total Net Estate .

The chancellor also found that appellant had a six-acre tobacco base, had in 1956 received $3,685.35 as his share for the sale of the tobacco crop, and had sold approximately $12,000 worth of livestock in January, 1957, making his gross income that one year reach $15,685.35.

Appellant appraised his estate as follows:

Blouse at $8,000 or- 9,000
170-acre Blanton Farm- 14,620
260-acre Wells Farm- 14,000
Personalty- 5,500
Total Gross Estate- 44,670
Less Debts- 23,260
Net Estate-$21,410

The lots were purchased for $1,550 and are probably worth that now. The house cost $6,500, according to the cancelled check, but probably has increased some in value since it was bought in 1946. The Blanton Farm was acquired in 1937 at $43 per acre. Appellant claims it is now worth $86 per acre. An adjoining tract was subdivided and sold in 1948 at prices ranging from $33 to $117 per acre. Another farm in the neighborhood, of the same character and quality as appellant’s, was sold at auction in 1956 at $75 per acre but was resold at auction in 1957 at only $65 per acre.

One neighboring landowner appraised the Blanton Farm at $95 to $100 per acre, while another appraised it at $100 per acre. One of appellee’s witnesses estimated its value at $200 per acre, while admitting in the same breath that there was very little difference between appellant’s farm and the one near by that sold for $65 per acre in 1957. The other witness for appellee also placed the value of the land at $200 per acre, giving no basis for such an opinion. The chancellor found the value of this farm to be $164 per acre, and gave no explanation for this estimate.

As to the Wells Farm, appellant’s witnesses placed its value at $45 to $50 per acre. Appellant set a valuation on each acre of $50. Appellee’s two witnesses placed its value at $85 and $90 per acre. The chancellor found the value of this farm to be $2 more per acre than the highest estimate made by a witness of appellee’s. The findings of fact are silent as to how the chancellor arrived at such an estimate.

Having valued the assets in the manner mentioned, the chancellor found appellant’s debts amounted to $15,000, of which $3,000 was owed to appellant’s daughter who lives with him. Appellant testified, and his testimony was not denied, that he owed a total of $23,260. No reason is advanced in the chancellor’s finding to support his conclusion that the $15,000 figure is the correct one.

Viewing this case as a whole it appears that, in order to arrive at the amount of alimony appellant should pay, the chancellor in his findings of fact raised the value of appellant’s assets and at the same time lowered the sum total of his liabilities, without adequate evidentiary support. However, under the evidence presented the majority of this Court concludes the award of $13,000 as alimony to appellee is a just one and should stand. The writer of this opinion believes the award is excessive when the peculiar circumstances of this case are considered. At any rate it must be said that appellant was placed in an unfair position by the method used in determining his net worth for the purpose of assessing alimony.

Wherefore, the judgment is affirmed in so far as it awarded appellee $13,000 as alimony and reversed to the extent that it granted her $8,000 in money by way of restoration.


source: Caselaw Access Project

author: MILLIKEN, Judge.

license: Public Domain

text:
    Charles ALLEN, Appellant, v. Hester MINIX, Appellee.
    Court of Appeals of Kentucky.
    June 16, 1961.
    Rehearing Denied Nov. 3, 1961.
    J. K. Wells, Paintsville, for appellant.
    Earl Cooper, Salyersville, for appellee.
   MILLIKEN, Judge.

This is an appeal from a judgment of the Magoffin Circuit Court granting $9,000 damages to Hester Minix, appellee, for injuries received while riding as a passenger in an automobile owned by Charles Allen, appellant, and driven by Jean Minix, sister of appellee.

On May 14, 1957, the appellee, Hester, age thirty-five, desired to go from her home at Royalton, Kentucky, to West Liberty, a distance of thirty miles, to see a doctor. Her friend, Charles Allen, appellant (who later married appellee), allowed her to use his car, and Allen asked Hester’s sister, Jean Minix, aged seventeen, to do the driving. Allen knew that the women intended to visit another sister while in West Liberty. Hester paid Allen $4. He bought $2 worth of gasoline for the car and gave Jean Minix $2 to driver Hester because he could not go on the trip with the two women. Although he had no taxicab license, Allen had on a few other occasions transported people for hire, but had always driven the car himself. There was only one licensed taxicab in the community.

When the sisters arrived in West Liberty, the doctor’s office was crowded and they decided to visit another sister who lived a few miles out of town. It was raining and the blacktop road was slippery. When Jean leaned over to tune in the radio, the car began to skid. It slid across the highway. Hester was severely injured in the back. She was treated by Dr. W. K. Mas-sie, an orthopedist in Lexington, as well as by local physicians. She must wear a back brace and is unable to perform any work except light housework.

Allen contends that Hester was the bailee of his car and that he, as owner, in the absence of a showing of agency, is not liable for the negligence of the bailed automobile. He cites Packard-Louisville Motor Company v. O’Neal, 248 Ky. 438, 58 S.W.2d 630; Wolford v. Scott Nickels Bus Company, Ky., 257 S.W.2d 594.

Appellant further contends that even if Jean Minix is considered to be his employee, he is still not liable, because she was under the control of Hester, the bailee of the car. Hickman v. Strunk, 303 Ky. 397, 197 S.W. 2d 442; Tindall v. Perry, Ky., 283 S.W.2d 700.

Hester’s theory is that Allen had hired his car to her and furnished a driver to take her to West Liberty, that she had no authority over the automobile or the driver other than to tell the driver where she wanted to go. Appellee cites 7-8 Huddy, Automobile Law, Sec. 120, p. 305:

“When an automobile is hired and a chauffeur is also furnished by the owner, in whose employ he is and by whom he is paid, and the hirer has no authority over him except to direct him where he wishes to go, the chauffeur is considered the servant of the owner; and the owner, not the hirer, is responsible for his acts of negligence. The principle involved is the same as if the owner of the machine were letting a horse and carriage together with his driver for the hire of another. The fact that the owner only occasionally lets automobiles for hire is not important, for the rule does not depend on the frequency with which the act is done.”

See, also, Bowen v. Gradison Construction Company, 236 Ky. 270, 32 S.W.2d 1014; Wilhelmi v. Berns, 274 Ky. 618, 119 S.W.2d 625; Gerretson v. Rambler Garage Company, 149 Wis. 528, 136 N.W. 186, 40 L.R.A.,N.S., 457.

There are no instructions in the record, but no question is raised about them by the appellant. We must assume therefore that the issues were properly submitted and that the jury concluded that Allen had supplied both the car and the driver to Hester for the $4 consideration. No question is raised about the amount of the judgment.

The judgment is affirmed.


author: PALMORE, Judge.

text:
    Lucille Eaves BURKE, Petitioner, v. Hon. R. C. TARTAR, Judge, Pulaski Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    Oct. 6, 1961.

      F. Selby Hurst, Lexington, for petitioner.
    R. C. Tartar, Somerset, pro se.
   PALMORE, Judge.

By an original proceeding in this court Lucille Eaves Burke seeks an order prohibiting Hon. R. C. Tartar, Judge of the Pulaski Circuit Court, from proceeding to adjudicate a divorce action brought against her in that court by Allen M. Burke. Her claim is that under KRS 452.470, which provides that a divorce action must be brought in the county where the wife “usually resides” if she has an actual residence in this state, the Pulaski Circuit Court does not have jurisdiction.

It appears that on June 22, 1961, the Burkes were living together at Somerset, in Pulaski County. At about 2:30 A.M. on June 23 she gathered up her children and belongings and left home. Some time prior to 9:00 A.M. of the same day she left Somerset by automobile and drove directly to Lexington, in Fayette County, where she forthwith rented and moved into an apartment. Later on during that day she filed a divorce suit against her husband in the Fayette Circuit Court. Meanwhile, however, at 9:30 A.M. he had filed a similar suit in the Pulaski Circuit Court against her. She claims that when this latter action was filed she had abandoned Pulaski County with the intention of taking up permanent residence in Fayette County.

The affidavits submitted to the Pulaski Circuit Court in support of Mrs. Burke’s motion to dismiss on the ground of improper venue do not show whether she had reached Fayette County or, for that matter, had cleared the limits of Pulaski County at 9:30 A.M. on June 23. The motion was overruled and this proceeding followed.

If either of the parties is domiciled in this state and the defendant is before the court by due process, the venue of a divorce action brought within the state is not jurisdictional in the sense that it affects the authority of the court to hear and determine the cause. Cf. Johnson v. Johnson, 1877, 12 Bush 485, 75 Ky. 485; Tudor v. Tudor, 1897, 101 Ky. 530, 41 S.W. 768, 19 Ky.Law. Rep. 747; Kenmont Coal Co. v. Fisher, Ky. 1953, 259 S.W.2d 480, 482; 17 Am.Jur. 476 (Divorce and Separation, § 302); Restatement, Conflict of Laws (1948 Supp.), § 113. See also Stevens, Venue Reform in Kentucky, 40 Ky.L.J. 58 (1951). Otherwise, it could not be held (as it often has been) that venue in such actions may be waived, since jurisdiction, except over the person, cannot be conferred by waiver or consent. Thompson v. Com., 1937, 266 Ky. 529, 99 S.W.2d 705. Thus we do not have before us a truly jurisdictional question.

Uniformly, however, this court has exercised its discretionary powers under Constitution § 110 to consider the merits of venue questions in divorce actions. See Whitaker v. Bradley, Ky. 349 S.W.2d 831; Sebastian v. Turner, Ky.1959, 320 S.W.2d 794; Stewart v. Yager, Ky.1954, 272 S.W.2d 674; Weintraub v. Murphy, Ky.1951, 240 S.W.2d 594; Brumfield v. Baxter, 1948, 307 Ky. 316, 210 S.W.2d 972; Hayes v. Blackwell, 1946, 303 Ky. 548, 198 S.W.2d 203; Thomas v. Newell, 1939, 277 Ky. 712, 127 S.W.2d 610. In such cases the remedy of prohibition is administratively appropriate in that it tends to prevent a disorderly race in two different courts to an unappealable judgment.

It is established that on June 23, 1961, Mrs. Burke began the day as a usual resident of Pulaski County. During the day she changed her place of usual residence to Fayette County. Under fundamental principles, Pulaski County remained her place of usual residence during the period of transfer and until she established her residence in Fayette County. Boyd’s Ex’r v. Com., 1912, 149 Ky. 764, 149 S.W. 1022, 42 L.R.A.,N.S., 580, Ann.Cas.1914B, 481; Rudolph v. Wetherington’s Adm’r, 1918, 180 Ky. 271, 202 S.W. 652; 17 Am.Jur. 464 (Divorce and Separation,, § 289). Since Mrs. Burke made no showing that she was a resident of Fayette County at 9:30 A.M. when the action was commenced in Pulaski County, her motion to dismiss was properly overruled.

The argument is made, however, that the law takes no account of fractions of a day. Miniard v. Lewis, 1924, 206 Ky. 125, 266 S.W. 1055, in which the day of posting was counted as a full day of notice, is cited in support. But this general rule, “like all other legal fictions, is allowed to operate only in cases where it will promote right and justice.” 52 Am.Jur. 340 (Time, § 15). Certainly the law recognizes that two things may be done in succession on the same day. Monroe’s Guardian Ad Litem v. Monroe, 1926, 215 Ky. 440, 285 S.W. 250, 252. Should we apply the fiction to this case the impracticable result would be that Mrs. Burke usually resided in both Pulaski and Fayette Counties for the entire day and both courts would have the venue. .The sword cuts both ways. Our conclusion is that there can be no sound application of the cited rule to this type of case.

It is contended also that certain actions taken by the husband’s counsel in connection with the Fayette proceeding waived the venue question. Prohibition may not be used as a substitute for appeal to question any and every ruling the circuit court makes during the course of a divorce action. Cf. Wiglesworth v. Wright, Ky. 1954, 269 S.W.2d 263, 266. Therefore, we shall not extend our discretionary intrusion into the trial process beyond determining that the circuit court properly decided the principal point.

The temporary order is dissolved and prohibition denied.


text:
    Burton MORELAND, Petitioner, v. Hon. Blakey HELM, Judge, Chancery Branch Third Division Jefferson Circuit Court, et al., Respondents.
    Court of Appeals of Kentucky.
    Oct. 6, 1961.
    Bruce R. Hamilton, La Grange, for petitioner.
    D. L. Frederick, Louisville, for Flora Mae Moreland.
   PALMORE, Judge.

Burton Moreland petitions this court to prohibit Hon. Blakey Helm, one of the judges of the Jefferson Circuit Court, from proceeding to hear and determine a divorce action brought against him in that court by Flora Mae Moreland, who also is made a respondent.

The remedy of prohibition does not lie against one who neither possesses nor proposes to exercise a judicial or quasi-judicial function. Brents v. Burnett, 1943, 295 Ky. 337, 174 S.W.2d 521; 73 C.J.S. Prohibition § 6, pp. 21-22; 42 Am. Jur. 156 (Prohibition, § 17). Cf. annotation, 159 A.L.R. 627, 628. The respondent Flora Mae Moreland, whose only role is that of a litigant in the proceeding sought to be halted, is not a proper party.

The claim against Judge Helm is that the Morelands were never legally married and that hence the circuit court has no jurisdiction to entertain a divorce action between them. On appropriate pleadings and after receiving evidence on this particular defense Judge Helm filed a written opinion concluding that the parties were validly married and indicating his intention to enter an order to that effect and proceed accordingly. The circuit court .record is before us and we are asked to decide this issue on its merits.

That the plaintiff and defendant are married is neither more nor less than one of the necessary elements of any cause of action for divorce. As such, it is no more jurisdictional than is the existence of the particular grounds on which it is alleged that the divorce should be granted. It is the same as if this were a suit on contract and the defendant denied the existence of such a contract, or a will probate proceeding in which the validity of the will were questioned. See, for example, Hensley v. O’Forest, 1950, 313 Ky. 789, 233 S.W.2d 996.

“Objections relating to the cause of action * * * differ in no essential respect from other nonjurisdictional matters. It is imperative, of course, that the cause of action presented to the court for its determination fall within a class over which it may rightly exercise jurisdiction. But jurisdiction does not depend upon the existence or validity of the cause of action. * * * If the court has the requisite power over the subject matter and the parties nothing further is required. The debt or claim upon which the action is based may not be a natural or subsisting one but that does not defeat jurisdiction nor invalidate the judgment founded thereon.” Freeman on Judgments, Vol. 1, § 363, p. 757.

In another opinion handed down today, Burke v. Tartar, Ky., 350 S.W.2d 146, we discussed the propriety of prohibition as a remedy to test nonjurisdictional questions in a divorce case. See also Rowley v. Lampe, Ky.1960, 331 S.W.2d 887, 888, and Wiglesworth v. Wright, Ky. 1954, 269 S.W.2d 263, 266. It was concluded that it is an appropriate procedure for the purpose of settling venue. Burke v. Tartar, supra. Though in both the Rowley and Wiglesworth cases nonjuris-dictional questions not involving venue were considered on the merits, in order to prevent the indiscriminate use of prohibition as a substitute for appeal sound discretion requires that in such cases the remedy be restricted to potential errors of an extraordinary nature. The question in this case may be rather unusual, but it is of ordinary gravity. An incorrect ruling on it will be no more harmful to the petitioner than would an incorrect judgment on the grounds for divorce. And even though an erroneous divorce decree cannot be reversed on appeal, whether it is in fact erroneous may be considered on review of the other aspects of the judgment. McQueen v. McQueen, Ky.1956, 294 S.W.2d 75.

We are therefore of the opinion that this is not a proper case for the remedy of prohibition.

The temporary order is dissolved and prohibition denied.


author: CULLEN, Commissioner.

text:
    Earle V. POWELL (formerly Jo M. Ferguson), Commissioner of Economic Security, Commonwealth of Kentucky, Appellant, v. Eugene BINGHAM, Appellee.
    Court of Appeals of Kentucky.
    Oct. 6, 1961.

      Paul E. Tierney, Forest Smith, Clarence E. Powell, Dept, of Economic Security,. Erankfort, for appellant.
    Charles B. Amis, Barbourville, for ap-pellee.
   CULLEN, Commissioner.

The Appeal Board of the Department of Economic Security upheld the decision of .a referee denying the application of Eugene Bingham for aid for his dependent children under KRS Ch. 205. The ground of denial was that Bingham was not incapacitat•ed within the meaning of KRS 205.010(5). Upon appeal by Bingham to the circuit court judgment was entered reversing the order ■of the board and directing that Bingham’s ■children be added to the rolls of those re•ceiving aid as of the date the appeal was first set for hearing in the circuit court. 'The appeal here is by the Commissioner of .Economic Security from that judgment.

The primary contention of the appellant is that there was sufficient probative evidence to support the finding of the Appeal Board that Bingham was not incapacitated, .and therefore the circuit court erred in setting aside the order of the board. See KRS .205.230(5). The record sustains this contention.

The Appeal Board had before it the reports of three doctors. One found Bing-"ham to be suffering from several ailments, .some of which would be correctible by surgery. It w'as this doctor’s opinion that ■even without the corrective surgery Bing-'ham was able to do light work. A second doctor reported that Bingham had a mastoid ■condition such as to render him unable to do any work. The doctor recommended .an operation. A third doctor, appointed by the Appeal Board to make a special examination (about one year after the second ■doctor’s examination) reported that he found no evidence of a disabling mastoid condition and there was no need for surgical treatment. Under the decision in Barnes v. Turner, Ky., 280 S.W.2d 185, the Appeal Board was warranted in finding from this evidence that Bingham was not incapacitated. It is our opinion, therefore, that the court erred in setting aside the order of the board.

We do not reach two other questions raised by the appellant, as to whether the court had power to order the children placed on the aid rolls without there having been a determination by the department of eligibility qualifications other than parental incapacity, and as to whether the court lawfully could order retroactive payments of aid.

The judgment is reversed with directions to enter judgment sustaining the order of the Appeal Board.


author: STANLEY, Commissioner.

text:
    Kenneth W. ETHERTON, Appellant, v. William L. JONES, Warden, Kentucky State Penitentiary, Appellee.
    Court of Appeals of Kentucky.
    Oct. 6, 1961.

      Kenneth W. Etherton, pro se.
    John B. Breckinridge, Atty. Gen., Robt. L. Montague, III, Asst. Atty. Gen., for appellee.
   STANLEY, Commissioner.

The petition of. the appellant, Kenneth W. Etherton, against the warden of the Eddyville Penitentiary for a writ of habeas corpus and release from custody under it was dismissed by the circuit court on the ground that the petition did not set forth facts sufficient to show the petitioner was entitled to the writ.

The unverified petition states that the petitioner was being confined in the penitentiary under a life sentence of the Daviess Circuit Court upon conviction of storehouse breaking and as an habitual criminal; that he was denied effective assistance of counsel, had been twice put in jeopardy for the same crime, and that he was “denied a fair and impartial trial.” No part of the record of the trial which resulted in petitioner’s conviction or affidavit in support of the allegations was filed.

On the appeal the prisoner repeats the general allegations with the additional one that he had been denied a sanity hearing. Manifestly, these broad statements cannot be considered as evidencing the right to a writ of habeas corpus. Even if they should be sustained, the grounds would be only errors reviewable on an appeal of the judgment of conviction and would not render the judgment void. Habeas corpus proceedings reach only void judgments. Brown v. Commonwealth, Ky., 243 S.W.2d 88S.

The appellant contends that the statute under which he was tried as an habitual criminal, KRS' 431.190, is unconstitutional because it permits evidence of crimes other than the one upon which the accused person is being tried and, therefore, violates his constitutional right to a trial free from prejudice. The constitutionality of the statute has been many times upheld upon various challenges. A late case which deals with the habeas corpus proceeding on the same ground is Holt v. Commonwealth, Ky., 310 S.W.2d 40, certiorari denied 357 U.S. 909, 78 S.Ct. 1154, 2 L.Ed.2d 1158.

Judgment is affirmed.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Leonard and Sally BARGO and Union National Bank of Barbourville, Appellees.
    Court of Appeals of Kentucky.
    Oct. 6, 1961.
    Jo M. Ferguson, Atty. Gen., F. D. Curry, Asst. Atty. Gen., James J. Shannon, Jr., Frankfort, for appellant.
    Earle L. Cole, Barbourville, for appellees.
   STEWART, Judge.

Appellant, Commonwealth of Kentucky, Department of Highways, on October 24, 1958, instituted this proceeding in Knox County Court to condemn land owned by Leonard Bargo and his wife, Sally, ap-pellees herein. The land is to be used for proposed highway construction. Union National Bank of Barbourville, also an ap-pellee herein, was joined as a party, because it had a lien on the property. The action was prosecuted under KRS Chapter 177. On November 24, 1958, the judgment of the county court was entered, awarding $3,500 to the land owners.

On December 18, 1958, appellant attempted to appeal the judgment to the Knox Circuit Court by filing therein a certified copy of the county court judgment, a statement of appeal, and its exceptions to the commissioner’s award. See KRS 177.087.

On January 8, 1959, appellees moved the circuit court to dismiss this attempted appeal and that court did so on January 20th, assigning as the basis therefor the grounds set out in appellees’ motion, which were:

1. The $3 tax levied by KRS 142.011 (1) has not been paid and such payment is a prerequisite to the right to appeal to the circuit court; and

2. A bond pursuant to CR 72.01 has not ■been executed or filed and failure to execute and file such bond within the period of time stated in the rule left the circuit court without jurisdiction to hear the appeal.

The Commonwealth on this appeal argues that it need not comply with either of these provisions.

The case at bar is controlled in every respect by Com., Dept. of Highways v. Hale et al., Ky., 348 S.W.2d 831, a very recent opinion of this Court. In the latter case, which dealt with the two points now before us, we held as to the application of KRS 142.011(1) to the Commonwealth that, since the statute did not specifically require the Commonwealth to pay the tax in question, it was protected from the statute’s requirement by sovereign immunity.

On the other hand, the Hale case determined that the Commonwealth could be required, if motion were seasonably made that it do so, to execute the bond specified by CR 72.01; but that it was error to dismiss the appeal where no bond had been made, if all the steps set forth in KRS 177.087 had been taken so as to give the circuit court jurisdiction of the case.

In the case at bar, which is also a proceeding under the foregoing statute, the Commonwealth, within 30 days, filed with the clerk of the circuit court a certified copy of the judgment, a statement of the parties to the appeal, and its exceptions to the award made by the commissioners. Thus, it fully complied with the provisions of KRS 177.087, with the result that the circuit court acquired jurisdiction of this case.

In discussing the erroneous action of the trial court in dismissing the proceeding in the Hale case this Court said: “In the case at bar the court had obtained jurisdiction and the appeal had been perfected within the thirty days allowed. If appellees had desired a bond to be executed by the Commonwealth, that matter could have been reached by a proper motion, but the failure to execute the bond is not grounds for dismissal in the absence of an order by the court requiring the Commonwealth so' to do. The court therefore erred in dismissing the appeal for failure to pay a tax under KRS 142.011(1), and to execute bond under CR 72.01, because neither was a prerequisite step in perfecting the appeal under the special statute, KRS 177.087.” This ruling governs the facts in this case.

Wherefore, the judgment is reversed.


author: PER CURIAM.

text:
    Charles (Red) WILLIAMS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 6, 1961.
    William R. Forester, Barbourville, for appellant.
    John B. Breckinridge, Atty. Gen., Robert L. Montague, III, Frankfort, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant, Charles (Red) Williams was convicted in the Knox Circuit Court of selling intoxicating beverages in dry local option territory and was fined $100 and sentenced to 60 days in jail.

We have concluded that the trial court acted within the bounds of reasonable discretion when it refused to grant appellant a continuance under the circumstances shown.

The motion for appeal is overruled and the judgment stands affirmed.


author: CLAY, Commissioner. MILLIKEN, J.,

text:
    Overton HOLT, Appellant, v. WEST KENTUCKY COAL COMPANY, Appellee.
    Court of Appeals of Kentucky.
    Oct. 6, 1961.
    Laurence T. Gordon, Madisonville, for appellant.
    Thomas A. Mitchell, Gordon & Gordon & Mills, Madisonville, for appellee.
   CLAY, Commissioner.

This workmen’s compensation case presents the question of the amount which properly may be awarded to an employee who has lost the lower part of his leg by amputation as the result of an industrial accident. The circuit court confirmed the Board’s award, which limited compensation under the provisions of KRS 342.105 and 342.110. The employee appeals on the ground that he should have been allowed total and permanent disability benefits under KRS 342.095.

The basic problem is an old and difficult one. Because of legislative amendments and the rather sinuous development of our case law under the above statutes, the solution of the problem is not as clear-cut as it once might have been.

As a result of an accidental injury, the employee’s left leg was amputated about four inches below the knee. The Board made the following findings: (1) the in jury was confined to the leg, but (2) the employee was totally disabled from performing the only kind of work for which he was trained. The question is whether the Board should award the employee compensation for total disability under KRS 342.-095 or was required to limit the award under the provisions of KRS 342.105 and 342.-110. The issue before us is one of law.

KRS 342.095 is a general statute providing a percentage formula for determining the amount of an allowable award where an injury or occupational disease “causes total disability for work”.

KRS 342.105 is in the class known as “schedule benefits” statutes. (More accurately descriptive would be “specified injury”.) It provides a schedule of benefits for the loss of designated body members. For example, it provides: “(19) For the loss of a leg, 65 percent of the average weekly wages during 200 weeks.” As an original proposition, it would seem the intent of the legislature in the enactment of KRS 342.105 was to fix arbitrarily the amount of the award for injuries resulting in the loss of a member, regardless of the extent of disability. If this were not so, there would be no reason for the statute.

We have, in numerous cases, assumed such to be its meaning. In Black Mountain Corporation v. Letner, 303 Ky. 807, 199 S.W.2d 611, 612, it was stated flatly: “Where there is an actual severance the recovery is limited to the amount specified in the specific schedule statute.”

Strangely, that was not a severance case. Even more strangely, the parties have not cited, and we have been unable to discover by extensive research, a single Kentucky severance case wherein we have considered whether or not KRS 342.105 (or its predecessors) exclusively fixed the benefits allowable for such an injury. However, as indicated in the Black Mountain Corporation case, just cited, apparently we were committed to this theory. It is generally followed in other jurisdictions where there is a clean-cut loss without complications. 99 C.J.S. Workmen’s Compensation § 311, page 1123; Coker v. Arinco Drainage and Metal Products Co., 192 Tenn. 10, 236 S.W.2d 980; New Amsterdam Casualty Co. v. Brown, 81 Ga.App. 790, 60 S.E.2d 245; Smith v. Industrial Commission, 69 Ariz. 399, 214 P.2d 797; Hlady v. Wolverine Bolt Co., 325 Mich. 23, 37 N.W.2d 576; Lappimen v. Union Ore Co., 224 Minn. 395, 29 N.W.2d 8; Raffual v. Oneida Bleachery, Inc., 280 App.Div. 1007, 116 N.Y.S.2d 760; Roular v. Henry Forge & Tool Co., 232 App.Div. 857, 249 N.Y.S. 17; Dowling v. Church E. Gates & Co., 253 N.Y. 108, 170 N.E. 511.

The reason for this construction of such a statute is thus stated in Larson, The Law of Workmen’s Compensation, Volume 2, Section 5810 (page 42):

“This (the theory of schedule benefits) is not, however, to be interpreted as an erratic deviation from the underlying principle of compensation law — that benefits relate to loss of earning capacity and not to physical injury as such. The basic theory remains the same; the only difference is that the effect on earning capacity is a conclusively presumed one, based on observed probabilities in many similar cases, instead of a specifically proved one, based on the individual’s actual wage-loss experience. The effect must necessarily be a presumed one, since it would be obviously unfair to appraise the impact of a permanent injury on earning capacity by looking at claimant’s earning record for some relatively short temporary period preceding the hearing. The alternative is to hold every compensation case involving any degree of permanent impairment open for a lifetime, making specific calculations of the effect of the impairment on claimant’s earnings each time claimant contends that his earnings are being adversely affected. To avoid this impossible administrative task, the apparently cold-blooded system of putting average-price tags on arms, legs, eyes and fingers has been devised.”

See Huggins v. B. C. Farrell & Co., 169 Tenn. 77, 82 S.W.2d 870, 871; Eubanks v. Barnsdall Oil Co., 169 Okl. 31, 35 P.2d 873; Shaw v. Rosenthal, 112 Ind.App. 468, 42 N.E. 383; Thatcher v. Weinstein, 154 Pa.Super. 368, 35 A.2d 549.

Although it did not involve the physical loss of a member, we have a leading case in Kentucky on the restrictive character of this statute. In Kentucky Cardinal Coal Corporation v. Delph, 296 Ky. 295, 176 S.W.2d 886, the employee’s hand and fingers were crushed. The Board awarded him compensation for total and permanent disability, which was established by the proof. It was held that since the injury was limited to the hand and fingers, the award was limited by KRS 342.105 and the Board could not properly make an award under KRS 342.-095. Thus the exclusive character of this statute was established in Kentucky.

Plausible arguments are made against such a construction of the statute. The first is that it is a permanent partial disability statute and consequently does not apply if the employee is totally and permanently disabled. It is pointed out that the heading of this statutory section is “Compensation for Permanent Partial Disabilities”. Such heading, however, does not constitute any part of the law. KRS 446.-140. The body of the section says nothing about “partial disability”.

It is true that the following section, KRS 342.110(1), does begin with this language: “In all other cases of permanent partial disability * * *.” (Our emphasis.) This would seem to indicate the legislature recognized KRS 342.105 as relating only to “permanent partial disability”.

It is argued that if the Board finds the employee is only partially disabled (regardless of the extent), the “schedule benefit” statute applies, but if the Board finds the employee is totally and permanently disabled, it does not apply. Nothing in KRS 342.105 points to such an interpretation. If the “permanent partial disability” aspect has any significance, it may be said that the legislature was arbitrarily placing all severance cases in this category regardless of the actual extent of disability. We return to our original proposition that there is no justification for this statute in its present or past form unless it established, finally and exclusively, what may be termed a fixed and final valuation on the loss of a member. (Larson refers to it as a “price tag”.) We do not believe the legislature, by another statute, intended to change the accepted purpose and function of KRS 342.105.

The next argument is that the legislature in 1948 made a significant amendment to this statute. Theretofore it had provided that the compensation should be “in lieu of all other compensation” (with an exception not important here). In 1948 the legislature deleted the quoted language. On the face of it, this would seem to alter the exclusive nature of that law.

The difficulty with this position is that if such an interpretation is correct, the legislature simply emasculated the whole statute. It would have no significance whatever unless the limitations fixed therein governed the amount of the award. If the employee is to be compensated solely on the basis of the extent of his disability, it is wholly immaterial whether that disability results-from an injury to the neck, an occupational disease of the lungs, or the loss of a leg. Perhaps this is only fair and the legislature should so provide. The trouble is that the legislature has selected a special class of injuries which involve the loss of a member (or the loss of certain specified senses) and treated this type of injury in a special' manner without regard to disability. The-exclusive character of this statute is what gives it significance.

It may also be noted that when the words-“in lieu of all other compensation” were-deleted from the statute in 1948, additional language was added which would have re-suited in awkwardness of expression unless the quoted words were omitted. It may be said that the change made by the legislature was one of form rather than substance. We must again observe that unless this statute is exclusive, it is without meaning.

We now come to a most persuasive argument on behalf of the employee. It is that under our case law interpreting KRS 342.110 prior to 1960 (and by virtue of a 1960 amendment), an employee who has suffered an injury to a member may be awarded an amount substantially greater than if he has actually suffered a loss of that member by amputation, even if the disability is the same, which simply does not make much sense. True, that is the situation as it has existed (under some of our cases) and as it now exists. Perhaps it is indefensible from the standpoint of policy. Our only answer is that the legislature writes the compensation laws. As much as we might wish, we cannot change what the legislature has written in the interests of what we consider fair. However, because the award in this case was in part based upon KRS 342.110, we must decide whether its liberalized provisions encompass the particular loss of a member here involved.

Since 1946 KRS 342.110 has been correlated with KRS 342.105. (Originally the provisions of both statutes were combined in one. Section 4899, Carroll’s Kentucky Statutes, 1936.) The former provides a compensation formula for “permanent partial disability” other than that specified in the latter. Prior to 1960, KRS 342.110 provided without qualification:

“In no event shall compensation for an injury or disability to a member ex- ■ ceed the amount allowable for the loss of such member.” (Under KRS 342. 105.)

The Board and this Court soon departed from this mandate. In Department of Mines & Minerals v. Castle, Ky., 240 S.W. 2d 44, the employee injured his leg, which resulted in its stiffening and shortening. He was totally and permanently disabled from performing the work for which he was trained. We held that if the Board finds total and permanent disability, KRS 342.-105 and 342.110 have no application regardless of whether the nature of the injury falls within the scope of those statutes. In that case we quoted the following from the Board’s opinion (at page 45 of 240 S.W. 2d):

* * * jn instances where the location of an injury is upon or within a member, but which extends beyond the member so that it adversely affects a workman’s general ability to labor, or which limits his occupational opportunities to obtain the kind of work he is able to do, a recovery on the basis of the loss of a member is inadequate, since the disability is greater than the loss of a member and is not simply an injury to a member.” (Our emphasis.)

This language, as a reason for not applying the restrictive provision of KRS 342.-110, cannot survive careful analysis. In the first place, it evades the question. The issue did not involve the adequacy of compensation. The question was whether the Board was required to follow the specific directions of the legislature and apply the designated formula in making the award, regardless of the disability.

In the second place, the Board slipped into the trap of confusing “disability” with “loss” and “injury”. Just how can “disability” be “greater than the loss of a member” (or the same or less for that matter) or something more (or less) than “injury to a member” ? The concepts cannot be equated. Disability, in the Workmen’s Compensation law, is the extent to which earning capacity is impaired. See Anderson v. Northwestern Motor Co., 233 N.C. 372, 64 S.E.2d 265, 266; and Dail v. Kellex Corp., 233 N.C. 446, 64 S.E.2d 438, 440. True, the “loss” or “injury” constitutes the basic cause of the disability. But the latter simply cannot be measured in the terms of the former.

The foregoing' criticisms pale to insignificance when we examine the net effect of this quoted language. It apparently says everything, and it says nothing. Every compensable injury “adversely affects a workman’s general ability to labor” or “limits his occupational opportunities”. That is what causes the employee’s disability. That is why he is allowed workmen’s compensation. But the legislature apparently chose to predetermine the maximum extent of disability for losses of or injuries to body members.

Disability for which compensation is normally allowed is for disability to the body as a whole which impairs the employee’s ableness to labor, thereby reducing his earning capacity. Insofar as compensation is concerned, there is no such thing as disability to a member of the body. Baier v. Schnell, Ky., 232 S.W.2d 587. Consequently, if an employee injures a leg, he is compensated because that injury, actually or presumptively, adversely affects his capability to work. But the legislature, by the restrictive language of KRS 342.110, in effect had said that this disability test should not be applied beyond the limits prescribed for the loss of a leg. Simply restating the test which would apply in the absence of the restrictive language furnished no basis for skirting the prohibition.

However, the Castle case has been followed. The theory that the Board may find total disability and thereby bypass KRS 342.110 (relating to an injury rather than a loss) has been perpetuated in Hardy Burlingham Mining Co. v. Sawyer, Ky., 254 S.W.2d 350, and Clark v. Gilley, Ky., 311 S.W.2d 391. Such a view was not accepted in at least two other cases involving substantially the same problem. In Patton v. Travis, 298 Ky. 678, 183 S.W.2d 956, the employee’s hand was so crushed as to cause a permanent injury. The Board awarded total and permanent disability benefits. We reversed on the ground that the injury did not affect his body as a whole or his ability to labor to a greater extent than if his hand had been severed. Therefore his compensation was limited to the allowance specified in KRS 342.105. We there said (at page 957 of 183 S.W.2d) :

“To be entitled to greater compensation for a mere injury to his hand than for a complete severance thereof the appellee should have evidence to show, or from which it may reasonably be inferred, that his injury is of such nature as to more adversely affect his body, or his mind, or his sense of pain, or his ability to labor, or his opportunity to obtain employment, than would be the case had there been a complete severance.(Our emphasis.)

Similarly in Caney Creek Mining Co. v. Rager, Ky., 264 S.W.2d 677, we held that where the injury is limited to a member, the award must be limited under the provisions of KRS 342.105 and 342.110, despite the fact that the disability extends to the body as a whole (which is true in every compensation case). Here we said what has heretofore been stated in this opinion, i. e., any compensable injury affects the body as a whole (and impairs the employee’s ability to work) but KRS 342.105 and 342.110 sought to limit compensation according to the nature of the injury and not the extent of the disability.

From the above discussion of our injury cases, it is regrettably clear that, at the time of the accident here involved, our law was in a state of confusion with respect to the meaning of the restrictive provision of KRS 342.110 (which sought to limit compensation for injuries as compensation for losses was limited by KRS 342.105). The employee’s position is that we should apply the reasoning of our most liberal injury cases to the loss cases. There are three reasons why this should not be done. The first is that it has never been done in Kentucky. The second is that, as we have heretofore pointed out, the generally accepted purpose of a “schedule benefits” statute such as KRS 342.105 is to place arbitrary valuations (or, as Larson puts it, “price tags”) on specific body members. Unless the schedule is exclusive, it is meaningless.

The third reason is that the legislature, though from time to time amending KRS 342.110 in an attempt to cope with this problem as it relates to injuries rather than losses, has not made a change in this respect in KRS 342.105 since its original enactment. It is still the same specific injury — fixed benefits statute as it was in the beginning.

It is significant that in 1960 the legislature amended both KRS 342.0P5 and 342.-110 to provide:

“Compensation for an injury or disability to a member shall not exceed the amount allowable for the loss of srtch member unless the effects of the injury or disability extends beyond the member to the body as a whole so that it adversely affects a workman’s general ability to labor, or limits his occupational opportunities to obtain the kind of work he is customarily able to do.”

(The use of the word “disability” twice in this quoted paragraph is meaningless and confusing. As pointed out earlier in this opinion, the Workmen’s Compensation Law does not and could not sensibly allow •compensation for “disability to a member”. “Disability” relates to the body as a whole.)

The language after the word “unless” is in substance the identical language from the Board’s opinion in Department of Mines & Minerals v. Castle, Ky., 240 S.W.2d 44, 45 (which we have quoted on page 158 of this opinion). This liberalizing language would seem to emasculate the apparent limitations of those sections (and therefore extinguishes the problem in the injury cases which we have above discussed). The legislature did not, however, add a similar provision to KRS 342.105.

The end result is that an employee under the present law may be awarded greater compensation for disability arising from an injury to a member than is allowable for the loss of that same member. Under some of our cases that was the law prior to 1960, and clearly it is the law now. Even if our sense of fairness and consistency is jolted by this result, it is not in our province to repeal KRS 342.105. The history of the changes in the compensation law has been one of compromises, which necessarily have created inconsistencies, so the courts are not warranted in rewriting the law simply because it contains inconsistencies. This we would do if we adjudged that the total compensation for the loss of a limb specified in this section is not restricted to the fixed formula therein prescribed.

It is therefore our conclusion that in all cases in which the employee’s disability is caused solely by severance of a member of the body, KRS 342.105 prescribes the exact formula for the award of compensation, and the Board may neither increase nor decrease that amount regardless-of the actual disability resulting therefrom.

This brings us to the only other question presented in this case, which involves the amount of the award. While the Board properly took the view that even though the employee was totally disabled he was not entitled to compensation under the total disability statute, KRS 342.095, it allowed him compensation under 342.110 (which relates to partial permanent disability resulting from an injury other than the loss of a member under KRS 342.105).

The reason the Board followed this course is because it found the employee lost more than a foot but less than a leg. It was therefore determined that since the loss did not precisely fit any category specified in KRS 342.105 it fell into the class of “other permanent partial disability” under KRS 342.110. In this line of reasoning the Board apparently intended to follow the cases of Mills v. Mills & Connelly, 214 Ky. 675, 283 S.W. 1010 and Poquet v. Borderline Collieries, 308 Ky. 241, 213 S.W. 2d 607. While the opinion in the first case (extensively quoted in the second) did purport to place this kind of injury in the “permanent partial disability” class, both of those cases held that the amount of the award must be limited by the schedules fixed in what is now KRS 342.105.

The Board in the present case completely departed from KRS 342.105 and made its award under a formula prescribed in KRS 342.110. (This award was $27 per week for 55 weeks and $8.40 a week for 345 weeks.) The employee contends that the award should have been for 450 weeks instead of the total of 400.

It is our view that since this is a severance case, it is governed entirely and exclusively by KRS 342.105, not by 342.110. While this was the effect of the rulings in the two cases we have just above cited, we think those cases unnecessarily limited the amount of compensation when it was decided that the loss of more than a foot was less than a leg. In our opinion if any substantial part of the employee’s leg is amputated, he has lost his leg. In the present case the amputation was four inches below the knee. This constitutes loss of the leg and the employee is entitled to the compensation prescribed for such loss. To the extent that the cases of Mills v. Mills & Connelly, 214 Ky. 675, 283 S.W. 1010 and Poquet v. Borderline Collieries, 308 Ky. 241, 213 S.W.2d 607 are in conflict with this conclusion, they shall no longer be followed.

The excellent opinion of the trial judge conformed to the views we have expressed with respect to the principal problem involved in this case, but for the error of the Board in fixing the amount of the award the judgment must be reversed.

The judgment is reversed with directions to remand the case to the Workmen’s Compensation Board for the entry of an award under KRS 342.105 consistent with this opinion.

MILLIKEN, J.,

dissents from so much of the opinion as decides that KRS 342.105 fixes the amount of compensation allowable, it .being his opinion that this statute simply prescribes the minimum allowance for the loss of a member and that the actual disability of the employee may be inquired into for the purpose of determining if he is entitled to additional compensation.


text:
    Delmar DRAUGHN, Appellant, v. Bruce MARTIN, Appellee.
    Court of Appeals of Kentucky.
    Oct. 6, 1961.

      Clark Pratt, Hindman, H. B. Noble, Hazard, for appellant.
    D. G. Boleyn, Hazard, for appellee.
   MILLIKEN, Judge.

The appellant, Delmar Draughn, present tax commissioner of Knott County, defeated the appellee, Bruce Martin, in the May, 1961, primary election by 1,850 votes for the Democratic nomination for the office. Martin contested the nomination asserting that Draughn violated the Corrupt Practices Act (KRS, Chapter 123) by some of his newspaper and radio advertising. The trial court agreed with Martin’s contention and adjudged him the nominee of the Democratic Party instead of Draughn.

Pertinent portions of some of the Draughn advertising inserted in The Mountain Messenger and The Hindman News follow:

“ * * * and remember when the commissioner used to make you pay taxes on your livestock, chickens, farm equipment and dogs — -You have not paid taxes on those things since I have been in office and will not if re-elected.”

Apparently referring to Martin who at one time had been tax commissioner:

“ * * * you will remember him when he was tax commissioner and a deputy would come around and make you list and pay taxes on just about everything from a ‘Milk Bottle to the Shroud,’ such things as chickens, cattle, hogs, mules, horses, farm equipment and even dogs. Those things are not taxed to you under me and if re-elected you don’t have to worry. I only mention these things to just remind you so you will be well informed before you vote. Just be careful you might make a bad mistake. Taxes are now low, they are fair and equal, you might vote yourself more and higher taxes.”

The gist of the Martin complaint is Draughn’s promise to the voters not to tax taxable property — “chickens, cattle, hogs, mules, horses, farm equipment and even dogs.”

Since all property is subject to taxation except that exempted by Section 170 of the Constitution which excepts (among other property not here involved) “household goods and other personal property of a person with a family, not exceeding two hundred and fifty dollars ($250.00) in value,” the advertised promise not to tax hogs, horses, farm equipment, etc., was not proper. While the economy of Knott County may not be built around agriculture and, as a consequence, there may be relatively little livestock or farm equipment available there for taxation, there undoubtedly is some such property in the county. In any event, it was improper to promise not to tax it.

Taking the view that the appellant, Draughn, had violated the Corrupt Practices Act, KRS 123.040, the trial court felt constrained to decide that Draughn’s advertising was within the scope of those decisions of this Court such as Sparks v. Boggs, Ky., 339 S.W.2d 480, and Kluemper v. Zimmer, 240 Ky. 225, 41 S.W.2d 1111, where the candidates offered to serve for reduced salaries or none at all if elected, and we held such promises violations of the Act.

In Walker v. Taylor, 230 Ky. 689, 20 S. W.2d 727, a candidate for sheriff promised to pay the taxes, if elected, of all widows and orphans whose property was taxed less than $20, which we concluded was a violation of the Corrupt Practices Act, tantamount to bribing the voters. The injection into elections of such issues tends to divert the attention of the voters from the merits or fitness of the respective candidates to a consideration of the immediate financial benefit which may accrue to the voters, and thus undermines the democratic process.

Whether Draughn’s advertising by promising to continue to absolve the electorate from paying taxes on certain taxable property is analogous in its political and economic effect to promising to serve without pay if elected, so as to bring Draughn’s conduct within the doctrine of the cases heretofore mentioned, is the question before us. It is not a question of ascribing fraudulent intent to Draughn who appears to have been merely an overzealous campaigner; it is a question solely of whether such advertising violates the Corrupt Practices Act in any way regardless of the intention of the candidate.

Regardless of whether Draughn’s salary would be reduced by the promise he has made under the salary compensation formula of KRS 132.590, his promise not to tax taxable property offers to reduce pro tanto the taxes each individual must pay and thus makes an offer to the voter of primary gain just as effectively as a promise to serve at reduced pay if elected. 43 Am.Jur. Public Officers, Sec. 374, p. 159.

The judgment is affirmed.


author: MOREMEN, Judge.

text:
    Dewey ENGLAND, Appellant, v. General COFFEY, d/b/a Coffey Motor Company, Appellee.
    Court of Appeals of Kentucky.
    Oct. 6, 1961.
    William S. Tribell, Middlesboro, for appellant.
    Thomas Z. Board, Middlesboro, for ap-pellee.
   MOREMEN, Judge.

Appellant, Dewey1 England, filed a complaint in the Bell Circuit Court which was dismissed by the court on the ground that the averred cause of action should have been presented as a compulsory counterclaim (under CR 13.01) in a previous suit by appellee, Coffey Motor Company, against appellant.

Appellant purchased from the Coffey Motor Company a truck for the sum of $11,-828.55. The regular down payment on such a purchase would be $4,342.55. Appellant did not have that much cash and an agreement was worked out between him and the dealer whereby appellant made a down payment of $600 and executed a note for the balance of the down payment. Appellant defaulted in the payment of the note and ap-pellee filed an action in the Bell Circuit Court to enforce the collection of it and in addition sued for a small amount of money due for services and repairs on the same truck. Appellant did not defend the action and a judgment by default was entered. Thereafter appellant filed this suit alleging breach of warranty in the sale of the truck and sought to recover damages therefor. Upon motion of appellee the court dismissed the action, as stated above, on the ground that the claim should have been presented as a compulsory counterclaim in the previous action.

CR 13.01 reads:
“A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction, except that such a claim need not be so stated if at the time the action was commenced the claim was the subject of another pending action, and except that any counterclaim against the Commonwealth of Kentucky or any agency or political subdivision thereof may be stated at the pleader’s option.”

The foregoing rule created a new procedural method. Formerly, one could refrain from pleading a matter as a counterclaim and thereafter make it the basis of an independent suit. Conley v. Marshall, 304 Ky. 745, 202 S.W.2d 382. Although it has long been a general policy of the law that a multiplicity of suits should be avoided — our rule of optional counterclaim was an exception and a defect. CR 13.01 has corrected it. As pointed out in Clay, CR 13.01, author’s comment 2:

“In effect the Rule requires a party to file counterclaims formerly permitted by CC 95(3) and 96(1). * * *
“The counterclaim must be asserted only if it arises out of the transaction or occurrence that is the subject matter or foundation of the opposing party’s claim. If it is not presented by pleading the matter will be res judicata, and it would not support an independent action.” Pennsylvania R. Co. v. Musante-Phillips, Inc., D.C.Cal., 42 F.Supp. 340.

So, if this suit for damages resulting from breach of warranty should have been filed as a counterclaim in the original suit by appellee to collect the note, then appellant’s claim is now barred under the doctrine of res judicata.

We are not concerned with any of the exceptions contained in CR 13.01. We need only determine whether appellant’s claim arose “out of the transaction or occurrence” that was the subject matter of the first suit.

In Hurst v. Combs, 17 Ky.Law Rep. 84, 30 S.W. 416, in an action on a note it was held that a counterclaim alleging plaintiff’s failure to deliver the goods for which the note was given and the damages resulting to defendants therefrom properly set forth a counterclaim because it arose out of the same transaction. That case was decided under the old Code but the question involved was whether the counterclaim arose out of the same transaction.

Our section CR 13.01 is similar to F.R. Civ.P. 13(a), 28 U.S.C.A., and under that Rule it was held in Lesnick v. Public Industrials Corporation, 2 Cir., 144 F.2d 968, in an action on a note given by defendant that a counterclaim for conspiracy to defraud against plaintiff and other persons was a compulsory one. In Pennsylvania R. Co. v. Musante-Phillips, Inc., D.C., 42 F. Supp. 340, it was held that in an action by a railroad to recover freight a counterclaim for damages caused by negligent transportation was a compulsory one.

We believe it is obvious in the instant case that the claim for a breach of warranty arose out of the same transaction in which the note was given and therefore should have been asserted as a counterclaim in the original action.

Judgment affirmed.


text:
    Samuel E. BIVENS, Appellant, v. William L. JONES, Warden, Kentucky State Penitentiary, Appellee.
    Court of Appeals of Kentucky.
    Oct. 6, 1961.
    Samuel E. Bivens, pro se.
    John B. Breckinridge, Atty. Gen., John B. Browning, Asst. Atty. Gen., for appellee.
   STANLEY, Commissioner.

The petition of Samuel E. Bivens seeking release from custody of warden of the Eddyville Penitentiary upon a writ of ha-beas corpus was denied because of the absence of a showing that the judgment under which he was confined is void.

The petition states that upon his conviction of murder in the Daviess Circuit Court petitioner was being confined upon a sentence of life imprisonment. Petitioner charges that the judgment is void because (1) he was insane at the time of his trial, and the State “did not follow the statute law in trying him under those conditions,” and (2) he was not “properly represented by counsel, therefore the court denied him counsel within the meaning of the law.” Upon these grounds petitioner charges that he was denied due process of law and the protection of his constitutional rights. Appellant’s brief, ostensibly prepared by himself, cites United States Supreme Court decisions upon grounds stated.

No copy of the judgment of conviction and no evidence supporting the conclusions stated in the petition were filed. The trial court properly denied habeas corpus upon the unsustained allegations.

Judgment affirmed.


author: MORRISON, Judge.

text:
    George RADOSEVICH, Appellant, v. STATE of Texas, Appellee.
    No. 33584.
    Court of Criminal Appeals of Texas.
    Oct. 18, 1961.
    Ewers, Tootliaker, Ewers, Elick, Jones & Abbott, by O. C. Hamilton, Jr., McAllen, for appellant.
    R. L. Lattimore, Dist. Atty., Roberto Ornelas, Asst. Dist. Atty., Edinburg, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while intoxicated; the punishment, three days in jail and a fine of $50.

Patrolmen Cheshire and Murphy testified that they observed an automobile being driven at a slow rate of speed off on the shoulder of the highway, that they brought it to a halt and observed appellant who was the driver. They stated that as appellant got out of his automobile he fell against the door, that he staggered when he walked, smelled of alcoholic beverages, spoke in a slurred manner, had difficulty in locating his driver’s license and told them that he had just come from his club where he had been drinking. Each officer expressed the opinion that appellant was intoxicated and recounted how they placed him under arrest and carried him to jail.

Appellant, testifying in his own behalf, stated that he had lost a great deal of sleep prior to the night in question, had had one drink of vodka at his club, had gone to his automobile where he slept until he was joined by his companion, and that they were on their way home at the time of his arrest. He denied that he was intoxicated. A member of the law firm who represented appellant testified that he went to the jail later that night and secured appellant’s release on bond and expressed the opinion that appellant was not intoxicated.

The State, in rebuttal, called the jailer who was on duty on the night in question, and he testified that appellant was staggering when he was brought in, smelled of alcoholic spirits, and expressed the opinion that he was intoxicated.

The jury resolved the disputed issue against appellant, and we find the evidence sufficient to support the conviction.

Only one question is raised on appeal, and it relates to jury argument. The bill reflects the following:

“ * * * the attorney for the accused made the following arguments to the jury:
“ ‘We have only the opinion of the officers that the defendant was drunk and certainly the arresting officer could not make up his mind just when the defendant was drunk * * *. There is no evidence of any intoxication tests such as walking a line, picking up coins, blood tests, shine a light in the defendant’s eyes to test the pupil reaction, or the finger to nose test * *
“Whereupon the attorney for the State immediately stated to the jury:
“ ‘Now, this blood test that he mentioned, I want to answer that by saying the defendant did not take a blood test and * * *.’
“This argument was objected to by the Defendant at the time it was made, and, although the objection was sustained, the attorney for the State made the additional argument, to wit:
“ T merely wanted to say he refused to take one when requested.’
“Whereupon, counsel for the Defendant made a motion for a mistrial based upon the foregoing argument, which motion was overruled * *

We must determine if the argument of State’s counsel was invited by the words italicized above.

In Turner v. State, 164 Tex.Cr.R. 410, 299 S.W.2d 712, counsel for the accused in his argument said, “Where is your blood test?” whereupon counsel for the State replied that if one had been taken the results would not have been admissible because of the unavailability of the necessary witnesses and that such fact was known to appellant’s counsel. We held such answer by the State to have been invited.

In Clifton v. State, 165 Tex.Cr.R. 216, 306 S.W.2d 133, counsel for the accused said that the State had offered no evidence of a blood test, whereupon the prosecutor replied that no one could be forced to take a blood test if he refused. We also held such reply to have been invited.

In Avant v. State, Tex.Cr.App., 323 S.W. 2d 464, counsel for the accused elicited the information that his sister and her husband had had an argument with the arresting officer, and then asked what it was about, whereupon the officer replied that he had offered the accused a blood test. We held no reversible error was reflected by such answer. See also Williams v. State, 165 Tex.Cr.R. 202, 305 S.W.2d 369; Minor v. State, Tex.Cr.App., 320 S.W.2d 347; and Strickland v. State, Tex.Cr.App., 336 S.W.2d 185, and cases there cited.

We have concluded that when appellant’s counsel argued that the State failed to introduce any evidence of a blood test this constituted an invitation to the State to answer him by stating that appellant had refused to take such a test. :

Finding no reversible error, the judgment is affirmed.


author: McDonald, judge. MORRISON, Judge.

text:
    Connie ERWIN, Appellant, v. STATE of Texas, Appellee.
    No. 33497.
    Court of Criminal Appeals of Texas.
    June 7, 1961.
    Rehearing Denied Oct. 18, 1961.

      Tunnell, Bullock & Jeff us, by Byron M. Tunnell, Tyler, for appellant.
    Weldon Holcomb, Criminal Dist. Atty., Henry L. McGee, Jr., Asst. Criminal Dist. Atty., Tyler, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

Appellant was convicted in the county court of Smith County of the offense of transporting an alcoholic beverage, to wit, wine, in a dry area. The case was tried before a jury and a verdict of guilty was rendered, with punishment assessed at six months in jail and a fine of $500.

The testimony of witnesses for the state and for appellant reflects that Deputy Sheriff Williams and Everett were patrolling the Van highway beyond the “Loop” from the city of Tyler when they observed appellant, accompanied by a man by the name of J. W. Lacy, driving a pickup truck and entering the highway from a farm-to-market road “that comes off the Mineóla and Van Highway.”

Officer Williams testified: “Well, I had the information that he was transporting, coming in out * * * ”

The officers stopped appellant, who, with Lacy, got out of the truck and met the officers about half-way between the truck and the officers’ car. The officers walked up to the truck, looked in, and found “a load of cased wine and stuff,” being “fifteen cases of wine, ten cases of quart beer, and about ten half-pints of whisky in a paper sack.”

Appellant was put in the patrol car and was taken by Officer Williams into Tyler to the sheriff’s office. Officer Everett, with Lacy, drove the pickup there. The officers unloaded “all that stuff” and filed on appellant for transporting wine.

It was appellant’s testimony that he had been to Kilgore, where he purchased the wine in question for the consumption of his farm hands, and that, when stopped by the officers, he was going back to his home in Tyler, Smith County.

By brief and oral argument, appellant’s very able counsel urges his contentions. The record contains twenty-one formal bills of exception and numerous informal bills.

By his first bill of exceptions, appellant contends that the trial court erred in overruling his exceptions and objections to the court’s charge, for the reason that the court failed “to charge the jury relative to the defensive matter and issue in this case,” and further complaint is made of the failure of the court to “instruct the jury relative to all of the issues involved in this, case” and “to submit to the jury the de.~ fensive issues raised.”

After carefully reviewing the evidence, we find that appellant failed to introduce evidence upon which the jury could base a finding that he purchased the wine found in his pickup truck for his own consumption and that he was transporting it from a place where the sale thereof was legal.

Appellant failed to bring himself under the terms of Art. 666-23a(l), which makes it lawful to transport intoxicants from a place where the sale thereof is legal to a place where the possession thereof is legal.

The evidence does not reflect the wet or dry status of Kilgore, and, at best, is conflicting as to appellant’s own testimony as to whether the consumption was to be by him or by his employees. Davis v. State, Tex.Cr.App., 318 S.W.2d 668; Johnson v. State, Tex.Cr.App., 334 S.W.2d 305.

Appellant next complains of the trial court’s refusal to require a state’s witness to furnish a copy of what is referred to herein as a “Poop Sheet,” explained as being a written form completed at the time of appellant’s arrest and setting out some of the details of the case, including appellant’s name, the offense with which he was charged, the date of the offense, and the facts indicating the commission of the offense for which he was arrested.

When request for the “poop sheet” in question was made by appellant’s counsel, the witness did not have such sheet in his possession, nor was he using any notes or memoranda therefrom, the witness’s only statement concerning this being that the sheet was seen by him after its completion and that it was “fixed up” by him and another person referred to as “Bill.”

The right to see a document or writing does not obtain when such writing is not used, by the state before the jury in some way so as to make the contents thereof an issue. Chandler v. State, 60 Tex.Cr. R. 329, 131 S.W. 598; St. Clair v. State, 104 Tex.Cr.R. 423, 284 S.W. 571; Avery v. State, 135 Tex.Cr.R. 557, 121 S.W.2d 992.

Appellant contends that the trial court erred in .overruling the objection to the testimony of the state’s witness Jerni-gan, to the effect that Smith County was a dry area.

We find no error in the action of the trial court in .overruling the objection. Any harm that was done was cured by the subsequent testimony proving Smith County to be, in fact, a dry area.

Appellant contends that the state failed to prove that Smith County was a dry area and that the trial court erred in overruling his motion for an instructed verdict of “not guilty.”

The record reflects that the county clerk of Smith County testified directly from the commissioners court records and read, completely, the order requiring the election prohibiting the sale of wine, the order declaring the results of said election, and the publication of the results of the election, giving the volume and page number of the minutes of the commissioners court wherein each of the orders appeared. The clerk testified that since the date of that election there had been no election declaring Smith County a wet area.

It is to be noted that all this testimony was read into the record without objection.

In the absence of a timely objection to the reading of a document to the jury, the parol and best-evidence rules have no application. Testimony read into the record without objection is tantamount to the introduction of the documents from which the testimony was taken. Hillman v. State, 103 Tex.Cr.R. 603, 281 S.W. 874; 18 Tex.Jur., Sec. 230, p. 363.

The state here discharged its duty in showing the dry status of Smith County.

We shall not separately discuss the remaining bills of exception.

Appellant complains of the identification of the fifteen cases of wine, of the testimony as to the label, “Gypsy Rose,” on the bottles of wine, and of the making of the search, complaining that the wine was found as a result of an unauthorized search. Objection was also made to the reading by a witness from the label, and of the action of the court in admitting into the evidence state’s exhibits 1 through 15, which were the fifteen cases of wine. The objection was that proper predicate had not been laid to the introduction into the record “as it stands at this moment.”

We think the chain of custody of the wine in question was properly shown and that no error was committed in allowing the various state’s witnesses to testify as to the contents of the bottles. By his own testimony, appellant seems to have removed any doubt as to the contents being wine.

In Dixon v. State, 159 Tex.Cr.R. 258, 262 S.W.2d 488, this court held, the prosecution being for unlawfully possessing whisky and other alcoholic beverages for the purpose of sale in a dry area, that an officer’s reading to the jury labels on bottles of beer and whisky claimed to have been found in and about appellant’s house was not error when the appellant objected on the grounds of hearsay. See Ferguson v. State, 133 Tex. Cr.R. 250, 110 S.W.2d 61, and Dabney v. State, 141 Tex.Cr.R. 16, 146 S.W.2d 1000.

We overrule appellant’s contention that “proper predicate has not been laid.” The testimony shows that the wine was placed in the custody of the district attorney at the courthouse and properly labeled at the time, by written identification on the cases, and that the bottles were those found at the scene. There is no showing that anyone other than the officers ever had the wine in custody. Johnson v. State, Tex. Cr.App., 319 S.W.2d 713.

In disposing of the last contention made by appellant, being that the wine was found as a result of an unauthorized search, we think that the officers had probable cause to search appellant’s pickup truck. Burns v. State, 141 Tex.Cr.R. 557, 150 S.W. 2d 384. Furthermore, appellant admitted possession of the wine, by his own testimony.

Finally, we conclude that had the search resulting in the finding of the’wine been unauthorized it was incumbent upon appellant to have objected to the evidence when it was offered — that is, to the introduction of the fifteen cases of wine. McCormick and Ray, Vol. 1, 2d Edition, Sec. 473.

Finding the evidence sufficient to sustain the jury’s verdict, and finding no reversible error, the judgment is affirmed.

On Motion for Rehearing.

MORRISON, Judge.

Appellant strenuously argues that reversible error is reflected by the answer of Officer Williams to the question as to why he was on the particular highway at the time in question wherein he stated that he “had information that he (appellant) was transporting, coming in out * * Appellant leveled only a general objection, and immediately thereafter the jury was retired and upon their return the matter was not again alluded to. “I object to that question and the answer,” which was the only objection made in the case at bar, is not sufficient to preserve error under the holdings of this Court in McGee v. State, 155 Tex.Cr.R. 639, 238 S.W.2d 707; Luevanos v. State, 157 Tex.Cr.R. 623, 252 S. W.2d 179; Wade v. State, Tex.Cr.App., 275 S.W.2d 665; Ritchie v. State, 164 Tex. Cr.R. 38, 296 S.W.2d 551; and Miller v. State, 166 Tex.Cr.R. 43, 310 S.W.2d 337.

Appellant further asserts that we were in error in holding that the court did not err in failing to respond to his demand that he be shown a certain document, not then in the possession of the witness, but from which he had refreshed his memory at some undisclosed time in the past. There is no showing in this record as to what information was contained in the memorandum or that it in any way conflicted with the testimony the witness had given. Attention is directed to the holdings of this Court in Angle v. State, 165 Tex.Cr.R. 305, 306 S.W.2d 718; Blum v. State, 166 Tex. Cr.R. 541, 317 S.W.2d 931; and Nisbet v, State, Tex.Cr.App., 336 S.W.2d 142.

Remaining convinced that we properly disposed of this cause- -originally, appellant’s motion for rehearing is overruled.


author: WOODLEY, Presiding Judge.

text:
    James Ellis PERDUE, Appellant, v. STATE of Texas, Appellee.
    No. 33671.
    Court of Criminal Appeals of Texas.
    Oct. 18, 1961.

      No attorney for appellant on appeal.
    Henry Wade, Dist. Atty., Gene Ater, Asst. Dist. Atty., Herschel A. Martin, former Asst. Dist. Atty., and Phil Burleson, .Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is driving while intoxicated; the punishment, 3 days in jail and a fine of $50.

The evidence introduced by the state consisted of the testimony of two police officers who testified that they stopped appellant on Stemmons Freeway after observing him drive at a speed of seventy miles per hour, changing lanes erratically without any particular reason.

The officers described appellant’s appearance and conduct and expressed the opinion that he was definitely intoxicated.

Appellant testified and offered evidence from other witnesses to the effect that he had consumed two “Martinis” shortly before his arrest, but that he was not intoxicated.

The jury resolved the issue against appellant, and the evidence is sufficient to sustain the verdict.

No brief has been filed in appellant’s behalf.

The only bill of exception which merits discussion relates to the refusal of the court to require counsel for the state to allow appellant’s counsel to examine an arrest sheet or statement of a state witness for cross-examination purposes.

The arrest sheet appears in the record as a part of appellant’s bill of exception and we observe nothing therein which would impeach the testimony of the witness for the state. In the absence of any showing of injury the error, if any, is not ground for reversal. See Erwin v. State, Tex.Cr. App., 350 S.W.2d 199; Angle v. State, 165 Tex.Cr.R. 305, 306 S.W.2d 718; Blum v. State, 166 Tex.Cr.R. 541, 317 S.W.2d 931; Nisbet v. State, Tex.Cr.App., 336 S.W.2d 142.

The judgment is affirmed.


author: DICE, Commissioner.

text:
    Carey P. HARRISON, Appellant, v. STATE of Texas, Appellee.
    No. 33580.
    Court of Criminal Appeals of Texas.
    Oct. 18, 1961.

      L. R. Pearson, Dewey Cox, Jr., Ranger, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is driving while intoxicated; the punishment, 15 days in jail and a fine of $150.

Appellant’s sole contention on appeal is that the evidence is insufficient to sustain the conviction.

The state’s proof shows that on the night in question, appellant was arrested and taken into custody when he was found seated under the steering wheel of his automobile, which had been driven into and had struck a brick veneer house of one Buck Wallace, located at the corner of Hodges Street and West Main Street in the ■City of Ranger.

Mayor W. F. Creager, whose residence was on West Main Street across from the Wallace home, testified that on the night in question, while seated in his living room, he heard the tires of an automobile slide, heard the car strike an automobile parked in front of his house, then cross the street and hit the house. He stated that he immediately went outside and across the street, where he observed the appellant sitting alone in his car, under the wheel. At such time appellant was trying to back the automobile away from the house and the wheels were spinning in the sand. Mayor Creager testified that while he did not detect the odor of alcohol on appellant’s breath, he did observe his actions at the scene and expressed his opinion that at such time appellant was under the influence of intoxicating liquor.

City Policeman E. W. Griffin testified that in response to a call, he went to the scene to investigate the collision; that when he arrived, some four or five minutes after the collision, appellant was still seated under the wheel of the automobile; and that after some thirty minutes he took appellant to the police station. He further testified that in his investigation he observed certain tire tracks which indicated that the automobile had traveled south on Hodges Street, across Main Street, and then back across the street into the yard of the Wallace home. Officer Griffin, in describing appellant’s actions and appearance at the time, testified that his speech was slow, his eyes dilated, that he could not walk straight, and the officer expressed his opinion that appellant was under the influence of intoxicating liquor.

Chief of Police Patterson, who observed appellant after he was placed in jail, testified that at such time appellant’s eyes were bloodshot, that he could not walk a line and could not walk without staggering, that twice he fell against the jail wall, that he “laughed a little * * * just kind of had a chuckle, and didn’t seem to be concerned, and he didn’t seem to have control of his faculties at all.” Chief Patterson further testified that appellant’s breath definitely indicated the presence of alcohol, something like a “sweet alcoholic odor” and expressed his opinion that appellant was under the influence of alcoholic beverages.

Appellant did not testify, but called as a witness his employer, who testified that appellant had given no trouble with respect to drinking.

The court submitted the issue of appellant’s guilt to the jury upon a charge on the law of circumstantial evidence.

We are unable to agree with appellant that the evidence is insufficient to show that He drove the automobile úpon a public road or highway.

The evidence is undisputed that appellant was seated under the steering wheel of the automobile immediately after it collided with the house. .No one else was in the automobile. Appellant was attempting to back the automobile away from the house. The automobile tracks on the street, curb, and yard evidenced the fact that the motor vehicle had been driven on Hodges and-West Main Streets, both public thoroughfares and streets within the city. Similar evidence was held sufficient in Sandford v. State, Tex.Cr.App., 334 S.W.2d 184, to show that the accused was the driver of an automobile upon a public highway.

Nor do we agree that the evidence is insufficient to show that appellant was under the influence of, intoxicating liquor.

, The' opinions expressed by the three state’s witnesses and the other facts and circumstances proven are sufficient to support the jury’s finding on the issue of intoxication. While the proof does show that after the collision appellant had a cut lip and was semiconscious, there was no proof that his semiconscious condition was the result of injuries sustained in the collision. After the collision appellant was taken to the police station and placed in jail. He was 'able to' sign his name to a ticket. There is no evidence that he was taken to á hospital.

In Vasquez v. State, 166 Tex.Cr.R. 89, 311 S.W.2d 828, cited by appellant, the accused was taken from the scene of the collision, in an unconscious condition, to a hospital where he was treated for injuries sustained in the collision. The only witness who expressed the opinion that he was intoxicated was a highway patrolman who observed him in the hospital. Such are not the facts in the instant case, where appellant was observed by three witnesses : two at the scene and the other, later, at the jail, who expressed their opinions that he was intoxicated.

The judgment is affirmed.

Opinion approved by the Court.


author: McDonald, judge.

text:
    Ex parte Guadalupe GUAJARDO, Jr.
    No. 34043.
    Court of Criminal Appeals of Texas.
    Oct. 18, 1961.
    Wm. D. Bonilla, Walter Groce, Corpus Christi, for appellant.
    Sam IT. Burris, ■ Dist. Atty., John L. Campos, Asst. Dist. Atty./ Alice, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

This is an appeal from an order entered in a habeas corpus proceeding denying bail to appellant, who was in custody under warrant of a magistrate and charged by complaint with the offense of murder with malice.

Since the order was entered by the district judge denying bail, admittedly appellant has been indicted for the murder. Hence, the question presented on this appeal has become moot. Ex parte Cross, 127 Tex.Cr.R. 327, 76 S.W.2d 773; Ex parte Everett, 151 Tex.Cr.R. 22, 204 S.W. 2d 980; Ex parte Alaniz, 157 Tex.Cr.R. 590, 251 S.W.2d 738; Ex parte Davis, Tex. Cr.App., 290 S.W.2d 669; Ex parte Bowles, 166 Tex.Cr.R. 346, 314 S.W.2d 108.

Under the authorities mentioned, it becomes our duty to dismiss the appeal.

The appeal is dismissed.


author: MORRISON, Judge. BELCPIER, Commissioner.

text:
    Ruth BEALE, Appellant, v. STATE of Texas, Appellee.
    No. 33397.
    Court of Criminal Appeals of Texas.
    June 24, 1961.
    Rehearing Denied Oct. 18, 1961.
    No attorney for appellant of record on appeal. Samuel R. Jones and O. W. Stern-berg, Waco, for appellant on motion for rehearing.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

' The offense is murder; the punishment, 25 years.

The statement of facts accompanying this record has not been approved by the trial judge nor agreed to by counsel, as required by Article 759a, Vernon’s Ann. C.C.P. Not having been approved as required by law, the statement of facts here is-not subject to consideration by this Court.

In the absence of a statement of facts, nothing is presented for review.

. The judgment is affirmed.

On Appellant’s Motion for Rehearing:

BELCPIER, Commissioner.

The purported formal bill of exception, although not filed within the time required by statute, was refused by the trial judge for the reason thereon stated when presented to him for approval. No further action pertaining to said purported bill is shown by the record. Therefore, it cannot be considered.

Numerous contentions urging the commission of reversible error by the trial court are presented by brief and in oral argument upon submission of the case. But, a search of the record fails to reveal anything authorizing a review of such contentions.

The motion is overruled,

Opinion approved by the court


author: WILSON, Justice.

text:
    McLENNAN COUNTY et al., Condemnors and Appellants, v. Tom R. STANFORD et al., Condemnees and Appellees.
    No. 3893.
    Court of Civil Appeals of Texas. Waco.
    Sept. 21, 1961.
    W. C. Haley, Waco, for appellants.
    Dunnam & Dunnam, Waco, for appellees.
   WILSON, Justice.

Condemnee in this partial-taking eminent domain proceeding owned tracts of 350 acres and 27½ acres, some distance apart. Several years before date of taking he purchased a long, narrow connecting strip of land joining these tracts in order to move his cattle between them for feeding, watering and grazing purposes, and “so he could tie them together and have an all-weather, year-around way to handle cattle.” Each of the two tracts was contiguous to the connecting strip. The three parcels were all' owned in fee by condemnee, and the evidence is undisputed that all this land was operated in its entirety as one unit for the single purpose. The narrow parcel condemned for highway purposes is taken from the 27J4 acres, and severs practically all of the latter from the strip which had joined it to the 350-acre tract. There is no controversy as to these facts.

The court elicited findings from the jury as to value of the total remainder of con-demnee’s land (including the 350 acres, the-connecting strip and the residue of the 27½ acres) before and after the taking,, basing judgment on the difference. Con-demnor says this was error; that the 350' acres was a separate parcel, and damages thereto were not recoverable as a matter of law; or, alternatively, the question of whether the tracts were a unit was a fact issue and should have been submitted to the: jury.

The law seems to be firmly settled against the contentions. Where separate, but contiguous tracts are integral parts of an entity under common ownership in such physical and functional relationship that they are joined by unity of use by the same proprietor into a single property, they will be treated as a whole in assessing damages to the remainder in the taking of a part. Southwestern Public Service Co. v. Goodwine, Tex.Civ.App., 228 S.W.2d 925, 928, writ ref., n. r. e.; City of Denton v. Hunt, Tex.Civ.App., 235 S.W.2d 212, 215, writ ref., n. r. e.; Gulf C. & S. F. Ry. Co. v. Payne, Tex.Civ.App., 308 S.W.2d 146, 150; Texas Elec. Service Co. v. Linebery, Tex. Civ.App., 327 S.W.2d 657, 662, writ dis.; Concho, S. S. & L. V. Ry. Co. v. Sanders, Tex.Civ.App., 144 S.W. 693; United States v. 2477.79 acres, 5th Cir., 259 F.2d 23, 27; West Virginia Pulp & Paper Co. v. United States, 4 Cir., 200 F.2d 100, 104; 4 Nichols, Em.Domain (3rd ed.) Sec. 14.3, pp. 426-439; Rayburn, Texas Law of Condemnation, pp. 455-460; Orgel, Valuation Under Em.Domain, Sec. 47; 6 A.L.R.2d 1202-1207; 22 Tex.Jur.2d, Sec. 152, p. 247.

We recognize the rules stated in authorities relied on by appellant, but they are not applicable here. The distinction between the present case in which the facts are undisputed, and Texas-New Mexico Pipeline Co. v. Linebery, Tex.Civ.App., 326 S.W.2d 733, in which the El Paso Court held a fact issue was presented as to whether parcels were separate, is pointed out by the same court in the second Linebery case, 327 S.W. 2d at page 662. In our case there is not more than nominal division between the 27½ acres, the connecting tract, and the 350 acres. In Pennsylvania Co. For Insurance on Lives & Granting Annuities v. Pennsylvania S. V. Ry. etc. Co., 1892, 151 Pa.St. 334, 25 A. 107, cited by appellant, separate tracts were joined only by an alley, a public way over which defendant had an easement. One tract was his home; the other was a realty subdivision, and there was no unity of use,

The foregoing holding makes immaterial appellants’ third point urging that if damages were not recoverable for diminution in value of the 350-acre tract, there was no basis for assessing such damages to the remainder of the 27½ acres. The judgment is affirmed.