author: CULLEN, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. L. G. WASSON COAL MINING CORPORATION, Appellee.
    Court of Appeals of Kentucky.
    Feb. 23, 1962.
    As Modified on Denial of Rehearing June 22, 1962.
    John B. Breckinridge, Atty. Gen., H. D. Reed, Jr., and William A. Lamkin, Jr., Asst. Attys. Gen., Patrick J. Dixon, Dept, of Highways, Louisville, for appellant.
    Robert E. Hatton, Louisville, Winfield K. Denton, Evansville, Ind., Ford Gale Lacey, Boonville, Ind., for appellee.
   CULLEN, Commissioner.

L. G. Wasson Coal Mining Corporation (hereinafter “Wasson”) brought an action, based on alleged contractual liabilities, against the Commonwealth of Kentucky, Department of Highways, and against Traylor Brothers, Inc. (hereinafter “Tray-lor”). The latter asserted a cross-claim against the Commonwealth. Judgment was entered against the Commonwealth for $118,173 in favor of Wasson and for $15,-133 in favor of Traylor. The Commonwealth undertook to appeal from the entire judgment but failed to name Traylor in the statement of appeal with the result that the appeal was dismissed as to Traylor, leaving before us an appeal only as to the part of the judgment in favor of Wasson.

The primary issue on the appeal is whether the Commonwealth had any contractual relationship with Wasson.

Traylor was the prime contractor with the Department of Highways for grade and drain work on a 12-mile section of a highway construction project. Among other things, the contract provided that Traylor would be paid 38 cents per cubic yard for borrow pit excavation. Traylor subcontracted a 4-mile section to Wasson,, with provision that Wasson would receive 34.5 cents per cubic yard for borrow pit excavation. The subcontract recited that the relationship between Traylor and Wasson was that of employer and employe, respectively. This latter provision conformed with a requirement of the specifications embodied in the prime contract, that subcontractors would be recognized by the Department of Highways only in the capacity of employes. However, a requirement of the specifications that written consent to the making of a subcontract be obtained from the department was not complied with.

The basis of Wasson’s claim for relief in the instant action was that the Department of Highways had erroneously underestimated the amount of borrow pit excavation. Wasson sought recovery for over 300,000 yards of such excavation in excess of the number of yards for which Traylor had received payment under the department’s estimate. Wasson’s complaint alleged merely the contract between the department and Traylor, the subcontract between Traylor and Wasson, and the underestimating of the excavation work. There was no allegation or claim of any assig-nment of the prime contract to Wasson or of a novation.

Traylor’s cross-claim against the department did not allege any underestimate by the department nor did it otherwise assert any failure of the department to perform its obligations under the prime contract; the cross-claim merely alleged that Traylor was entitled to recover 3.5 cents per yard (the difference between the prime contract rate and the subcontract rate) for any excavation found by the court to have been done by Wasson for which payment had not been made by the department.

The answer of the department asserted the defense that the department had no contractual relationship with Wasson, and therefore Wasson was not entitled to maintain any action against the department. It it our opinion that the trial court erred in not sustaining this defense.

We have found only two cases directly in point on the question. They are Road Department Dist. No. 1 v. Mobley Constr. Co., 171 Ark. 585, 286 S.W. 878, 48 A.L.R. 456, and City of Dallas v. Shortall, 131 Tex. 368, 114 S.W.2d 536. In both cases it was held that a governmental unit which had entered into a prime contract for construction work had no contractual relationship with a subcontractor of the prime contractor such as would support an action by the subcontractor against the governmental unit for breach of contract. We think the reasoning of those cases is sound and we concur in their conclusion.

The trial court upheld Wasson’s cause of action on the theory of a third party beneficiary contract. We think this theory ⅛-completely unsustainable because the essential features of a third party beneficiary contract are not present in this situation. See Road Improvement District No. 1 v. Mobley Constr. Co., supra.

■ Wasson maintains that Traylor’s cross-complaint asserted a claim against the department for the full-amount due from the department by reason of the alleged underestimate- of the excavation work, and that the trial court merely simplified the form of relief by awarding recovery directly to> Wasson, instead of granting a primary-judgment against the department in favor of Traylor and a secondary judgment against Traylor in favor of Wasson. The answer to this contention is that the cross-claim of Traylor did not assert any claim against the department except for an amount to he computed on the basis of such recovery as might be awarded to Wasson; it did not allege any failure of the department to perform its contractual obligations; it did not allege any underestimate of the excavation yardage; it did not seek any recovery except such as was conditioned upon a recovery by Wasson. (It appears that the form and nature of Traylor’s cross-claim may have been influenced by the fact that Traylor previously had brought an action against the department for various claims under the prime contract, including a claim for payment of the amount due under the final estimates of the department, and had obtained recovery on all claims except one disputed item.) Under no interpretation could it be said that the Traylor cross-claim asserted any claim for the amount sought by Wasson. So Was-son’s lack of a cause of action of its own was not supplied by the cross-claim.

Although there was no allegation or claim asserted in the trial court of any assignment of the Traylor contract to Was-son, the latter now advances two theories of assignment, one being that the making of the subcontract amounted to an assignment to Wasson of “the right to collect a portion of money for work done,” and the other being that an equitable assignment of money due from the state to Traylor was made by the pleadings in the instant action. The first theory is not sustainable because the subcontract did not purport in any way to give Wasson any right to receive directly from the state any money payable by the state to Traylor under the prime contract; the subcontract provided merely that Traylor would pay to Wasson a portion of the money Traylor received from the state. Furthermore, the subcontract by its express provisions, and in compliance with the requirements of the state’s specifications, placed Wasson in the status of an employe of Traylor, and it would be a novel proposition indeed that the hiring of an employe constitutes an assignment by the employer of money to become due the employer under a contract with a third person. The second theory also is without merit, because at the time the pleadings in the instant action were filed Tray-lor had no remaining claim to assign respecting the alleged underpayment for borrow pit excavation. This is because Tray-lor previously had brought suit against the state asserting various claims for relief under the prime contract (not including any claim for borrow pit excavation work), and under the established rule against splitting a cause of action Traylor could not thereafter have asserted any claim against the state for the borrow pit work. When the instant suit was filed by Was-son, Traylor’s claims were gone and there was nothing left to assign.

A motion by Wasson to dismiss the appeal was passed to the merits. The theory of this motion is that Traylor was an indispensable party to the appeal. We find no merit in this theory. As hereinbefore pointed out, the primary issue presented on the appeal is whether Wasson had any contractual relationship with the Highway Department such as would sustain an action by Wasson. In no sense is the presence of Traylor indispensable to the determination of that issue. There can be a proper final adjudication of the controversy presented on the appeal without Traylor’s being present. See Clay, CR 19.01, Comment, p. 224. Traylor’s interests and rights will not be affected by the disposition of this appeal. The mere fact that the failure of the Department of Highways to perfect an appeal as against Traylor has resulted in Traylor’s receiving payment of the judgment in its favor does not mean that the final decree entered pursuant to the mandate of the Court on the appeal as to Was-son, dismissing Wasson’s claim, will leave the total case in a condition “inconsistent with equity and good conscience” within the meaning of the opinion in Shields v. Barrow, 17 How. 129, 130, 15 L.Ed. 158, 160. Accordingly, the motion to dismiss the appeal is overruled.

The judgment in favor of L. G. Wasson Coal Mining Corporation is reversed, with directions to enter judgment dismissing the complaint.


source: Caselaw Access Project

license: Public Domain

text:
    Marlow W. COOK and H. Bemis Lawrence, as Members of the Fiscal Court of Jefferson County, Kentucky, Appellants, v. Robert A. FIHE and Philip P. Ardery et al., Appellees. Marlow W. COOK, as County Judge of Jefferson County, Kentucky et al., Appellants, v. Robert A. FIHE, as County Commissioner et al., Appellees.
    Court of Appeals of Kentucky.
    June 8, 1962.

      Samuel Steinfeld, Louisville, for appellants Marlow Cook and H. Bemis Lawrence.
    Oldham Clarke, Louisville, for appellees Robert A. Fihe and Philip P. Andery.
    E. P. Sawyer, Louisville, for appellant Marlow Cook as County Judge.
    Charles Speed Gray, Louisville, for appellants Woodson, Harrell, Ernst, and members of that class, and for appellant Trautwein.
    Henry A. Triplett, Louisville, for ap-pellees Comely, Romaine, Curley, and members of that class, and for appellee Boone.
    Mark Davis, Jr., Asst. County Atty., Louisville, for appellee Tierney.
   CULLEN, Commissioner.

This appeal presents questions of construction of KRS 67.070(3), relating to fiscal courts having commissioners rather than justices of the peace as members. (A similar statute, KRS 67.040(4), applies to fiscal courts with justice of the peace members.) The statute reads:

"(3) When there is a tie vote in the fiscal court in the selection of any officer or employe to be selected by the fiscal court, and a deadlock results and continues for fifteen days or longer, the county judge shall cause to be entered upon the minutes of the fiscal court an order reciting the facts as to the deadlock, and the question upon which it has occurred and exists, and thereupon, unless an election is immediately made by the fiscal court, the county judge shall appoint the officer or employe.”

In the Jefferson County Fiscal Court a resolution was offered calling for the discharge of a substantial number of subordinate employes of the fiscal court (occupying positions not specifically established by statute but created by the fiscal court under general powers to carry on various functions) and for the appointment of other (named) persons in their places. One commissioner and the county judge voted for the resolution and the other two commissioners voted against it. The deadlock continued for more than 15 days and the county judge then undertook to make appointments to the various positions under claimed authority of KRS 67.070(3).

In a declaratory judgment action brought by the two commissioners who had voted against the resolution the circuit court held that the purported appointments by the county judge were invalid. The county judge and the other commissioner have appealed.

The circuit court construed the statute as applying only to the filling of vacancies in statutory offices and positions, a “statutory” office being considered by the circuit court to be one specifically established by statute as distinguished from one created by the fiscal court under general powers.

The appellants maintain, first, that the power granted by the statute to the county judge is not limited to the filling of vacancies; that whenever there is a deadlock on the question of whether one person or another should hold a particular position the power of appointment, with the concomitant power of removal, passes to the county judge. They say that the statute applies when the fiscal court deadlocks on the question of “who is to perform the task in carrying on the business” of the fiscal' court, or cannot agree “upon those persons who should continue to perform the tasks” (quotations from appellants’ brief).

The difficulty with this contention is that the statute does not use any such language as that suggested by the appellants. It provides that the county judge shall “appoint” when there is a tie vote “in the selection of any officer or employe to be selected by the fiscal court.” This language, to us, clearly restricts the application of the statute to situations in which a position is unoccupied and the question before the fiscal court is-the selection of a person to occupy it. This construction is consistent with a reasonable legislative purpose to prevent a breakdown in the functions of county government by reason of the existence of vacancies in the work forces.

Questions involving the construction or application of KRS 67.070(3) or 67.040(4) have been presented to this court in several previous cases. Kirchdorfer v. Tincher, 204 Ky. 366, 264 S.W. 766, 40 A.L.R. 801; Hill v. Taylor, 264 Ky. 708, 95 S.W.2d 566; Muenninghoff v. Marrett, 269 Ky. 826, 108 S.W.2d 878. In none of those cases was there any holding, or even suggestion, that the county judge would have power under the statute to remove an incumbent.

The appellants’ argument that a power of appointment carries with it the power of removal, and that the appointment of a new person automatically removes the incumbent, has no force if the statute is construed as applying only to the filling of vacancies, because under such construction the power of appointment to a particular position never passes to the county judge if the position has an incumbent. Cf. Page v. Hardin, 47 Ky. 648.

The appellants suggest that the various positions here in question are held on a month-to-month basis, requiring a reappointment (either specific or by implication from payroll approval) each month, and therefore a question of “selection” was before the fiscal court. The record does not support this proposition; on the contrary it indicates that the positions were held at the pleasure or will of the fiscal court, which would require some affirmative act of the fiscal court to effect a removal. It is significant that the resolution on which the fiscal court deadlocked recited that the incumbents “be discharged.”

It is our conclusion that the circuit court correctly construed the statute as applying only to the filling of vacancies, and therefore properly held invalid the purported appointments by the county judge. However, the judgment went further and declared that the statute covers only “statutory” offices and positions, and in this respect we think the judgment is erroneous.

The statute says that it applies to the selection of “any officer or employe to be selected by the fiscal court.” Its language does not purport to restrict its application to positions specifically created by the legislature. It is true that in Kirchdorfer v. Tincher, 204 Ky. 366, 264 S.W. 766, 40 A.L. R. 801, and in Hill v. Taylor, 264 Ky. 708, 95 S.W.2d 566, the court used the phrase “statutory county officers,or agents” but it is clear that the court was simply making a distinction from offices created by the constitution.

The appellees concede that the legislature, in creating an office or position, may designate such appointing authority as it chooses, and therefore constitutionally may provide, as was done in KRS 67.070(3), that the county judge may appoint if the fiscal court cannot agree on an appointment. It was so held in Kirchdorfer v. Tincher, 204 Ky. 366, 264 S.W. 766, 40 A.L.R. 801. But the appellees maintain, that this is not true with respect to positions created by the fiscal court under general powers; that in such case the power of appointment cannot be separated from the power to create the office, and that both powers, under Section 144 of the Kentucky Constitution, can be exercised only by majority vote of the fiscal court.

In our opinion the legislature has the same constitutional power to designate the appointing authority in the case of offices or positions which it has granted general authority to the fiscal court to create, as it does with respect to offices or positions which the legislature itself creates. In substance the legislature has said, in KRS 67.070(3), that it is designating the appointing authority, whether the position has been created by the legislature or by the fiscal court. We can find nothing unconstitutional in this.

It perhaps should be mentioned that there is no issue in this case of whether the county judge may have two votes, one to create a tie and another to break it. In making an appointment under the statute the county judge is not breaking a tie but is simply exercising a power which the legislature has provided shall pass from the fiscal court if it fails by reason of a deadlock to exercise it. See Hill v. Taylor, 264 Ky. 708, 95 S.W.2d 566. The county judge wears various official hats, or as said in the Hill case, his office is “omnium gatherum,” so it may be considered that he exercises the power of appointment under the statute not as a member of the fiscal court but in another capacity.

To the extent that the judgment declares that the statute applies only to “statutory” offices and positions it is reversed; in all other respects it is affirmed.


author: STANLEY, Commissioner. PALMORE, Judge

text:
    MARYLAND CASUALTY COMPANY, Appellant, v. MAGOFFIN COUNTY BOARD OF EDUCATION, Appellee. MARYLAND CASUALTY COMPANY, Appellant, v. MAGOFFIN COUNTY, Appellee.
    Court of Appeals of Kentucky.
    Sept. 29, 1961.
    As Modified on Denial of Rehearing June 22, 1962.

      Stoll, Keenon & Park, Lexington, for appellant.
    J. K. Wells, Paintsville, Earl Cooper, Ar-nett Mann, Salyersville, for appellees.
   STANLEY, Commissioner.

In consolidated actions the trial court found that Hade Montgomery, former sheriff of Magoffin County, was short in his accounts as tax collector and was liable to (1) Magoffin County for $32,737, principal and interest, for the fiscal year 1955 — 1956, and (2) to the Magoffin County Board of Education for $25,636.95, principal and interest, for the fiscal years 1954-1955 and 1955-1956. The Maryland Casualty Company was surety on the several bonds. Default judgment was rendered against Montgomery for those sums in favor of the County and the Board of Education, respectively. Because of the limitations on the amount of the bonds, judgment on a trial went against the surety in favor of the County for $20,650 and in favor of the Board of Education for $23,114.95. The amounts include accrued interest on the defalcations.

Before assuming the duties of the office of sheriff on January 4, 1954, Montgomery executed a bond (a) in the penal sum of $5,000 for the faithful performance of his duties. This was- the “General Bond of the Sheriff” required by KRS 70.020, but the terms of the bond carried the additional provision that the principal would “honestly account for all monies coming into his hands according to law.” The bond covered the calendar year 1954. Another bond with the same terms (b) was executed in January, 1955, for $10,000. This covered the year 1955. Another bond (x) executed as of January 4, 1956, was for the period January 4, 1956, to January 4, 1957, to the Commonwealth for $10,000.

On May 20, 1954, a revenue' collection bond (c) was executed for $15,000 to “Magoffin County, Commonwealth of Kentucky” covering the period from May 30, 1954, to May 30, 1955. The terms are identical with the foregoing general bonds (a) and (b). Another such bond (d) was executed May 30, 1955, for the ensuing fiscal year 1955-1956. These bonds were executed under the provisions of KRS 134.230, as amended in 1954. The provision in subsection (3) of that statute shows an intention that the bond shall be for the benefit of any taxing district, and it has been often held that the bonds cover county levies no less than the state revenue. Leslie County v. Maggard, 212 Ky. 354, 279 S.W. 335. KRS 134.250, entitled “Special County Levy Bond,” also requires that the sheriff shall annually execute a bond to the Commonwealth covering the collection of the “County Levy.” KRS 134.260 provides that subject to the provisions of KRS 134.270 the sureties on the sheriff’s revenue bonds shall be liable for any default of the sheriff during the calendar year in which the bond was executed and not for any other year.

The appellant contends that it cannot be held liable for any defalcation of the sheriff under the general bonds, (a) and (b). If the contention is sound, the surety’s obligation would be limited to $15,000 for each year, according to the revenue collection bonds, (c) and (d).

The appellant relies on Fidelity & Casualty Company v. Breathitt County, 276 Ky. 173, 123 S.W.2d 250, in which it was held, after a review of the several statutes and types of bonds, that the sureties on a sheriff’s official bond were not liable for default in revenue collections when the sheriff had also executed revenue bonds. The question was very pertinent in that case, for the issue was contribution among different sureties on the general bond and the revenue collection bonds. The terms of the official bond followed the language of § 4556, Ky. Stats, (as a present examination of the record shows) and contained the provision that the sheriff “would pay over to such persons, and at such times as they may respectively be entitled to the same, all money that may come into his hands as sheriff.” This was construed in the opinion as not including tax collections, for a revenue collection bond had also been executed. The present successor statute relating to the general official bond, KRS 70.020, does not contain such provision. It merely provides in general terms that the sheriff shall execute bond for the faithful performance of the duties of his office.

Neither of these general official bonds contains any reference to the statutes. Regardless of how they may be denominated — as general official bonds or revenue collection bonds — their real character and commitments determine the liability. Leslie County v. Maggard, supra, 212 Ky. 354, 279 S.W. 335. But, as a matter of fact, they contain the express assurance that the sheriff would “honestly account for all monies coming into his hands according to law.” The obligation cannot be regarded as invalid or rejected as sur-plusage. In an earlier case it was held that the general bond with respect to tax collections was additional protection to that afforded by the revenue collection bonds. Fidelity and Deposit Co. of Maryland v. Commonwealth, 104 Ky. 579, 47 S.W. 579, 49 S.W. 467, 20 Ky.Law.Rep. 788, 1402. And it was held in Russell County Board of Education v. Leach, 288 Ky. 769, 157 S.W.2d 70, 72, following Fidelity Deposit Company of Maryland v. Brown, 230 Ky. 534, 20 S.W.2d 284, that the terms of § 4134, Ky.Stats. (which was part of the series of statutes relating to revenue bonds), which authorized the county court to require additional bonds and which provided that there should be no liability on the bond unless notice of default giving rise to a claim on the bond should be given within a certain time, were broad enough to cover “any and all bonds executed by the sheriff.” The applicable provisions of former § 4134, Ky.Stats., are now contained in KRS 134.230(4), 134.260 and 134.270.

It seems to us all of these bonds must be given the same legal effect.

But as the revenue collection bonds executed under KRS 134.230 et seq. are specific in their purpose as defined in the statute, we are of opinion that liability for failing to account for tax collections is primarily under such bonds. However, in case the liability stipulated in such bonds proves insufficient to cover the aggregate default of the obligee in tax collections, resort may be had to the general fidelity bonds executed under KRS 70.020, which the statute declares “shall be in addition to the bond required of him by KRS 134.230.” In the present case the bonds executed under KRS 134.230 proved to be insufficient. Indeed, all of them together were not enough, for, as stated above, the judgments against the surety are about $15,000 less than against the sheriff personally.

The appellant contends that there was a shortage in the sheriff’s accounts with the Board of Education for the year 1954-1955 of $16,116.44 and no notice thereof was given the surety within ninety days after the discovery. It therefore submits that it should be relieved of liability for that amount because of the failure to give timely notice. It claims also that it may not be held liable for all subsequent defaults, i. e., the shortages for 1955-1956, by reason of the concealment of the fact of the shortage, which misled the surety into executing the bonds for that subsequent year.

The Board of Education case, 1954-1955 taxes.

An obligee’s compliance with a provision calling for notice of a claim within a specified time is regarded as a condition precedent to the recovery on the contract of suretyship. Jellico Grocery Co. v. Sun Indemnity Co. of New York, 272 Ky. 276, 114 S.W.2d 83; 72 C.J.S. Principal & Surety § 253. It is made so by KRS 134.-270, reading:

“Neither the sheriff nor a surety shall be liable for any act or default of the sheriff in connection with his revenue duties unless notice of the act or default of the sheriff giving rise to a claim upon the bond has been given to the surety by the Department of Revenue, the county judge, the county attorney or other person asserting the claim within ninety days after discovery or at the latest within one year after the end of the year within which the bond was executed.”

This section was a proviso in former § 4134, Ky.Stats. It came into the statutes in 1934. Ch. 20, Acts of 1934; Mt. Vernon Independent Graded School District v. Clark, 281 Ky. 230, 135 S.W.2d 892. Before that enactment, a like provision of limitation conditioned on the absence of stipulated notice included in a tax collector’s bond was held not binding because in derogation of the statutory requirements. Bankers’ Surety Co. v. City of Newport, 162 Ky. 473, 172 S.W. 940. None of the present bonds contain a similar condition as to notice, but the statutory provision is, of course, effectual.

The trial court found as a fact that a shortage occurred in the accounting of school funds for the fiscal year 1954-1955 in the sum of $15,256.07, but that it was not discovered until the completion of the audit in June, 1956, and thereafter proper and timely notice was given the surety. The court found another shortage in the school funds for the fiscal year 1955-1956 in the sum of $6,002.64. Timely notice of that default was given.

An entry on the record of the school board on June 29, 1955, recites that the board would “accept the figures of the sheriff as presented and any error * * * to be corrected and to not accept final settlement until the bill is paid, which appears to be according to the figures $16,116.44.” On July 14, 1955, Montgomery gave the treasurer of the hoard a check for that amount drawn on his account as sheriff. It bore the notation, “Amount to complete settlement of 1954 — 1955 tax collection.” The bank refused payment on account of insufficient funds. (His balance was $3,-851.72.) This was reported to the board. The superintendent testified that he discussed the matter with the sheriff, who then claimed “he had made a mistake or something was wrong with the check.” After holding the check for “perhaps a month or two,” and being advised by the bank that there still were not sufficient funds on deposit to pay the check, the board turned it over to its attorney to collect. He appears to have taken no action.

On October 14, 1955, the sheriff gave another check for the identical amount of the dishonored one. It was not deposited until November 9. It was then paid. Thus the board generously favored the sheriff in his default for nearly four months. It is quite certain that the board knew at that time that the check was satisfied with 1955— 1956 collections.

In December tax receipts seemed to be falling off, and then the board ordered an audit to be made of the sheriff’s accounts. That was done in March and April, 1956. The audit revealed that the check for the balance of the 1954 taxes had been satisfied out of the 1955 collections. On April 17, 1956, the superintendent of schools wrote the surety company: “The Magoffin County Board of Education has been having difficulty in collecting their portion of the taxes from the sheriff of Magoffin County over a period of some two or three years.” The letter enclosed a copy of the auditor’s report showing a shortage for 1954 and 1955 of $25,256.36 and demanded payment thereof. This was the first notice the surety had of any default. It came nine months after the “cold check” had been given by the sheriff.

The superintendent testified that upon a chance meeting on the street soon after the incident he told the surety company’s local agent in Salyersville about the dishonored check. The agent denied the conversation. The trial court did not accept or regard this as “notice of the act or default of the sheriff,” for he placed his decision upon the ground that there had been no “discovery” until the filing of the audit of the sheriff’s accounts.

The legal question is just what constitutes “discovery” of “any act or default of the sheriff in connection with his revenue duties,” as stipulated in KRS 134.270, above quoted. The word “discovery” has, of course, many connotations and meanings. In relation to default of an insured person, the obligee in the bond, it is generally said, is not required to act until there is actual knowledge of a dishonest act or loss, mere suspicion thereof not being sufficient. See Shatz v. American Surety Co., Ky., 295 S.W.2d 809, at page 816. But, as said in Fidelity and Guaranty Co. v. Western Bank, 94 S.W. 3, 5, 29 Ky.Law Rep. 639, after suspicion is aroused, the obligee in the bond “ought to pursue its inquiries with reasonable diligence, and when satisfied that the defalcation exists, and the extent, or the substantial extent, of it, notice of the fact ought to be given promptly to the insurer.” In that case there were several items of embezzlement by a bonded bank employee. On April 7, 1903, the bank’s officers received information that aroused their suspicion concerning the employee’s fidelity. But defalcation of an item of $1,459.43 was not definitely established until three or four days later, and then an effort was made to obtain a settlement. A thorough examination of the employee’s accounts was then being made. The bond contained a provision that the employer should give notice to the insurer immediately upon discovery of any fraudulent act. We held that the failure of the bank to give notice of the default of the item until April 20 exonerated the surety from liability. To the same effect in principle is Jellico Grocery Co. v. Sun Indemnity Co. of New York, 272 Ky. 276, 114 S.W.2d 83, holding that delay beyond the specified time for notice cannot be justified upon the contention that the extent of the loss had not been ascertained. Cogent reasons are given as to the fairness and importance of giving notice to the surety of any wrongful or dishonest act of a person whose fidelity has been guaranteed. See also 72 C.J.S. Principal and Surety §§ 150, 151; 50 Am. Jur., Suretyship, §§ 347, 348.

No comment need be added to the full recitation of the facts in this case except ■to say that to believe the Board of Education and its officials did not have any more than a suspicion of wrongdoing by the sheriff would distort reality. They had actual knowledge that the sheriff was guilty of a misappropriation of the revenue collections well within ninety days.

The effort of the appellees to avoid their dereliction in duty to the surety because there was a dispute as to the amount owing by the sheriff is strained and feeble. The only evidence of this is the sheriff’s statement to them that he “made a mistake.” Indeed, he did — in appropriating the tax money to his own use and giving the worthless check. There was no dispute about the amount owing at the time, for the exact sum was paid three months later without question.

The judgment for the Board of Education for the misappropriation of the 1954-1955 school taxes is erroneous.

The Magoffin County case, 1954 taxes.

It appears that the sheriff was continually derelict in paying over what are called “Oil Run Taxes” and had been frequently reminded of it. On September 14, 1955, he gave a “cold check” to the county treasurer for $3,476.95, covering collections during the previous May. The treasurer, and perhaps the county judge, had “kept after” the sheriff to pay the sum, but he did not do so until January 20, 1956.

The trial court found the sheriff failed to account to the county for $28,592. This was discovered by the county officials on May 30, 1956, and timely notice was given the surety. The finding is too meager and indefinite to be of much assistance, but apparently the court regarded all of the shortage to have accrued in tax collections for 1955-1956.

Our foregoing decision as to the discovery of the “act or default” of the sheriff with respect to the school revenues is likewise applicable to his failure to pay over the May, 1955, county taxes, but here the terms of the statute as to timely notice were complied with.

Liability for 1955 taxes.

We consider the surety’s liability for shortages in the sheriff’s accounts occurring after the execution of the bonds for the succeeding year. The appellant contends that the failure of the obligees in the bonds to reveal the previous defaults of the principal before allowing the surety to renew the bonds or to execute new ones for the ensuing periods entitles the surety to exoneration from liability under such renewed bonds as a matter of equitable estoppel. The rule to that effect is well recognized as applicable to private transactions or to fidelity bonds executed in the commercial world. Connecticut Mutual Life Ins. Co. v. Scott, 81 Ky. 540, 5 Ky.Law Rep. 639; Brunner v. City of Louisville, Ky., 311 S.W.2d 402. See also 50 Am.Jur., Suretyship, § 328; 72 C.J.S. Principal and Surety §§ 77e, 150.

But there is an overriding public policy which makes a distinction between the action or nonaction of public officials when acting in a governmental capacity. That policy, in short, is that negligence or dereliction of public officials will not work an estoppel against the state or its several agencies and subdivisions. The principle rests upon the broad ground that the public is entitled to greater consideration in weighing the equities than where rights of individuals only are concerned. City of Paducah v. Gillispie, 273 Ky. 101, 115 S.W. 2d 574. The law is long established and deeply rooted in this and other states that, subject to special exceptions, the doctrine of equitable estoppel has no application to governments, municipal corporations and other agencies when their officials are acting in governmental capacities. Taylor v. City of LaGrange, 262 Ky. 383, 90 S.W.2d 357; City of Paducah v. Gillispie, 273 Ky. 101, 115 S.W.2d 574; Monticello Electric Light Co. v. City of Monticello, Ky., 259 S.W.2d 486; 19 Am.Jur., Estoppel, §§ 166, 167, 168; 31 C.J.S. Estoppel § 138. See Annotation, 1 A.L.R.2d 338.

The principle has been often applied to different states of fact. Of particular authority for holding in the present case that the surety is not discharged by the negligence or omissions of the public officials are Commonwealth v. Tate, 89 Ky. 587, 13 S.W. 113; Wade v. City of Mt. Sterling, 33 S.W. 1113, 18 Ky.Law Rep. 377; Fidelity and Deposit Co. of Maryland v. Commonwealth, 104 Ky. 579, 47 S.W. 579, 20 Ky.Law Rep. 788; Gay v. Jackson County Board of Education, 205 Ky. 277, 265 S.W. 772; Bennett v. County Board of Education of Harlan County, 273 Ky. 143, 116 S.W.2d 302; 67 C.J.S. Officers §§ 165, 171, Discharge of Sureties; 43 Am.Jur., Public Officers, § 427. The facts in Federal Surety Co. v. Board of Education of Marshall County, 222 Ky. 502, 1 S.W.2d 954, are strikingly like the facts in the instant case.

The act of the public officials in lulling the surety into renewing the sheriff’s bonds for the following year by concealing the known facts of the previous defalcations is inexcusable from the standpoint of good faith and ethical conduct. It is defensible legally only on the ground that they were acting under the cloak of officialdom and the doctrine of public protection recited above. The appellee insists that the company voluntarily renewed the bonds without inquiry as to whether there had been any irregularity or dereliction on the part of the sheriff in accounting for taxes he had collected and should not be heard to complain. In the commercial world it is not necessary to enable a surety to avail himself of the defense of fraudulent concealment that the obligee should have actively solicited the surety to become bound on the bond. Bellevue Building & Loan Association v. Jeckel, 104 Ky. 159, 46 S.W. 482, 20 Ky.Law Rep. 460. But the surety company knew, or should have known, that equitable estoppel has no application to public officials, as above declared, and governed itself accordingly.

The surety cannot, therefore, be relieved of liability for the failure of its principal to account for taxes collected for the year 1955-1956.

There is a difference here from the officials’ omission to give notice within ninety days of the 1954 defalcation. Here the concealment of the previous default did not violate a statutory duty or a condition precedent to recovery on the contract of surety-ship, a provision which is consonant with public policy. Wilhoit v. Furnish, 295 Ky. 356, 174 S.W.2d 515, 149 A.L.R. 941.

To the extent of the $16,116.44, the amount adjudged for the year 1954 — 1955 shortage, the judgment is reversed. To the extent of the balance of the judgment, i. e., for taxes collected for the year 1955— 1956, the judgment is affirmed.

MOREMEN, STEWART and PAL-MORE, JJ., dissenting.

PALMORE, Judge

(dissenting in part).

The doctrine that in their dealings with the public the arms and agencies of the state are held to different and lower moral standards than those that are binding upon everyone else is an offensive anachronism. If it cannot be defended from the standpoint of good faith and ethical conduct, as the majority opinion admits, then it is an ugly parasite on the face of the law and ought to be removed. As the rule was created by the courts in the first place, and continues in force by no other authority, it is right and proper that the injustice be likewise corrected by the courts. I therefore dissent from that portion of the foregoing decision which holds the principle of estoppel inapplicable to the acts of public officials.

STEWART and MOREMEN, JJ., concur in this dissent.


author: MILLIKEN, Judge.

text:
    William R. SMITH, Appellant, v. BLUE DIAMOND COAL COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    June 8, 1962.
    Cordell H. Martin, Hindman, C. W. Napier, Jr., Hazard, for appellant.
    Maxwell P. Barret, Willis W. Reeves, Richard D. Cooper, Hazard, for appellee.
   MILLIKEN, Judge.

The sole question on this appeal is whether the Workmen’s Compensation Board based its refusal to grant compensation on competent evidence of probative value. The Circuit Court agreed with the Board and we are of like opinion.

The claimant, William R. Smith, a coal miner approximately forty-three years of age, became disabled in 1958 and has been unable to work since. There seems to be no doubt that he is totally disabled from doing any work of a physical nature, and the case turned on whether the claimant’s disability is attributable to silicosis incurred in his work or whether his disability is attributable to causes of no occupational origin. The medical evidence was so conflicting that the Board directed claimant to submit himself for examination to the Lexington Clinic. The conclusion was reached that Smith was suffering from bronchial asthma, possible emphysema and extreme nervousness, but there was no evidence of pneumoconiosis or silicosis. The findings of the Board-appointed examiner were substantially in accord with the conclusions reached by the physicians at the Hazard Miners Memorial Hospital where the claimant was examined when his disability first became apparent.

While the claimant presented medical evidence to the effect that he was suffering from silicosis and possible secondary emphysema, the Board apparently was impressed by the fact that the defense physicians and the Board’s appointed examiner were unable to find evidence of a totally disabling occupational disease in X-ray pictures or other tests and examinations. Since the Board concluded that claimant’s disability was not of a vocational origin, it necessarily followed that any neurosis the claimant may have developed did not arise from his occupation.

We think that the Board clearly had probative evidence on which to base its findings, and for that reason we affirm the judgment.


author: WILLIAMS, Judge.

text:
    MUD BRANCH OIL AND GAS COMPANY et al., Appellants, v. J. B. HAWK, Appellee.
    Court of Appeals of Kentucky.
    June 8, 1962.
    J. Wood Vance, Jr., Glasgow, for appellants.
    Charles R. Richardson, Munfordville, for appellee.
   WILLIAMS, Judge.

Judgment in a forcible detainer action was rendered in favor of appellee in the Hart County Court. The appellants took an appeal to the Hart Circuit Court. That court held that a traverse bond offered by appellants was insufficient, and dismissed the appeal. The appellants are here on the theory that the action taken hy the circuit court was arbitrary.

The narrative statement of evidence as found to be true by the circuit court reveals that one bond offered by appellants was signed by one of the appellants, Eddie Hurst, with Kenneth Henderson as surety. The court found that the value of the surety’s property when reduced hy allowable exemptions would be inadequate to indemnify the appellee from all costs and damages. Appellants were given two weeks to execute a new bond. Within that period a bond signed by Eddie Hurst and E. R. Henderson, as officers of Mud Branch Oil and Gas Company, and by Eddie Hurst individually, was offered. There was no surety on the bond. The circuit court found it to be insufficient, and dismissed the appeal.

We note that the surety on the first bond was inadequate and that there was no surety on the second. The action taken by the circuit court was not such an abuse of discretion as to be arbitrary. See McDonald v. Jenkins, 93 Ky. 249, 19 S.W. 594; Trivette v. Stratton, 276 Ky. 774, 125 S.W.2d 236.

Judgment affirmed.


author: STANLEY, Commissioner.

text:
    Irene DARNELL, Appellant, v. Inez HAMILTON, Appellee.
    Court of Appeals of Kentucky.
    June 8, 1962.

      Charles E. Lowe, Pikeville, for appellant.
    Edward R. Hays, Baird & Hays, Pike-ville, for appellee.
   STANLEY, Commissioner.

This action by the appellant, Irene Darnell, against the appellee, Inez Hamilton, for damages for personal injury sustained in an automobile accident occurring in Virginia was tried under Virginia law. The trial court directed a verdict for the defendant at the close of the plaintiff’s evidence.

Mrs. Darnell, her mother and brother-in-law were guests in the car of her sister, Mrs. Hamilton, traveling eastwardly on U. S. Highway No. 460. As they neared Grundy, Virginia, on a long stretch of straight road, Mrs. Hamilton,' after blowing her horn, was in the act of passing a small truck ahead of her when it speeded up and shortened the space between it and a large truck heavily loaded. As no traffic was approaching and the way was clear, Mrs. Hamilton again sounded her horn and started to pass the large truck. As she was doing so, without having given any signal of an intention to turn, the truck turned toward the left into her traffic lane and caught the bumper of her automobile. She lost control, and the car went over an embankment, and Mrs. Darnell was injured. At that point the Looney Creek Road led off from the highway (a “T” intersection), and the truck was apparently turning into it. There were no signs indicating an intersection ahead, and the defendant did not know of it. The plaintiff, her mother and the defendant (called as on cross-examination) agreed on the above essential facts.

Section 8-646.1 of the Code of Virginia precludes a nonpaying guest in an automobile from recovering damages against his host for injury resulting in its operation unless the injury “was caused by or resulted from the gross negligence or willful and wanton disregard of the safety of the person * * * being so transported on the part of such owner or operator.”

The appellant argues that the question of whether the defendant was grossly negligent in attempting to pass the truck at a road intersection should have been submitted to the jury. The Virginia Supreme Court holds, as do we, that ordinarily the question of negligence, whether it be gross or ordinary, is one for a jury to determine. It has defined gross negligence in an automobile accident case as “that degree of negligence which shows an utter disregard of prudence amounting to complete neglect of the safety of another. There is no sharp, well-defined, dividing line between simple negligence and gross negligence. The distinction is one of degree.” Wright v. Osborne, 175 Va. 442, 9 S.E.2d 452.

We are cited to no Virginia case holding that circumstances like those proven here without contradiction warranted the submission of the question of gross negligence to a jury. We concur in the trial court’s ruling that as a matter of law the plaintiff failed to prove such negligence.

Judgment is affirmed.


text:
    Pauline McKnight SELLARDS, Appellant, v. B. & W. COAL COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    June 8, 1962.
    Clyde Hobson, Hobson & Stephens, Pike-ville, for appellant.
    Charles Tackett, Scott Reed (Wallace, Turner & Reed), Lexington, Ky., for ap-pellees.
   MILLIKEN, Judge.

Ben Jeff Sellards was killed on September 24, 1958, while operating a bulldozer on property of the appellees, B. & W. Coal Company, et al., a partnership, and his widow, Pauline McKnight Sellards, on behalf of herself and three children, was denied an award by the Workmen’s Compensation Board on the ground that the deceased was an independent contractor and not an employee of the B. & W. Coal Company at the time he was killed. The Circuit Court affirmed the conclusion of the Board, and the question presented on this appeal is whether there was substantial evidence to support the conclusion reached.

The evidence discloses that one Clifford Wilson owned a bulldozer which the deceased agreed to operate for him, the two men to split the profits equally between them. Clifford Wilson had previously obtained a grading job at $8 an hour bulldozing on the leased property of the ap-pellees, Clyde Wilson and Willie Blackburn, who were partners doing business as the B. & W. Coal Company, and on the day of the fatal accident the Coal Company representatives showed Clifford Wilson the work they had staked out for the bulldozer. Clifford could not operate the dozer and for that reason he worked out the agreement of splitting the profits with the deceased who could operate the dozer. The father of the deceased testified that it was his understanding from a conversation he had with Willie Blackburn after the accident that the B. & W. Coal Company had insurance and they would he glad to pay for the son’s death. Clifford Wilson testified that Clyde Wilson agreed to pay $8 an hour for the use of the operator and bulldozer, that nothing was said about how the operator of the bulldozer would be paid, and Clyde Wilson confirmed this testimony.

The tests or factors traditionally used for determining the criteria of one’s employment status are contained in Restatement of the Law of Agency 2d, Section 220, subsection 2, and are substantially the same as the criteria cited in the First Edition of the Restatement of Agency which is quoted in Locust Coal Company v. Bennett (1959), Ky., 325 S.W.2d 322, 324, and in which opinion we said, “No one of these factors is determinative, and each case must be decided on its own particular facts.”

It seems clear from the record before us that' the decedent and Clifford Wilson had agreed to take whatever specific job they could get for the bulldozer and split the profits, that they' were merely doing a job for the B. & W. Coal Company, that representatives of the latter staked out the work to be done but left the doing of it to the operator of the bulldozer. We find no evidence that the decedent was misled in any way into believing he was protected by Workmen’s Compensation coverage of the B. & W. Coal Company when he undertook to operate the bulldozer on their property. We think the evidence justifies the conclusion reached by the Board that the deceased was not an employee of the B. & W. Coal Company, but rather an independent contractor doing whatever job came his way. This is not a case where the construction of a written contract is involved as was presented in Brewer v. Millich (1955), Ky., 276 S.W.2d 12. There is no ‘ evidence indicating that the parties thought they were creating a relationship of master and servant when this particular job was undertaken. In fact, whatever payment the B. & W. Coal Company was to make was to be made to Clifford Wilson at the completion of the work and Clifford thereafter was to split the profit with the decedent

The judgment is affirmed.


text:
    Bill SULLIVAN, Appellant, v. Inez HAMILTON et al., Appellees. Nancy DOTSON, Appellant, v. Inez HAMILTON et al., Appellees.
    Court of Appeals of Kentucky.
    June 8, 1962.
    Charles E. Lowe, Pikeville, for appellant.
    Edward R. Hays, Baird & Hays, Pike-ville, for appellees.
   STANLEY, Commissioner.

These consolidated cases are companions of Darnell v. Hamilton, decided today. The complaints of Bill Sullivan and Nancy Dotson were filed against both Inez Hamilton and her husband, John L. Hamilton, who, it was alleged, owned the automobile being driven by his wife with his consent and authority. On the occasion of the accident Sullivan, a brother-in-law, and Mrs. Dotson, the mother of Mrs. Hamilton, were also guests in the automobile, and they too suffered injuries. We affirmed the judgment rendered upon a directed verdict for the defendant in Mrs. Darnell’s case. The trial court also directed a verdict for the defendants in these cases.

The only difference in the two cases is that here Sullivan testified and Mrs. Darnell did not, and a witness, Rush Young, was introduced by the plaintiffs. Mrs. Dotson gave the same testimony in both cases, which was to the effect that the big truck, referred to in the other opinion, turned off in front of the defendants’ car without having given a signal. Sullivan testified that the defendants’ car passed a passenger automobile, and Mrs. Hamilton blew her horn to signal her passing of the small truck ahead, but it blocked her from going in front of it as she was swinging back to the right side of the road. She could see a long way ahead and no other vehicle was approaching. The driver of the big truck turned across the road, and she ran into it. He testified Mrs. Hamilton did not blow her horn. He had testified in a pretrial deposition that it appeared the big truck “laid over” to let her pass.

Rush Young was driving the passenger car which the defendant first passed. Said he, “She passed me up like a hobo passing up — like a train passing up a hobo.” Further, “I never heared no hom.” The driver of the big truck, he testified, gave a “signal,” which he saw before Mrs. Hamilton started to turn. He did not elaborate.

The additional evidence, it seems to us, fails to establish gross negligence on the part of the defendants. The trial court, therefore, properly directed a verdict for the defendants.

Judgment affirmed.


author: MOREMEN, Judge.

text:
    A. T. MORTON et al., Appellants, v. Rev. W. S. JONES et al., Appellees.
    Court of Appeals of Kentucky.
    June 8, 1962.

      Miller, Griffin, Marks & Stephens, Robert F. Stephens, Lexington, for appellants.
    Wheeler B. Boone, Lexington, for ap-pellees.
   MOREMEN, Judge.

This appeal presents the problem of the interpretation of a holographic will and, specifically, whether the will devised a fee simple title to certain real estate.

The real property consisted of a house within the city limits of Lexington and a forty-four acre tract of Fayette County farm land which apparently had been divided into two tracts. One of the tracts was a small one with a house, and this lot adjoined the-larger tract.

The appellants are collateral heirs at law of the decedent and appellees are those who claim a devise of fee simple title under the will.

Mary Talbert Black executed the will on July 15, 1956. She died in October of 1957, and her will was admitted to probate. By declaratory judgment the court decided that the fee of the real property vested in the appellees subject to two life estates which we will discuss later.

Before quoting from the will those specific sections which gave rise to this law suit, it is proper to observe that the will generally disclosed that testatrix knew exactly the nature and extent of her property and the persons who were the natural objects of her bounty. The language is not always in formal legal words, but in most instances fairly conveys exact meaning. To practically all of her heirs at law (under the statutes) she made specific bequests ranging from one dollar to one hundred dollars. The portions of the will which have given the litigants particular concern are Items II, III and a portion of Item IV. These read:

ITEM II

“My Farm located on the Bryant Road Fayette County and my house located at 643 North Upper Street Lexington, Kentucky are to- be occupied or rented for (10) Ten years. My sister Maggie can have the house to live in for her life time now since the blind can live in a home, then it is sold or rented at her death. The property divided as the other. Should there be any debt on the place. Let the rent pay it. After that the rent is to be divided once every - year with the following persons: James H. Morton ½ Maggie Talbert does not get any of the rent if she lives in the house on North Upper Street Rev. W. A. Jones, ⅛ Pleasant Green Baptist y6 Church.”

ITEM III

“I give and bequeath to Arthur Morgan the farm tools he is now useing and $100.00 One Hundred dollars cash the House where he now lives to him for his life time and the lot where the house stands. After his death, the house and lot will be rented with the other property.

“Arthur Morgan not mortgage the house. Just his family (one family)

“He can rent the Farm on Shares as he now has it.”

ITEM IV

“Maggie Talbert my sister, may have anything in either house that she wants.

“I give $75.00 Seventy five dollars each year for keeping up all the graves.

“There is ⅛ I did not give in order that I may need another stone.”

We have emphasized the words, “The property divided as the other” because they are the gravamen of this case It will be •noted that in the first sentence testatrix describes her two pieces of property, viz.: the farm and the Lexington house. In that section she does not recognize the subdivision of the farm land and the lot upon which the house stands. That is done under Item III and it seems there was in fact no actual subdivision of the farm property. The terms, “the house and lot” and “the farm” are used as a method of handy description.

It is remarked that after describing her property in one sentence she grants a life estate in the next sentence. The following sentence contains the cryptic devise, “The property divided as the other.”

Generally the word “other” means “being the one of two (or more) distinct from the one already mentioned or understood.” Here the word is used conversely because “the other” had not been previously mentioned, hut “the other” does follow immediately so we have no difficulty in believing the testatrix meant that she had made two •divisions of the property, the real estate and the rent, and, when she designated one ■of the divisions, the fact that “the other” follows rather than precedes, has no significance to us because both divisions were made under the same items. Under the same item she divides the rent for a period •of ten years between the three appellees and reserves one sixth for a purpose which we think the court properly held created a trust to supply a necessary stone for the grave and similar purposes.

No party to this litigation is claiming that •the will, because of uncertainty or of obscurity in the meaning of any of its terms, •is invalid. Appellants contend solely that the will does not convey a fee simple title principally because no formal legal words of devise of the fee simple title were employed nor were any of the requisite words .of purchase or limitation.

We must assume the attitude suggested in Jennings v. Jennings, 299 Ky. 779, 187 S.W.2d 459, where we said :

“We bear in mind that this will was composed and written by laymen. It has been said that a will drawn by a layman must be construed as a layman would construe it. In re Tracy’s Estate, 143 Misc. 800, 258 N.Y.S. 657. At least the court will regard the language of the will as used in its popular rather than in its technical meaning. Page on Wills, Secs. 921, 1009.”

We find no difficulty in concluding that when either a layman or a lawyer speaks of dividing property without any further limitation as to the nature of the grant, a division of full ownership is intended. Here, of course, the division was subject to two life estates. In Carpenter v. Wells’ Adm’r, Ky., 272 S.W.2d 659, it is said:

“That in cases of doubt and where the employed language may be interpreted so as to create intestacy as to a part of the estate, or may appropriately be construed as disposing of all of it, the latter interpretation will be adopted, upon the ground that it is presumed that, when the testator goes through the formality of executing his will, he thereby intends to make a complete disposition of his property and to die intestate as to none of it.”

In Pimpel v. Pimpel, Ky., 253 S.W.2d 613, 35 A.L.R.2d 1092, we held that the presumption cannot be applied to supply a disposition which was not made or intended, but that condition does not exist here. It seems plain to us that the testatrix intended to dispose of her property in the manner indicated by the judgment of the circuit court.

The judgment is affirmed.


author: CALVERT, Chief Justice.

text:
    TARRANT COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NUMBER ONE, Petitioner, v. Will WILSON, Attorney General of Texas, Respondent.
    No. A-8969.
    Supreme Court of Texas.
    June 13, 1962.
    Brown, Herman, Scott & Young, Fort Worth, McCall, Parkhurst, Crowe, McCall & Horton, Dallas, for relator.
    Howard Mays, Asst. Atty. Gen., Austin, for respondent.
   CALVERT, Chief Justice.

Water District seeks in this proceeding to compel the Attorney General to approve an issue of its bonds.

The Attorney General has declined to approve the issue on the ground that issuance of the bonds and creation of the indebtedness evidenced thereby has not been authorized by vote of the qualified property tax-paying voters of the district as required by Section 59 of Article 16 of the Constitution of the State of Texas, Vernon’s Texas Constitution. A brief resume of the facts is essential to an understanding of the Attorney General’s position.

Water District, situated entirely within Tarrant County, was created in 1924. On-October 30, 1959, the district’s Board of Directors ordered an election to determine whether the district should be authorized' to issue its bonds in the sum of $55,000,-000.00 for the construction of facilities, and whether it should be authorized to pledge revenues and levy and collect ad valorem taxes on all taxable property in the district for the payment of the bonds and interest thereon. The election was duly held on December 2, 1959, and the authority sought was granted. Under the authority given, the district issued its bonds in the sum of $6,000,000.00 on February 25, 1960. Those bonds were sold and delivered to purchasers- and are now outstanding.

In 1957 the Legislature enacted a statute authorizing Water District to annex territory situated in Tarrant County and providing a procedure therefor. See Acts 1957, 55 Leg.Ch. 268, p. 569, Vernon’s. Ann.Civ.St. art. 828D-207. The Board of Directors is empowered to act on behalf of the district. If the Board finds that annexation of certain territory “would be to the interest of the territory and the District,” it may request the Commissioners Court to annex such territory on such conditions, if any, as the Board may stipulate. The Act then provides for an annexation election to be held in the territory to be annexed, with authority to submit also at the election “a proposition for the assumption of its [the annexed territory’s] part of the tax-supported bonds of the District then outstanding and those theretofore voted but not yet sold, and for the levy of an ad! valorem tax on taxable property in said territory along with the tax in the rest of the District for the payment thereof.”

Following the prescribed statutory procedure, an election was ordered and was held in the Village of Edgecliff on two propositions, summarized as follows: (1) Whether the territory constituting the Village of Edgecliff should be annexed to Tar-rant County Water Control and Improvement District No. 1, and (2) whether the annexed territory should assume its part of the outstanding tax-supported bonds and of those theretofore authorized by the voters of the District but not yet issued. There was a favorable vote on both propositions. Thereafter the Board of Directors of Water District directed issuance of its bonds aggregating $13,500,000.00. It is this issue the Attorney General has declined to approve. As heretofore indicated, declination is rested solely on the ground that the issue has not been authorized as required by Section 59, Article 16 of the Constitution.

Section 59 of Article 16 is the conservation amendment to the Constitution and was adopted in 1917. Paragraph (b) of the Section authorizes the creation of conservation and reclamation districts "[as] governmental agencies and bodies politic and corporate”. Paragraph (c) provides:

“The Legislature shall authorize all such indebtedness as may be necessary * * * and all such indebtedness may be evidenced by bonds of such conservation and reclamation districts, to be issued under such regulations as amy [may] be prescribed by law * * *; provided the Legislature shall not authorize the issuance of any bonds or provide for any indebtedness against any reclamation district unless such proposition shall first be submitted to the qualified property tax-paying voters of such district and the proposition adopted.”

The position of the Attorney General is that under the language of the proviso of paragraph (c) a district enlarged by annexation may not issue bonds unless the issue is authorized by a vote of the qualified property tax-paying voters of the district as it is constituted at the time of issuance, and that the Legislature is without power to circumvent the constitutional requirement for a district-wide election by authorizing annexed territory by election to assume “its part” of an issue authorized by election before annexation. Thus, the only question presented is whether because of the annexation a second district-wide election is prerequisite to the validity of the bond issue. We think not.

The underlying reason for refusal by the Attorney General to approve the bond issue is stated by him as follows:

“There is no way to determine whether the original election held in the District on December 2,1959, would have carried, and we can not say, as a matter of law, that it would have carried if the voters at that time had known that other areas would later be annexed and participate in the ownership and benefits of the project to be constructed by the issuance of the bonds. Conceivably, through the procedure followed, the original District could be doubled or tripled in size resulting in the dilution of the rights of the tax-paying voters of the original District. Under such procedure this particular group of voters might be forced to stand by powerless to prevent the bulk of the improvements being located at some distant place not even part of the original District.”

That reasoning seems to argue more against the wisdom of permitting the district to annex territory without a favorable vote of the qualified voters of the original district than against validity of the bond issue. An answer to the argument is that the annexation statute was in existence when the voters of the original district authorized issuance of the bonds, and they are presumed to have known that other territory might be added without their approval by vote.

The only case cited by the Attorney General is Brown County Water Improvement District No. 1 v. Austin Mill and Grain Co., 135 Tex. 140, 138 S.W.2d 523. In that case the district directors sought to levy and collect a maintenance tax without an authorizing election. The power to do so was denied by this court on the ground that such a tax would constitute a lien on property in the district and would thus create an indebtedness within the meaning of the proviso quoted above. The decision does not rule the question in this case.

Water District cites no cases in point. Several cases from other jurisdictions are cited for the proposition that constitutional prohibition against school districts creating indebtedness without an election does not prohibit reorganized or enlarged school districts from assuming existing indebtedness without an authorizing election. But that is not the problem here.

Our conclusion that an election in the enlarged district is not prerequisite to the power to issue the bonds stems from recognition of the corporate character of the district. Indebtedness is not created until bonds are issued and sold, Town of Freeport v. Sellers, 144 Tex. 389, 190 S.W. 2d 813; City of Austin v. Valle, Tex.Civ.App., 71 S.W. 414, writ refused, but the Board of Directors of the corporate entity was empowered by the 1959 election to create indebtedness to the extent of $55,-000,000.00 by the only voters then having a right to vote. The $13,500,000.00 issue will not create an indebtedness in excess of that sum. We find nothing in the Constitutional provision which would authorize us to say that the power once given is nullified by the subsequent addition of property to, or inclusion of other voters in, the district.

This disposes of the only objection to the bond issue raised by the Attorney General and we assume he will approve the bond issue in compliance with this opinion. If he should fail to do so, writ of mandamus will issue as prayed.


author: SMITH, Justice.

text:
    Ex parte Thomas Wilburn JONES.
    No. A-8915.
    Supreme Court of Texas.
    June 13, 1962.

      Merritt H. Gibson, Longview, for relator.
    K. Baker, Crawford Parker, Jr., Carthage, for respondent.
   SMITH, Justice.

Relator, Thomas Wilburn Jones, has filed in this Court a petition for a writ of ha-beas corpus alleging that he is illegally confined and illegally restrained in his liberty at Carthage, in Panola County, Texas, by Johnie Spradley, the Sheriff of said county. By this original proceeding Jones seeks release from the restraint of a judgment of the District Court of Panola County, Texas, adjudging him to be in contempt of that court.

It is necessary for this Court to state the facts, although we have no authority to evaluate facts. We may consider the facts only for the purpose of determining whether they constituted acts sufficient to confer jurisdiction upon the court to make the particular order. Ex parte Tyler, 152 Tex. 602, 261 S.W.2d 833; Ex parte La Rocca, 154 Tex. 618, 282 S.W.2d 700; Ex parte Fisher, 146 Tex. 328, 206 S.W.2d 1000, 1003.

The facts are these: The Relator, Thomas Wilburn Jones, and Marjorie Evelyn Jones, husband and wife, were legally divorced and the judgment dissolving the bonds of matrimony was entered by the District Court of Panola County, Texas, on September 14, 1961.

On August 30, 1961, prior to the date of the judgment of divorce, the Relator and Mrs. Jones executed a contract in settlement of their community property rights. The divorce judgment of September 14, 1961 incorporated the contract by reference, subject only to the modification (also by agreement) that the house should be built in Woodcrest Addition instead of Bel-Aire Addition. The pertinent portion of the contract is as follows:

“Party of the First Part (Petitioner) hereby agrees to construct, or cause to be constructed, a three (3) bedroom brick veneer residence, with living room, kitchen-den combination, one (1) bath and single carport upon a lot in the Bel-Aire Subdivision to the City of Carthage, Texas, on such lot and on such plans as the Parties shall agree upon and said lot and improvements to be conveyed and title thereto vested in Milton Payne and Lewis Pool, Trustees for Tommie Lynn Jones, Jennifer Jones, Melinda Jones and Tenna Marie Jones to be held and administered under the terms of the Trust Agreement and executed by the parties hereto on the (1) day of (April), 1961, subject however to the covenant and right of Party of the Second Part (Marjorie Evelyn Jones) to the use of such house and lot as a residence for Party of the Second Part and the children born of this marriage, in her custody, for as long as Party of the Second Part shall desire to use same as her homestead, or until such time as the Party of the Second Part shall remarry, and during the use by Party of the Second Part she shall pay all taxes assessed against said lot and improvements. It is understood that such rights and covenants in favor of the Party of the Second Part shall be incorporated and made a part of the instrument of conveyance of such property in trust, subject, however, also to a Vendor’s Lien to be reserved in favor of Party of the Second Part securing the payment of the written agreement as described and set forth under Paragraph B(4) hereafter. Such improvements to be completed within ninety (90) days after the approval of plans and specifications by Party of the Second Part.”

On December 6, 1961, Mrs. Jones filed a complaint alleging that Jones was in contempt because he had failed and refused to comply with the Court’s judgment “ * * * in that he has not built or caused to be built that certain dwelling house as provided in Paragraph III, Subsection A of the aforementioned agreement, all as provided for in the judgment of this Court.”

We note that at the time of the filing of this complaint the plans and specifications for the residence had not been agreed upon by the parties. Therefore, the ninety-day period fixed in the contract for the completion of the construction of the improvements had not commenced to run when this complaint was filed.

On December 19, 1961, the court held Jones in contempt for failure to complete the improvements as provided by the contract, and sentenced him to confinement in the county jail for seventy-two hours, and thereafter until he had complied with the following order of the court:

“1. Pay to the Petitioner the sum of $130.00, being the amount improperly charged for house payment against the $250.00 indebtedness.
“2. Pay the automobile insurance on Petitioner’s automobile that was granted to her in the said above referred to Judgment entered on the 14th day of September, 1961.
“3. That Defendant will complete a three-bedroom, brick veneer residence with living room, kitchen-den combination, one bath, and. single carport on the lot specified in the above referred to Divorce Decree, im a good and workmanlike manner, according to good and ordinary construction practice from one of the plans substantially agreed upon by the parties subject only to the right of this Plaintiff to select all color schemes and finishes, but not to include materials of construction.”

The order of December 19, 1961, further reflects that the court appointed Robert Brown, III, of Carthage, Texas, “ * * * as Chancellor of this Court to certify to the proper construction of the said brick veneer residence and to make weekly reports to the Court to the proper construction including materials and workmanship to insure the adequacy of the residence herein ordered built so that the Court can determine whether or not such dwelling is commensurate with the ordinary three bedroom brick veneer residence in this vicinity.” This order further provides that “the commitment of this Defendant will be suspended until February 23rd, 1962, at 10 a. m., and the Court directs both Petitioner and Respondent to be present at that time so that the Court may determine whether or not the Defendant is discharged from this contempt or whether or not commitment will issue.” [Emphasis added.]

Between the date of his appointment and February 13, 1962, Robert Brown, III, made several reports to the court by letter as to the progress of the work on the dwelling, and on February 13, 1962, made a report to the court as follows:

“All necessary corrections as listed in our letter of February 12, 1962 have been completed on the above named case. The writer attempted to contact the court by phone this date concerning the heating unit as previously discussed, but was unable to make connections. As far as the writer is concerned this job is complete and in accordance with standard building practices in the particular area of its location, and we would approve it accordingly. With this writing we are leaving the decision of the heating unit to be settled by the court.”

By agreement of the parties, the next hearing on this matter was held on February 20, 1962. The only purpose of this hearing was to determine whether Jones should be discharged or commitment should issue. The court’s order made after such hearing recites that the court heard evidence “including report and testimony of R. G. Brown, 3rd, the Chancellor appointed by the court, to the effect that the house in question had not been completed according to ordinary good construction practice, as required by the original judgment, until Respondent completed the installation of an attic fan and a central heating unit, properly connected to the duct system which had been installed, and the court further having found that Respondent had not delivered for the benefit of the minor children the lot and residence described in the property agreement and judgment until the proper Trustees had been delivered the title to such property free and clear of the existing Mechanic’s and Materialman’s Lien thereon held by the mortgagee builder or its assigns.”

The order further recites that

“ * * * said Thomas Wilburn Jones, Respondent, continues in contempt of this Court as heretofore adjudged and will not be purged to such contempt until he has complied with the following
“1. Deliver a Deed of Conveyance to the Trustee for the minor children TOMMIE LYNN, MELINDA, TEN-NA MARIE and JENNIFER JONES, to the following described property:
“A lot or parcel of land located in the A. Moorman Survey, Panola County, Texas, and being further described as the North 110 feet of Lot 14, Block 94 — A, Woodcrest Addition to the City of Carthage, as per plat recorded in the Plat Records, Panola County, Texas, free and clear of all incumbrance, save and except balance now due on that certain first lien in favor of Petitioner in the original amount of $6,-000.00, said lien being to secure future property settlement payments.
“2. Install an 80,000 B.T.U. Heating System in said above described residence.
“3. Install a 42 inch attic fan in said above described residence.
“It is further ORDERED that the commitment of this Defendant will be further suspended until March 16, 1962, at 10 A.M., and the Court directs both Petitioner and Respondent to be present at that time so that the Court may determine whether or not the Defendant is discharged from this contempt or whether or not commitment will issue.”

Pursuant to the February 20, 1962 order, the court on March 16, 1962, held another hearing to determine whether or not Jones had complied with the conditions of the February 20th order. At the close of the hearing the court entered its final order in which it is recited that “ * * * by order on the 20th day of February, 1962, the Court found that the Respondent, Thomas Wilburn Jones, remained in contempt of this Court for the failure to comply with the Judgment of this Court in the following respects, to-wit:

“1. That the Respondent, Thomas Wilburn Jones, had not completed according to good, ordinary construction practices, the dwelling house as provided for in the original property settlement which was incorporated and made a part of the final judgment in this cause, in that he had not completed the installation of an attic fan and a central heating unit properly connected to the duct system which had been installed.
“2. That the Respondent had not delivered a Deed of Conveyance to the Trustees for the minor children free and clear of incumbrance as provided for in the aforementioned judgment; * *

The order of March 16, 1962 further recites that on that date evidence was again heard by the court on the question of whether Jones had “purged himself of contempt by complying with the order of this Court rendered on the 20th day of February, 1962.” The court found that Jones had not complied with the February 20th order.

Based upon these findings, the court ordered, adjudged and decreed that “ * * * the said Thomas Wilburn Jones is guilty of contempt of this Court, and it is hereby made final and absolute, that the said Thomas Wilburn Jones is hereby sentenced to 72 hours in the county jail of Panola County, Texas, and thereafter until such time that he has complied with the following:

“1. Completed the dwelling herein referred to in a good and workmanlike manner by installing a 80,000 B.T.U. heating system, and a 42 inch attic fan in said dwelling.
“2. Deliver a Deed of Conveyance to the Trustees for the minor children TOMMIE LYNN, MELINDA, TENNA MARIE and JENNIFER JONES, to the following described property:
“A lot or parcel of land located in the A. Moorman Survey, Panola County, Texas, and being further described as the North 110 feet of Lot 14, Block 94-A, Woodcrest Addition to the City of Carthage, as per plat recorded in the Plat Records, Panola County, Texas, less 25 feet previously sold James Marshall,

free and clear of all incumbrance, save and except balance now due on that certain first lien in fayor of Petitioner in the original amount of $6,000.00, said lien being to secure future property settlement payments, all as is provided for in the property settlement agreement and made a part of the final judgment of this cause; * * *.”

Although the court did not, by either the judgment of February 20, 1962 or the judgment of March 16, 1962, expressly find that Jones had purged himself of contempt by paying to Mrs. Jones the sum of $130.00 and paying to Mrs. Jones the automobile insurance referred to in the original contempt order dated December 19, 1961, we are of the opinion and so hold that, regardless of whether the trial court had jurisdiction to make the order, the court, by its judgments of February 20, 1962 and March 16, 1962, in legal effect, found that Jones had purged himself of contempt in so far as these particular items were concerned.

This leaves for determination the question of whether the court had jurisdiction to make and enter its final judgment of contempt in this case. We have concluded that the contempt judgment is void, and, therefore, is subject to collateral attack. See Ex Parte La Rocca, supra.

Relator takes the position that the contempt orders of the District Court of Panola County, dated December 19, 1961, February 20, 1962, and the order of commitment dated March 16, 1962, are void for the reason that the contractual provisions contained in the September 14, 1961 divorce decree cannot be enforced by contempt proceedings.

Relator and Respondent, the parties to the original divorce decree, entered into the property settlement agreement and the court approved the agreement and made the same a part of the divorce decree by reference. The settlement agreement was filed for record in the office of the County Clerk of Panola County, Texas, on September 14, 1961, and recorded in the deed records of the county.

Upon the face of the judgment, is appears that the provisions relating to the agreement to construct the residence and convey the property to Trustees for the benefit of the minor children are based entirely upon the terms of the settlement agreement between the parties. This agreed judgment must be interpreted as if it were a contract between the parties and the interpetation thereof is governed by the laws relating to contracts, rather than laws relating to judgments. See Plumly v. Plumly, Tex.Civ.App., 210 S.W.2d 177, no wr. hist.; Turman v. Turman, 123 Tex. 1, 64 S.W.2d 137; Tyner v. City of Port Arthur, 115 Tex. 310, 280 S.W. 523; Edwards v. Gifford, 137 Tex. 559, 155 S.W. 2d 786. It is well settled that whether the trial court has the power and authority to enforce a decree by contempt proceedings depends upon the nature of the decree. It is only when the nature of the decree is such as is authorized by statute that such decree can be enforced by contempt proceedings. Under Article 4639a, § 1, Vernon’s Annotated Civil Statutes, the court is given the power and authority to enforce its decree by a contempt proceed ing, Mobley v. Mobley, Tex.Civ.App., 221 S.W.2d 565, no wr. hist., provided the decree is of such nature as is authorized by the statute. However, no part of the agreed settlement decree in this case is derived from the statute or controlled by the provisions thereof. We do not have a situation such as was presented in the case of Mobley v. Mobley, supra. In that case the trial judge treated the matter of child support and the settlement of community property rights as separate matters. The Court of Civil Appeals, in passing upon the question presented in the Mobley case, said that the decree reflected that the provisions relating to child support were based upon the terms of Article 4639a, supra, and that under the provisions of the statute such support provisions could be enforced by contempt proceedings and were subject to modification under the express terms of the statute. However, the Mobley case clearly announces the principle that this rule has no application in a case such as we have here where the contractual provisions, even though made a part of the decree, do not fall within the statutory orbit. The contractual provisions in the settlement decree or agreed judgment are neither subject to modification nor can they be enforced by contempt proceedings.

It follows that the District Court of Panola County, Texas, was without jurisdiction to enter the contempt order and all proceedings herein are void. Relator, Jones, is discharged from custody and he and his sureties on the bond furnished for his release pending our decision are released from further liability.

      . See Rule 171, Texas Rules of Civil Procedure Master in Chancery.

      . “Section 1. Each petition for divorce shall set out the name, age, sex and residence of each child under eighteen (18) years of age born of the marriage sought to be dissolved, if any such child or children there be; and if there be no such child or children, then the petition shall so state. No court having jurisdiction of suits for divorce shall hear and determine any such suit for divorce unless such information is set out in such petition or in each cause of action for divorce. Upon the trial of any such cause, and in the event a divorce is granted by the court, if there are such minor children, it shall be the duty of such trial court to inquire into the surroundings and circumstances of each such child or children, and such court shall have full power and authority to inquire into and ascertain the financial circumstances of the parents of such child or children, and of their ability to contribute to the support of same, and such court shall make such orders regarding the custody and support of each such child or children, as is for the best interest of same; and said court may by judgment, order either parent to make periodical payments for the benefit of such child or children, until same have reached the age of eighteen (18) years, or, said court may enter a judgment in a fixed amount for the support of such child or children, and such court shall have full power and authority to enforce said judgments by civil contempt proceedings after ten (10) days notice to such parent of his or her failure or refusal to carry out the terms thereof, and for the purpose of ascertaining the ability of the parents of such child or children to contribute to the support of same, they may be compelled to testify fully in regard thereto, under penalty of contempt of court, as in other case. Said court shall have power and authority to alter or change such judgments, or suspend the same, as the facts and circumstances and justice may require, upon notice to such parent as above provided for, or with his or her consent.” As amended Acts 1953, 53rd Leg. p. 439, eh. 127 § L


author: McDonald, judge. DICE, Commissioner.

text:
    Tremlin C. CAMPBELL, Appellant, v. The STATE of Texas, Appellee.
    No. 34338.
    Court of Criminal Appeals of Texas.
    May 16, 1962.
    Rehearing Denied June 13, 1962.
    Brown & Brown, by David H. Brown,. Sherman, for appellant.
    Leon B. Douglas, State’s Atty., Austin,, for the State.
   McDonald, judge.

Notice of appeal has been perfected in-this cause. Therefore, our prior opinion, is withdrawn and the appeal is reinstated..

The offense is incest; the punishment, five years.

Elizabeth Campbell Turner, the prosecuting witness, testified that she was eighteen years of age and the daughter of appellant; that she is now married but that on April 12, 1961 she was unmarried and lived with her father, mother, four sisters, and two brothers in Sherman, Texas; that on such date her mother was confined in the hospital; that on the night in question, while her brothers and sisters were asleep in the house and she was in the kitchen, appellant came in and “took me by the arm and we went to his bedroom. * * * there we went to bed”; that appellant placed his private parts in her private parts. The prosecutrix stated that she never consented to this act of intercourse and that she feared appellant.

Johnny Burleson, a detective with the Sherman police department, testified that on May 6, 1961, he executed a warrant of arrest against appellant and took him to the city police station, where he questioned appellant about one hour; that appellant was then removed to the county jail; that on May 8, 1961, around 1:00 o’clock, p. m., he again questioned appellant for some thirty minutes, at which time appellant made and signed a statement, after statutory warning, admitting the alleged act.

Appellant did not testify in his own behalf.

There are no formal bills of exception nor obj ections to the court’s charge appearing in the record.

Several points of error are raised by informal bills of exception.

Appellant first contends that the trial court erred in allowing the prosecutrix to testify after she claimed her privilege against self-incrimination.

An examination of the record reflects that, on first being called as a witness, the prosecutrix refused to testify and claimed her privilege. The trial court, in the absence of the jury, inquired into the matter and upon prosecutrix’s continued refusal to testify, held her in contempt. After spending the night in jail, she again took the witness stand and purged herself of the contempt.

The privilege of refusing to answer a question because of self-incrimination belongs only to the witness and appellant has no right to obj ect thereto. 44 Tex.Jur., Sec. 24, pp. 966, 967; and Washburn v. State, Tex.Cr.App., 318 S.W.2d 627. The contention is overruled.

It is next contended that error was committed in the admission of appellant’s written statement over his objection that such was not taken in conformity with the law.

From the record it appears that on cross-examination the witness Burleson testified that he warned appellant that his statement “could be used either for or against him,” but on redirect examination he stated that he misunderstood the question and that he gave the warning which appears on the statement. The statement, introduced as State’s Exhibit #2, contains the following language: “ * * * that any statement made by me may be used in evidence against me * *

In the absence of the jury, the court heard the testimony on the admissibility of the statement, admitted it in evidence, and in his charge instructed the jury that before they could consider the same as any evidence they must believe that appellant was warned by the person taking the same that he did not have to make any statement at all and that any statement made by him could be used in evidence against him on the trial for the offense concerning which the statement was made.

No error was committed by the court in admitting the statement in evidence and submitting to the jury the issue of whether the statutory warning had been given. Sandoval v. State, 162 Tex.Cr.R. 468, 285 S.W.2d 222.

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

ON APPELLANT’S MOTION FOR REHEARING

DICE, Commissioner.

Appellant re-urges his contention that the court erred in admitting his written confession in evidence. He insists that because he was not given the statutory warning until after he had orally confessed to the crime his subsequent written confession should not have been admitted.

While the record shows that appellant was not warned by the officer prior to the time he orally confessed to the crime, the evidence shows that he was duly warned prior to his signing the confession which was admitted in evidence.

In De Beauford v. State, 95 Tex.Cr.R. 398, 254 S.W. 572, a similar contention as here urged by appellant was overruled by the court where the evidence showed that the accused was duly warned before he signed the confession introduced in evidence.

Judge Lattimore, speaking for the court in disposing of the contention said: “The statement alleged to be the confession of appellant does not become his until his signature is affixed thereto.”

We again overrule appellant’s contention.

We also find no error in the court’s action in admitting the confession in evidence over appellant’s objection that it related to an offense different from that charged in the indictment. The indictment charged that the offense was committed on or about the 12th day of April, 1961. The prosecuting witness testified that appellant had intercourse with her on the night of April 12, 1961, at their home.

In his confession, appellant stated:

“On or about the 12th or 13th day of April, 1961 — I had an intercourse with my daughter * * * at our home * * * this was the first I had done a thing like this and the last * * * I was sitting in the living room watching television and * * * my daughter came in the room with just a slip and her underwear on — she sat down in my lap — then we had an intercourse * * ⅜ )j

While appellant stated in his confession that the act of intercourse took place in the living room, where he was watching television, and the prosecuting witness testified the act occurred on a bed in his bedroom, both stated that there was only one act on the night in question, which the record shows was April 12, 1961, the date alleged in the indictment. Under the record, the confession was not subject to the objection made by appellant.

We observe that the court in his charge, to which no objection was made, instructed the jury that if they believed from the evidence or had a reasonable doubt thereof that the prosecuting witness was an accomplice and that the act of intercourse alluded to in appellant’s confession was a separate and distinct act from that testified to by her, then to acquit him. Such instruction amply protected appellant against the jury convicting upon the uncorroborated testimony of an accomplice.

We overrule appellant’s contention that he was denied due process of law because he was not taken before a magistrate for an examining trial prior to return of the indictment against him. Appellant made no request for an examining trial. Recently, in Singleton v. State, Tex.Cr.App., 346 S.W.2d 328, it was held that an accused might not be heard to complain because the grand jury indicted him prior to the holding of an examining trial.

Remaining convinced that a proper disposition was made of the case on original submission, the motion for rehearing is overruled.

Opinion approved by the Court.


author: McDonald, judge.

text:
    Alford Richard MAY, Archie Dean May, Dyan Ronnie Houston, and Jimmy Wayne Rogers, Appellants, v. The STATE of Texas, Appellee.
    No. 34661.
    Court of Criminal Appeals of Texas.
    May 30, 1962.
    Rehearing Denied June 30, 1962.
    Clay Coggins, Roby, J. W. Reid, Abilene, for appellant.
    Weldon Kirk, Dist. Atty., Sweetwater, Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

Appellants were jointly indicted, tried, and convicted for the offense of rape. Punishment was assessed against each appellant at confinement in the penitentiary for fifteen years.

Due to our disposition of the cause, the facts need not be set forth.

The indictment alleged rape by the use of force, threats, and fraud. The court’s charge limited the jury’s consideration to the allegations of force and threats.

Appellants contend there is no proof of threats of death or great bodily harm as that term is defined by Art. 1185, Vernon’s Ann.P.C., to support the submission to the jury of the issue of rape by threats, and therefore that the court below erred in submitting same over their objection.

The rule in this state, as set forth in the early case of Serio v. State, 22 Tex.App. 633, 3 S.W. 784, is that in the absence of proof of threats it is error for the trial court to authorize the jury to convict on the theory that the rape was committed by threats. Also, see: Fite v. State, 139 Tex.Cr.R. 592, 140 S.W.2d 848. In addition, the threats must be of such nature as would operate upon the mind of the prosecutrix to such an extent as to cause her to yield to the attacker. Diggles v. State, 99 Tex.Cr.R. 288, 269 S.W. 88.

A careful and thorough examination of the record fails to reveal any evidence that would constitute proof of threats. In facts, on cross-examination the prosecutrix testified several times that she was not threatened nor were any threats made upon her life by the appellants.

In supporting its contention that there is proof of threats, the state relies heavily upon Longoria v. State, 159 Tex.Cr.R. 529, 265 S.W.2d 826, wherein the evidence was held sufficient to support a conviction for rape by threats.

We feel that Longoria is distinguishable from the case at bar in that the evidence showed that one of the appellants stated: “This lady was scared and asked me if we were going to beat her up. I hold her that we were not if she did what we told her to do.” This clearly reflected a threat.

In order to constitute a threat under Arts. 1183, 1185, V.A.P.C., there must be some action on the part of the defendant that might reasonably create a just fear of death or great bodily harm in the mind of the prosecutrix. The record, here, fails to make such showing.

The trial court erred in submitting to the jury the issue of rape by threats. Therefore, the judgment is reversed and the cause is remanded.


author: BELCHER, Commissioner.

text:
    H. STECHER, Appellant, v. The STATE of Texas, Appellee.
    No. 34599.
    Court of Criminal Appeals of Texas.
    May 16, 1962.
    Rehearing Denied June 27, 1962.
    No attorney for appellant of record on appeal.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Carl E. F. Dally, Assts. Dist.. Atty., Houston, and Leon B. Douglas,. State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The appellant was convicted of unlawfully parking a motor vehicle other than a commercial vehicle; the punishment, a fine of $150.

The conviction was under the following ordinances of the City of Houston:

“Section 41-168. STANDING IN TRUCK LOADING ZONES. It shall be unlawful for any person to park or stand any vehicle other than a commercial vehicle in any truck loading zone between the hours of seven o’clock a. m. and six o’clock p. m.”
Section 41-2A, Section 9, reads: “TRUCKS OR COMMERCIAL VEHICLES. Every motor vehicle designed, used or maintained primarily for the transportation of property.”

Section 1-8 prescribes a penalty for the violation of said ordinance by a fine not to exceed $200.

The evidence shows that the appellant parked his 1949 Dodge automobile bearing regular Texas passenger license plates in a truck loading zone between 7 a. m. and 6 p. m., in the City of Houston. It was appellant’s private automobile which he used as a passenger car and also for the making of deliveries; that plywood racks and shelves had been placed therein for the purpose of transporting merchandise; that the racks and shelves were removable, but they were in place and being used for the purpose of delivering merchandise at the time and place of the offense alleged.

It is evident that the Dodge automobile was not a truck or commercial vehicle as defined under the ordinance, but was such a motor vehicle as was prohibited from parking at said time in a loading zone in the City of Houston.

The evidence is sufficient to support the conviction.

The judgment is affirmed.

Opinion approved by the Court.