author: HILL, Judge.

text:
    Rodney RATLIFF et al., Appellants, v. John Jesse REDMON, Appellee.
    Court of Appeals of Kentucky.
    Nov. 19, 1965.

      James M. Graves, William P. Swain, Boehl, Stopher, Graves & Deindoerfer, Louisville, for appellants.
    Robert Matthews, Atty. Gen., Frankfort, for appellee.
   HILL, Judge.

The Workmen’s Compensation Board found appellee, John Jesse Redmon, was an independent contractor and disallowed his claim for compensation for the loss of sight in his right eye resulting from being struck by flying metal. The Circuit Court reversed the Board on the theory appellee was an employee and not an independent contractor. This appeal followed.

The only question presented by appellants concerns the relationship of appellee at the time of his injury. Was he an independent contractor or an employee?

This Court has not had the benefit of a brief on behalf of appellee; however, one copy of the brief filed with the Workmen’s Compensation Board appears in the record. Rule 1.260 authorizes a reversal for failure to file brief, but we have decided to examine the merits of the case.

Appellants, Rodney Ratliff and William Ratliff, brothers and partners doing business as Frankfort Scrap Metal & Auto Parts, employed appellee, John Jesse Red-mon, in 1960 primarily to separate copper and brass from other metals. Occasionally, appellee contends, he did other work, such as baling paper, hauling scrap iron, and some personal work for Rodney Ratliff constructing a fence around the home of the latter. When separating metals, he was paid five cents per pound. For the other work, which was not extensive, he was paid $1.25 per hour. Redmon was fifty-two years old when he gave testimony in April 1964. He could neither read nor write. Rodney Ratliff assumed the responsibility in the operation of the partnership and kept the books and records. He is a “college graduate in accounting” and has done “graduate work at the University in accounting and economics.”

At the time of the injury to his right eye on October 24, 1963, appellee had vision of only 20/40 in the left eye.

Appellee testified “Rodney” showed and told him what to do; that he used “their” (appellants’) tools; that “an old chopping ax and a hatchet” were all that was necessary; that he used “any old kind of tool that you could get by with.” He testified that he worked about two or three days out of each week, when metal was available, and did not work for anyone else during the year previous to his injury. He admitted he was paid five cents per pound for copper and brass cleaned or separated. He also testified Rodney Ratliff told him he was covered by compensation.

Appellant, Rodney Ratliff, testified he employed Redmon primarily to clean copper and brass, although he admitted that on rare occasions Redmon did some other work for which he was paid separately. Rodney testified he paid Redmon five cents per pound for cleaning; that Redmon came and went when he pleased, used his own tools, although on cross-examination he admitted some of the tools used belonged to the firm; that he paid Redmon cash part of the time and by check at other times; that when he paid by check the checks were payable to “Redmon Metal Cleaning Service.” Red-mon stated that the first he knew of such a firm name was once when he went to Perkins’ store to get a check cashed.

Ratliff also testified he did not advise Redmon that he, Redmon, was covered by compensation. He also stated he did not carry Redmon on the regular payroll; and that he had offered Redmon regular employment, which was refused; that Redmon was “strictly on his own;” that no one told Redmon “how hard, how slow, or anything about his work;” and that Redmon worked “whenever he took a notion.”

Thus, it is apparent there is sharp conflict in the evidence on matters of detail concerning the nature of the relationship between appellants and appellee. However, details become relatively unimportant when the over-all picture is presented.

Before attempting to apply the rules of law applicable to the facts of the present case, we should keep in mind the well recognized rule of law in this jurisdiction, that in determining the relationship of employer and employee under the Workmen’s Compensation Act a broader and more liberal construction is used favoring employee. See Brewer v. Millich, Ky., 276 S.W.2d 12, 15 (1955), wherein this Court said:

“In answering this question, the approach to be used is that of determining the relation of employer-employee under the Workmen’s Compensation Act rather than of master and servant or principal and agent in tort actions. The workmen’s compensation approach is broader and uses a more liberal construction favoring the employee. This is in harmony with the purpose of the Act in affording protection to the employee because of his inability to withstand the burdens of injury occasioned by his employment and the resultant loss of work.”

The basis for this rule of law is found in KRS 342.004 wherein it is provided: “This chapter shall be liberally construed on questions of law, as distinguished from evidence, and the rule of law requiring strict construction of statutes in derogation of the common law shall not apply to this chapter.”

The General Assembly of Kentucky further demonstrated its humane and compassionate consideration for the working class when it enacted KRS 342.050 prohibiting any contract, written or implied, or device calculated to relieve any employer of the obligation created by the Workmen’s Compensation Act. We quote it in full:

“Except as provided in this chapter, no contract or agreement, written or implied, no rule, regulation or other device, shall in any manner operate to relieve any employer in whole or in part of any obligation created by this chapter.”

That the Act intended all employees to be covered is specifically provided in KRS 342.005 wherein it recites: “This chapter shall apply to all employers having three or more employes regularly engaged in the same occupation or business, and to their employes, * * * (Emphasis added.)

This Court has consistently recognized and followed the general philosophy and purpose of the Workmen’s Compensation Act as outlined by the Legislature. We quote further from Brewer v. Millich, supra, page 16:

“In Robinson v. Lytle, 276 Ky. 397, 124 S.W.2d 78, 80, the Court said: ‘ * * * we must look to the philosophy of the Compensation Act in arriving at its proper construction. It was the intention of that Act to place the burden for injuries received upon the industries in which they were suffered rather than upon a society as a whole.’ ”

The problems, resulting from work-connected injuries and deaths have burdened societies from the beginning of civilization. Many of the Roman road builders and early seafarers must have paid dearly for the tasks they performed. Their societies were burdened socially and financially with injured, useless citizens, dependent families, and lost production. With the advent of industrial development, our modern Workmen’s Compensation Act has remedied the situation to a great extent so that now we may define workmen’s compensation to be: a mechanism for providing cash wage benefits and medical care to victims of work connected injuries, and for placing the cost of these ultimately on the consumer, through the medium of insurance, whose premiums are passed on in the cost of the product.

Kentucky is not alone in legislative and judicial expression broadening the concepts of employee relationship and limiting the scope of “independent contractor” relationship, as will be seen in Larson’s Workmen’s Compensation Law, volume 1, page 623, from which we quote:

“The term ‘employee’ is defined by most statutes to include every person in the service of another under any contract of hire, express or implied. Judicial application of this definition to workmen’s compensation status problems generally follows the tests worked out by common law distinguishing servants from independent contractors for vicarious liability questions. However, a recognition of the difference between compensation law and vicarious liability in the purpose and function of the employment concept has been reflected both in statutory extensions of the term ‘employee’ beyond the common-law concept and in a gradual broadening of the interpretation of the term to bring within compensation coverage borderline classes for whom compensation protection is appropriate and practical.”

Going now to guidelines generally used to distinguish “employee” situations from “independent contractor” relationships, we quote further from Larson’s Workmen’s Compensation Law, page 624:

“In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered :
(a) the extent of control which, by the agreement, the master may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or business;
(c) The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the employer; and
(i) whether or not the parties believe they are creating the relationship of master and servant.”

We shall discuss the foregoing "matters of fact” or factors in the order listed as they apply to the relationship of the parties in the present case:

(a) Extent of control. Laying aside conclusions of the parties, we find appellee was at the time of his injury performing work that required little, if any, control or supervision. He was shown a pile of scrap metal and told to separate the copper and brass from all other metals and lug it up to the scales. The only skill required was a knowledge of the difference between these metals, which is usually common knowledge. Of course, appellee could only perform this work when there was metal around to separate, which amounts to automatic control over the period of time worked by appellee. In this connection we quote further from Larson, page 631: “Should he be deprived of compensation because of the vicarious-liability requirement of control of the details of the work? If, then, control of the details of the work should not be the most relevant factor for compensation purposes, which of the listed factors should be ? The answer, it is submitted, should be this: the nature of the claimanfs work in relation to the regular business of the employer.” (Emphasis added.) We conclude the factor “extent of control” must be resolved in favor of “employee” relationship.

(b) The factor of whether or not the appellee was engaged in a distinct occupation or business must be hastily resolved in favor of “employee” relationship. This short horse is easily curried. There is nothing different or distinct about classifying junk metal. It is the very essence of a profitable junk business. Some metals bring premium prices; others not so much. In fact, separation and classification of metals covers the whole business. That is all there is to it except for weighing the scrap when it arrives- to be unloaded, which is usually done by the seller, and then loading and hauling it to market. So, factor (b) must likewise be considered favorable to appellee’s contention.

(c) The custom in the locality of the particular occupation, with reference to whether the work is usually done under direction of the employer, is a factor denoting the relationship of employee. If the work is usually done by a specialist without supervision, independent contract relationship is indicated.

There is no evidence of custom in this case; therefore, it is left to the imagination to determine the weight to be given to this factor. Factors (a) and (b) are so nearly similar to (c) we conclude there is nothing pertaining to separation of junk requiring the services of a specialist without supervision. Therefore, the relationship of “employee” is indicated by factor (c).

(d) If special skill is required in the work to be done, the employer is likely to let the work out to an independent contractor. This factor was discussed in connection with factor (a) and must be resolved in favor of appellee.

(e) Furnishing tools and a place to work is some evidence favoring employer-employee relationship. All parties concede appellants furnished the place to work. There may be a slight controversy as to who furnished the tools. Appellee testified appellants furnished the tools. Appellant Rodney Ratliff testified on direct examination that Rodman furnished his own tools, but on cross-examination he stated: “He has possibly borrowed some of my tools, but I try to discourage it all I can because they don’t take care of any of them, and I don’t furnish tools. The fact of the matter is, not many tools are required.” This question and answer exchange occurred on cross-examination of Rodney Ratliff: “Would a knife and screw driver be sufficient to clean metal that you have to have cleaned on your yard?” (Answer) “They would have to have hammers possibly. I am positive they would have a hammer of some sort, and they use other pieces of iron to do the knocking, the tools they use are more or less tools they have made themselves mainly though. As far as cutting, cutting wiring, etc., they do that out of saws, the temper runs better.”

We may assume, then, that at least some of the tools and instrumentalities were furnished by the employer. In fact, Red-mon used any old tools available along with his two hands and the one good right eye he had before his injury. The facts justify weighing factor (e) in favor of appellee.

(f) If the employment has continued for a considerable length of time, and does not have a termination date fixed, the relationship of employer and employee is likely, as distinguished from that of independent contractor. In the case at bar, appellee was employed in 1960, and continued to work for appellants until October 24, 1963. Certainly we think the nature and length of appellee’s employment is a strong factor tending to support the proposition that Redmon was an “employee.”

(g) If the method of payment is by the job or unit of work, the relationship of independent contractor is suggested. If payment is made by the hour or for a period, we may look for an employee. Appellee was paid five cents a pound, sometimes in cash and other times by check payable to “Redmon Metal Cleaning Service.” Appellee testified he did not know why the checks were made out in such a fashion. He could neither read nor write, but he no doubt suddenly felt a spectacular elevation in the world of business when his grocer advised him that the check was made payable to such an important sounding firm name. To an auditor or representative of the Internal Revenue Department such evidence of payment would clearly appear to indicate an independent contractor. But let us look further. There are numerous reasons that could have existed for paying appellee for his work by the pound. By so doing appellants could have sought to avoid payment of social security and workmen’s compensation premiums on appellees wages; also to be relieved of bookkeeping, from reporting withholding taxes, and possibly city occupational taxes, to say nothing of being able to get value received for their money. A workman can “deadbeat” little time in when he works by the unit.

Of the nine factors under consideration, and we have two more to go, only the “method of payment” factor can be said to favor the relationship of “independent contractor.” After careful consideration of all the circumstances, we consider the “method of payment” used in the present case a mere “device” or subterfuge within the meaning of KRS 342.050 to circumvent the provisions of the Workmen’s Compensation Act.

(h) The “employee” relationship may be expected' if the work is a part of the regular business of the employer. As said in connection with our discussion of factor (b), the work Redmon was doing at the time of his injury was an integral and important part of the junk business. For reasons heretofore pointed out, we conclude factor (h) must be resolved in support of appellee’s contentions that he was an “employee.”

(i) What the parties believe with respect to the relationship created is important in determining that relationship. First, we ask the question: What did appellants believe with respect to the relationship thus created ? It is fair to assume appellants were striving and hoping to attain the relationship of “independent contractor.” But, did they believe it so ? Possibly so, for they may have carefully planned the procedure followed. The important consideration is not what one of the parties believed, but what both parties believed from the circumstances. Appellee testified he was told by appellants that he was covered by workmen’s compensation, although this is denied by appellant Rodney Ratliff. In view of the low income of appellee and his experience with a previous injury and his great responsibility at home for nine children, we think it is fair to say that a reasonably prudent man would have, under the circumstances, believed he was an “employee” of appellants, and thereby covered by workmen’s compensation. He had every reason to expect to be covered. Actually the cost of coverage under workmen’s compensation would have been small since his earnings were low.

When viewed in the light of the educational standing of the two parties, their motives, and purposes in the creation of their relationship, we think factor (i) must also be construed most favorable to the relationship of “employee.”

It is significant to point out the relative importance to be given the various “factors” discussed above as it is so well and succinctly stated by Larson, supra, page 627:

“On only one point as to the relative weight of the various tests is there an accepted rule of law: it is constantly said that the right to control the details of the work is the primary test.” (Emphasis added.)

We are mindful of this Court’s limited scope of review of awards of the Workmen’s Compensation Board under Locust Coal Company v. Bennett, Ky., 325 S.W.2d 322 (1959), and other authorities. However, when the curtain of conclusions and abstract contentions is removed, there is no substantial conflict in the evidence in this case. This being so, the question is one of law for the courts under Brewer v. Millich, supra. We think appellants’ position is clearly a “device” intended to deprive appellee of protective benefits, to which he is entitled. Appellee had no investment in the metal separation business. He was not listed in the yellow pages of the telephone directory or otherwise advertised as a specialist or independent contractor. This record shows the first time Redmon was ever so designated was when appellants conceived the idea by making some of the checks payable to Redmon Metal Cleaners.

We find appellee was an employee within the meaning of the Workmen’s Compensation Act. The judgment is affirmed.


source: Caselaw Access Project

author: PALMORE, Judge.

license: Public Domain

text:
    CITY OF MANCHESTER, Kentucky, et al., Appellants, v. Doshla ASHER et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 19, 1965.

      T. T. Burchell, Manchester, for appellants.

      John M. Lyttle, Manchester, for appel-lees.
   PALMORE, Judge.

This is an unusual case which seems to have been practiced mainly off the record. Fortunately or unfortunately, as it may be, we have the uneasy task of deciding it only on the record.

The appellees are 22 taxpayers of Manchester, a 5th class city and county seat of Clay County. In some manner each of them attempted to appeal to the Clay Quarterly Court from the city board of equalization’s action on their 1961 city tax bills. The right of and procedure for taking such appeals is provided by KRS 92.530(2). While these attempted appeals were pending in the quarterly court T. T. Burchell, as “Attorney and Taxpayer for the Appel-lee, Manchester, Kentucky,” filed motions to dismiss all of them. The 22 proceedings were consolidated and in due course the quarterly court entered a judgment that “the assessment raises by the Special City Assessor and the Board of Equalizers be declared invalid and of no effect against each of the appellants, and that their city taxes be in the same amount as they were before said attempted raises. To which ruling of the Court the City of Manchester, Kentucky, objects and excepts and prays an appeal to the Clay Circuit Court, which is granted.”

The first 95 pages of the transcript before us consists of a copy of the record in the Clay Quarterly Court, bearing the following endorsement by the Clerk of the Clay Circuit Court:

“Appealed to Clay Circuit Court from Clay Quarterly Court * * * and same is filed and noted of record, this the 8th day of Jan., 1962.”

Thus it is apparent that the appeal to circuit court was accomplished by a direct filing of the quarterly court record rather than a certified copy of the judgment as required by CR 72.01. Nevertheless, this procedural irregularity was not questioned by the appellees and the circuit court proceeded to entertain the appeal. In the circuit court Mr. Burchell, still acting as “attorney and taxpayer” for the city, filed several motions, including what was in effect a renewal of his effort in quarterly court to obtain a dismissal of the attempted appeals by the 22 taxpayers from the actions of the city board of equalization. Some testimony was taken, but for purposes of this discussion it may be assumed that none of the parties produced any evidence on the merits, and as the tilting and sparring appeared to be leading in the general direction of nowhere the circuit court finally entered the judgment from which the instant appeal is taken by the City of Manchester through Mr. Burchell as a taxpayer.

The judgment is as follows:

“The City Clerk of the town of Manchester, Kentucky is hereby authorized and directed to add a 30% total above the 1959 taxes for years 1960 and 1961 for the above captioned taxpayers and this cause is stricken from the courts docket.”

The most novel question in the case is one that the appellees have not raised, but which we feel we must consider in order to determine whether there is a valid appeal before us. Is the City of Manchester, or Mr. Burchell in its behalf, actually a party to the lawsuit? If not, he or it is an interloper and cannot or at least will not be heard.

After each of the 22 taxpayers had lodged with the quarterly court the papers that were thereafter treated as appeals from the actions of the city board of equalization, Mr. Burchell filed in that court motions to dismiss in which he alleged that he was a citizen and taxpayer of the City of Manchester and in such capacity desired to resist the appeals in the city’s behalf; that the city Rad no attorney; and that a demand on the appropriate officials of the city to defend the actions would be futile because the mayor had already indicated his refusal to do so, and a meeting of the city council could not be convened in time to avoid judgments by default. He did not proceed by intervention (CR 24) or seek to have himself made a party, either individually or as a class representative of the taxpayers of the city (CR 23), but appeared for the city eo nomine.

In a related case, City of Manchester v. Keith, Ky., 396 S.W.2d 44 (decided November 12, 1965), we affirmed a judgment against the city because Mr. Burchell, as its sole representative in the proceeding, had no standing to maintain the action either as an attorney or as a citizen, resident or taxpayer. In that case, however, Mr. Burchell did not make a showing that a demand had been made on the proper officials to prosecute the action in the city’s interest, or that such a demand would have been futile.

It was remarked in Norrell v. Judd, Ky., 387 S.W.2d 7, 9 (1965), that this court “has been most liberal in its recognition of the right to maintain a taxpayer’s suit.” When the suit is derivative, or secondary, the primary right of action being in the corporation, the individual seeking to maintain it in behalf of the city must allege a demand on the public officers or the futility of such a demand. Wagner v. Wallingford, 257 Ky. 477, 78 S.W.2d 326 (1935); Commonwealth, By and Through Barton v. Mauney, 258 Ky. 429, 80 S.W.2d 568 (1935). A suit against the city, as distinguished from the institution of an action in its behalf, can be defended in the same manner. Cf. McQuillin, Municipal Corporations, §§ 52.10, 52.17 (Vol. 18, pp. 19-20, 33-34). Though it is customary and better practice for the taxpayer to appear in his own name, in which event, if he enters litigation already pending he must intervene under CR 24 and be made a party, there is no compelling reason why he may not accomplish the same end by a direct entry of appearance in the name of the city if he makes a proper showing of his relationship and right to proceed in its interest and if no objection to the irregularity is interposed. It is just a matter of formality. The service of papers must be directed to his counsel of record anyway. CR 5.02.

Though it would seem that the members of the board of equalization were the parties against whom the appeal of the taxpayers should have been directed, the city had the right to intervene. Cf. Cook v. Citizens State Bank of Wickliffe, Ky., 304 S.W.2d 931, 933 (1957); City of Louisville v. Christian Business Women’s Club, Ky., 306 S.W.2d 274, 277 (1957).

We are of the opinion that the contents of Mr. Burchell’s motions established his right to intervene and defend the city’s interests in this litigation and that the city became a party by virtue of his unchallenged and uncontested appearance in its name and behalf. Hence this appeal can be entertained.

The position of the 22 taxpayers who are the appellees is that the city had the burden of proof in the circuit court and, no evidence of substance having been introduced, judgment against the city was correct. To the contrary, see Combs v. Combs, Ky., 380 S.W.2d 227, 229 (1964). But we need not reach the point, because there really was nothing in issue requiring proof. The city’s contention all along, in the quarterly and circuit courts and in this court, was and is that the taxpayers did not have proper appeals pending in the quarterly court. One look at the record is enough to settle that question in the city’s favor. Indeed it seems to us that there were no appeals whatever, because KRS 92.530(2) provides that an appeal from the action of the city board of equalization must be taken “by filing with the judge of the quarterly court a copy of the action of the board, certified by the clerk of the board,” etc., which was not done. So far as the record shows, the papers filed with the quarterly court were nothing more than copies of the original assessments transcribed from the assessment book and certified by the city clerk. They do not show or purport to re-fleet the actions of the hoard of equalization, nor were they accompanied by anything in the nature of a statement of appeal which might have served as an appropriate vehicle for explaining the absence of a certified record from the clerk of the board of equalization. As we have already mentioned at the beginning of this opinion, it is obvious that the main stream of this litigation flows somewhere outside the course of the record.

It will be recalled that although the city did not comply strictly with CR 72.01 in appealing to the circuit court, it did file the original quarterly court record, including the judgment from which the appeal was taken. This accomplished the basic purpose of the requirement that a certified copy of the judgment be filed. Cf. Commonwealth of Ky., Dept. of Highways v. Wilkins, Ky., 320 S.W.2d 125, 126 (1959). Hence the irregularity was not fatal. But it would seem elementary that no appeal could be perfected without either the original or a copy of the judgment or order from which it is taken, and we are satisfied that the provisions of KRS 92.530(2) in this respect are mandatory. Cf. Cain v. Magoffin County, 198 Ky. 598, 249 S.W. 766 (1923).

So, as we view it, each of the attempted appeals from the board was a nullity and subject to dismissal on proper motion, if not by the quarterly court sua sponte. The city’s motions for dismissal of the taxpayers’ appeals amounted in substance to motions for judgment on the pleadings. Both the quarterly court and the circuit court erred in entering judgments which had the effect of overruling them. The circuit court judgment was erroneous also to the extent that it covered 1960 taxes and directed a tax increase of 30% for 1960 and 1961, there being nothing in the record to support it in either aspect. The sole justiciable issue before the court was whether the 22 taxpayers were entitled, on the basis of what they had filed with the quarterly court, to a review of the actions of the board of equalization.

As a final word of explanation, we note from the judgment of the quarterly court that its reason for sustaining the appeals of the taxpayers was that the tax assessor and the members of the board of equalization had not taken the official oath of office before entering upon their duties. Since the appeals were ineffective, any question as to the validity of their actions remains unlitigated and undecided.

The cause is reversed with directions that a judgment be entered dismissing the attempted appeals from the actions of the board of equalization of the City of Manchester.


author: MOREMEN, Chief Justice.

text:
    William R. KINMON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 19, 1965.

      William R. Kinmon, pro se.
    Robert Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., for appellee.
   MOREMEN, Chief Justice.

The appellant seeks reversal of the judgment denying without a hearing his RCr 11.42 motion to vacate a prior conviction for armed robbery. This is his third motion under RCr 11.42 to vacate this conviction. The first was overruled because the motion did not state sufficient grounds to warrant relief, and that ruling was affirmed by this Court in Kinmon v. Commonwealth, Ky., 383 S.W.2d 338. The second motion was overruled also, the court finding among other things that all evidence introduced as exhibits at the trial had been obtained under lawful search and seizure. No appeal was taken.

In the present motion the appellant alleges: 1st) that counsel for appellant was asked by the court during the trial within the presence and hearing of the jury whether he had any objection to the separation of the jury, 2nd) that evidence obtained as a result of an illegal search and seizure was used against him, and 3rd) that his automobile was unlawfully seized.

Appellant’s first contention, that the judgment should be vacated because the court asked him in the presence of the jury whether he objected to a separation of the jury, was answered in Warner v. Commonwealth, Ky., 385 S.W.2d 62, adversely. In the Warner case we said that even if this error occurred it may not be raised in a proceeding under RCr 11.42. See also King v. Commonwealth, Ky., 387 S.W.2d 582.

The other errors alleged by the appellant have been adjudged adversely to him in his earlier motions to vacate this conviction under RCr 11.42. RCr 11.42(3) provides that “[fjinal disposition of the motion shall conclude all issues that could reasonably have been presented in the same proceeding.” The appellant in this case has presented no issue which could not have been reasonably presented in his first motion. Therefore, this motion is merely an effort to trifle with the courts which clearly is not the purpose of RCr 11.42. See Burton v. Tartar, Ky., 385 S.W.2d 168.

Judgment affirmed.


author: CLAY, Commissioner.

text:
    Thelma GERING, Appellant, v. BROWN HOTEL CORPORATION, Appellee.
    Court of Appeals of Kentucky.
    Nov. 19, 1965.

      Louis Cohen, Cohen & Cohen, Louisville, for appellant.
    Harry B. Miller, Miller, Griffin & Marks, Lexington, amicus curiae.
    Charles F. Wood, Greenebaum, Barnett, Wood & Doll, Louisville, for appellee.
   CLAY, Commissioner.

This action was brought by plaintiff appellant under KRS 337.360 against her employer, defendant appellee, to recover the difference between wages actually paid and those prescribed by a minimum wage order of the Commissioner of Labor during the period September 4, 1962, to February 13, 1964. Plaintiff’s claim was dismissed on motion for summary judgment. The sole question is whether the minimum wage order involved became effective August 1, 1962, or February 14, 1964.

This order was issued June 6, 1962, and recited that it should become effective August 1, 1962. Shortly thereafter certain interested employers filed a “Petition for Review and Appeal” from this order, as authorized by KRS 337.310. The order was affirmed by the Franklin Circuit Court and that judgment was affirmed on appeal by this Court. Hotel & Rest. Ass’n v. Commissioner, Ky., 374 S.W.2d 501.

In that lawsuit an injunction was issued by the circuit court which had the effect of staying the enforcement of the wage order pending the final determination of its validity. It is defendant’s basic contention that this injunction postponed the effective date of the wage order from August 1, 1962, until February 14, 1964, when the decision of this Court became final. Such argument is demonstrably untenable.

Before examining pertinent parts of the record in the former lawsuit, certain general observations may be made. The minimum wage order was presumptively valid, and its validity was upheld by the circuit court and by this Court. At no stage of the proceedings did any court modify such order in any respect. The effective date recited in the order, August 1, 1962, was as much a part of it as any other provision contained therein. It is difficult to under-' stand how those who lost the original suit (and others relying on it) could claim that by the mere prosecution of unsuccessful litigation they gained substantive rights and substantial benefits. Such a result possibly could be realized only under the most extraordinary conditions. We have none here.

In the controlling case the petitioners (and employers generally) did obtain a form of relief, when at their request the enforcement of the wage order was suspended until the rights of the parties could be finally adjudicated. But to say that suspending enforcement of the order effectively killed it for the suspended period is quite another thing. Let us retrace the proceedings in Hotel & Rest. Ass’n v. Commissioner, Ky., 374 S.W.2d SOL

In the original petition for review the petitioners asked for temporary relief as follows:

“(6) For a temporary injunction enjoining the Commissioner of Industrial Relations from taking any action in respect to the minimum wage rates set forth in Exhibit A or in enforcing any provisions of the regulations set forth in Exhibit A, or taking any steps to enforce the order dated June 6, 1962, pending final determination of the issues herein set forth.” (Our emphasis.)

This was a normal and proper request, and relief was granted by the circuit court in the following terms:

“IT IS ORDERED THAT, Owen L. Kerth, Commissioner of the Department of Labor of Kentucky and his successors in office, be, and he is hereby enjoined until the disposition of the appeal of this cause from putting into effect the minimum wage order of June 6, 1962, which wage order he proposes to make effective August 1, 1962, and he, and his successors are further enjoined from fixing and putting into effect the minimum wage rate set forth in said order until such time as this court has entered its final judgtnent on this appeal.” (Our emphasis.)

Defendant seizes upon the words “fixing and putting into effect” as the pillar upon which it erects its whole argument. The contention is that by these words the circuit court thereupon took over the wage-fixing function and completely nullified the Commissioner’s order. There does appear some ambiguity in the use of the word “fixing” in the injunction order. The wage rates had already been fixed and the Commissioner was not threatening to fix any others. The word was meaningless surplusage. At most it was an expression put in the order to make sure the Commissioner would do nothing in the premises pending the appeal. We simply cannot take this word out of context and say that it constituted a decision of the trial court to then and there modify the wage order by changing its effective date, even assuming it had the power to do so (which we will discuss later). Subsequent developments make certain this conclusion.

The injunction order had required the petitioners to post a $100 injunction bond under CR 65.05. The respondents in that suit were not satisfied with such nominal bond because it was obviously insufficient, if the wage order was eventually upheld, to meet the numerous employees’ claims that would probably accrue during the pendency of the legal proceedings. On July 30, 1962, respondents requested this Court to dissolve the injunction or, in the alternative, to require the petitioners to post a more ample bond, or to set up an “escrow account”. This motion recited:

“If said injunction is not dissolved prior to August 1,1962, many thousands of employees will not receive the wages required to be paid by the mandatory minimum wage order issued by Owen L. Kerth, Commissioner of the Department of Labor, on June 6, 1962, to take effect August 1, 1962. These employees will have no adequate remedy at law to collect the wages provided by said wage order in case it is finally concluded that the minimum wage order is valid and enforceable. In any event, if the wage order is upheld, the necessary result would be that there would exist thousands of suits on the part of employees against their employers to be paid the amounts provided by the order.”

During the hearing on this motion, and in subsequent proceedings, no one even faintly suggested that the contingency above recited would not become an actuality in the event the wage order was upheld. The whole controversy in this Court with respect to the temporary injunction involved the question of what pledge should be required of employers protected by it to secure the payment of claims accruing while the wage order was temporarily suspended.

On August 9, 1962, this Court sustained respondents’ motion and modified the temporary injunction to require the setting up of an “employees’ escrow account” or a sufficient bond “to guarantee the payment of the increase in wages of his employees in the event the order of the Commissioner is ultimately held to be a valid one.” (Our emphasis.) Subsequently this Court (on September 12, 1962) set aside that order, but such ruling involved only the matter of security, and of course did not affect the matter of potential liability. Three members of this Court did not concur in the last order, on the ground that the employers who were to benefit by the suspension of the wage order should be required to guarantee the payment of lost wages in the event it was held valid. We point this out to re-emphasize the fact that no one considered the possibility that the suspension of the wage order had changed its effective date or had altered the ultimate legal rights of the parties.

All of the proceedings with respect to the posting of a bond were based upon the assumption that in the event such wage order was adjudged valid, employers benefiting by reason of the temporary injunction would be incurring liability while it was suspended. It is not even contended here and now that when this Court relieved petitioners and others from executing a substantial bond they were thereby relieved of their potential liability.

The entire proceedings in the controlling case followed a proper and familiar pattern. Petitioners were attacking a wage order which apparently would require many employers to pay higher wages than in the past. Believing in their position and seeking to avoid immediate compliance, they sought to maintain the status quo until the matter could be finally determined. At their request the enforcement of the order was temporarily suspended. This was all the petitioners sought and all they were granted.

In the light of the proceedings above discussed, we are not persuaded by defendant’s argument. It seems to be that when the trial court enjoined the Commissioner of Labor from putting the wage order into effect until the entry of a final court order, the court thereupon went into the wage-fixing business and nullified the wage order. It is even stated in defendant’s brief that the Commissioner violated the injunction by failing “to tear down the order until such time as this Court had ruled he could put it back together again”. We have difficulty following this concept.

Defendant states in its brief “If the Court had merely postponed the enforcement of the proposed wage order until the Court of Appeals had ruled on the issue, then the appellant’s position would be sound”. By reading the record of the proceedings in the original case it is impossible to construe the injunction as proposing to accomplish or as accomplishing any other objective. Defendant bases its whole contention upon a distorted construction of a word used in that injunction which is completely incompatible with the purpose of the order, the nature of the proceeding, and the subsequent acts of the parties.

The brief for amicus curiae extends the argument that the Commissioner of Labor would be violating the injunction if any effectiveness could be given to the August 1, 1962, date and further contends the petitioners involved in the original case (and the defendant) acquired some equitable rights during the proceedings. We hold that there was no semblance of a violation of the injunction and are at a loss to discover how the defendant could have acquired any equity in or out of those proceedings.

It is a rather unique theory that the failure to comply with a law or a lawful order over a period of time creates an equitable right in the violator to be absolved of the consequences. At the instance of the affected employers the trial court and this Court relieved them of immediate compliance with the wage order while its validity was being tested. Further, this Court (perhaps too indulgently) relieved those employers of the necessity of posting a substantial bond (as required by CR 65.05(1)) to secure the payment of damages to prospective claimants who would suffer losses by reason of the suspension of the wage order, in the event it was upheld. Since the employers were unsuccessful in their attempt to invalidate the wage order, they must accept it as they found it. As before mentioned, the effective date is as much a part of such order as any other provision in it.

We have heretofore considered only the inevitable conclusion which must be drawn from an examination of orders and proceedings in Hotel & Rest. Ass’n. v. Commissioner, Ky., 374 S.W.2d 501. There is, however, a more fundamental reason why the proceedings in that case cannot be construed as permanently changing the effective date of the wage order. This involves serious constitutional questions. Appellant calls our attention to section 27 of the Kentucky Constitution relating to the separation of powers, but perhaps section 15 is more specifically applicable. It provides:

“No power to suspend laws shall be exercised unless by the General Assembly or its authority.”

This would apply to a valid administrative order, which has the same legal force as a statute. Linkhous v. Darch, Ky., 323 S.W. 2d 850.

The constitutional provision cannot be construed strictly in its literal sense because the judicial branch has power and authority to stay temporarily the enforcement of such order pending judicial review of its validity, which is a form of suspension. See Jaffe, Judicial Control of Administrative Action, Chapter 18, page 687 et seq.; Scripps-Howard Radio v. Comm’n., 316 U.S. 4, 62 S.Ct. 875, 86 L.Ed. 1229. But it is only because this provisional relief does not alter the ultimate effectiveness of the order that it is constitutionally valid. Such relief excuses only immediate compliance, and when it is terminated the respective rights the parties had in the beginning are left unabridged.

Particularly where such an order requires the payment of money, a stay simply delays the day of reckoning. It does not extinguish obligations to comply from the effective date of the order. This is the only justification for the requirement of a bond, or an escrow agreement, or the keeping of special records. See Jaffe, Judicial Control of Administrative Action, chapter 18, page 701 et seq. If a court should purport to change the effective date of a valid law or administrative order other than in the form of provisional relief to parties in a lawsuit, it would certainly be suspending the law in violation of section 15 of the Kentucky Constitution.

From our discussion above, it is clear the trial court neither undertook nor possessed the power to alter the effective date of the wage order in controversy. When-it affirmed such wage order and this Court affirmed that judgment, the order constituted the law beginning August 1, 1962. This, of course, is not giving retroactive effect to the order (as contended by amicus curiae). We refer the reader to any standard dictionary.

We are aware that many employers who postponed compliance with the wage order (and paid less than the minimum wage) in the hope that it would be declared invalid are now faced with the obligation of reimbursing employees for past due wages. This is a business, not a legal matter. There is no ground upon which we could annul the rights of employees acquired under that order. The final adjudication of this Court was that employers were legally bound by it. Though employers in defendant’s position won a temporary battle, the indisputable fact, however unpalatable, is that they lost the war.

The trial court was in error in granting the defendant summary judgment.

The judgment is reversed for proceedings consistent with this opinion.

      . Item (7) in the prayer was substantially the same.


author: DAVIS, Commissioner.

text:
    KENTUCKY STONE COMPANY, Inc., et al., Appellants, v. Shelby David GADDIE et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 19, 1965.

      Bell, Orr & Reynolds, Bowling-Green, for appellants.
    Hugh L. Hollingsworth, William G. Fuqua, Russellville, for appellees.
   DAVIS, Commissioner.

The appellees, Mr. and Mrs. Shelby David Gaddie, obtained judgment aggregating $8,000 to compensate them for alleged damage to their residence as a result of blasting operations conducted for appellant, Kentucky Stone Company, Inc., by Morgan Construction Company, Inc. The jury’s verdict, and the judgment upon it, assessed $4,000 of the total award against Kentucky Stone Company, and $4,000 against the Morgan Company. The latter company has satisfied the judgment against it and is no longer a party to this appeal.

Appellant, Kentucky Stone Company, presents four assignments of error for reversal: (1) Evidence for appellant was “suppressed” because of a threatened criminal prosecution against appellant’s witness; (2) the court erroneously refused to permit a jury view of the dwelling alleged to have been damaged; (3) an erroneous instruction was given, and (4) the trial court erred in refusing an instruction relating to a “loaned servant.”

For nearly twenty years appellant operated an under ground limestone quarry in Logan County. In 1960 it began activities looking toward development of an open pit quarry on its property adjacent to the under ground operation. Incident to these latter pursuits appellant engaged Morgan construction Company (hereinafter Morgan) to remove the overburden so as to ready the site for open pit quarrying. In connection with that activity Morgan used explosives; moreover, after Morgan had finished its portion of the work, appellant did some blasting in the same area. According to the appellees, the effect of these blastings was to severely damage the residence of appellees situated slightly more than 1300 feet from the quarry site. Morgan began its work in early December, 1960. Appellant received numerous complaints that Morgan’s blasts were causing damage to surrounding properties. In an effort to remedy this situation appellant permitted John Henry Pearson, one of its “dynamite men,” to assist Morgan for a period of three weeks beginning February 28, 1961. Pearson remained on appellant’s payroll during this entire period.

Appellees asserted below, and reiterate in brief here, that the damages to their residence were so extensive as to preclude the possibility of repair at reasonable cost. They offered some evidence that it would cost $20,000 to “rebuild” the residence after tearing it down. Other evidence for appel-lees indicated that the reasonable market value of the property had been reduced by some eight to eleven thousand dollars.

On the other hand, appellant presented a witness, Curtis Baker, who testified that the damages were minimal and could readily be repaired at a cost of $1,764.95. It was brought out on cross examination of Baker that he had not had a flashlight when he crawled under appellees’ house to inspect it. Baker had said that he could see well enough without such a light, however.

After Baker had testified, and while the trial was in progress, he was sent back to the residence of appellees to make another inspection, this time with an adequate light. When it became apparent that appellant planned to recall Baker for further testimony, counsel for appellees made strenuous objection. Out of the jury’s presence, appellees’ counsel pointed out that Baker had committed trespass by entering upon the property of appellees and addressing the appellees, said: “Mr. and Mrs. Caddie, you can take a warrant for Mr. Curtis Baker for trespassing. You can do that at recess.” In face of this prospect, appellant’s counsel elected not to present Baker on recall as a witness. It is argued that such harassment of the witness was tantamount to “suppression” or “spoilation” of evidence, and sufficient to require reversal. We do not agree. A short answer to this argument is that appellant makes no showing, by avowal or otherwise, as to what the witness Baker would have said upon recall. Obviously we cannot reverse on the speculation that Baker would have said something so significant as to prejudice appellant by its omission. Moreover, we fail to see that offering Baker as a witness, or refraining from using him, had any effect on whether Baker could be prosecuted for trespass.

We agree, however, that the trial court should have permitted a jury view of the residence in question. Inasmuch as the evidence was sharply conflicting touching the nature and extent of the damage to the house, it seems to us that a jury view should have been permitted. We are mindful of the asserted practical problems of a view, such as the difficulty of having the jurors crawl under the house or upon the roof. But we are not persuaded that these difficulties are insurmountable. If the evidence at another trial reflects no substantial change in the appearance of the house since the cessation of blasting, the trial court will permit a jury view. Cf., Nash v. Searcy, 256 Ky. 234, 75 S.W.2d 1052. KRS 29.301.

We find that there was prejudicial error in Instruction No. 6 given by the trial court, in words and figures as follows:

“If you find for the plaintiffs, you shall award them such a sum in damages as you may believe from the evidence it would reasonably cost to put said building in the same condition it was in before the injuries were done, not exceeding the sum of $20,000.00 if the injuries may be readily repaired, but if the injuries may not be readily repaired, then you should find for the plaintiffs the difference between the fair market value of the building just before the injuries and its value just after the injuries, not exceeding the sum of $11,000.”

The vice of the instruction lies in the fact that it permits a finding of damages up to $20,000 “ * * * If the injuries may be readily repaired * * * ” whereas the only evidence relating to cost of repair placed a maximum of $1,764.95. It is true that the verdict of $8,000 is within the range of testimony for damages (difference in market value before and after the alleged injuries) if the jury found the residence could not be “readily repaired” — but the verdict is silent as to whether or not the jury found the house could be “readily repaired.” The parties recognize that the measure of damages in this type case is the cost of repair, if repair may be readily accomplished — or, if not, then the difference in market value before and after the alleged damage. River Queen Coal Co. v. Mencer, Ky., 379 S.W.2d 461; Business Realty, Inc. v. Noah’s Dove Lodge No. 20 Ky., 375 S.W.2d 389; 7 Ky. Digest, Damages, The rationale of Pierson v. Commonwealth, Dept. of Highways, Ky., 350 S.W.2d 487, followed in Commonwealth Dept. of Highways v. Cardinal Hill Nursery, Ky., 380 S.W.2d 249, is applicable here and impels reversal, since the verdict is demonstrably erroneous on the amount awarded as damages if the house was readily reparable. Whether the jury found the residence to be readily reparable or not is a matter which cannot be discerned from the verdict. We may not indulge the speculation that the jury disregarded the instruction, even though it was erroneous. Hines v. Gibson, Ky., 264 S.W.2d 64. If the evidence is substantially the same upon another trial the court will give separate instructions covering the measure of damages if the jury finds the defects subject to ready repair, and the measure if the jury finds otherwise as to ready repair. Maximum allowances as to each theory shall be stated in the respective instructions, based upon the evidence.

We do not reach the question whether John Henry Pearson was a loaned servant. It is our view that blasting is such an inherently dangerous operation that a landowner (appellant) may not insulate himself from liability flowing from blasting on his premises merely by entrusting the task to an independent contractor. See Louisville & N. R. Co. v. Smith’s Adm’r., 134 Ky. 47, 119 S.W. 241; Pine Mountain R. Co. v. Finley, Ky., 117 S.W. 143; 27 Am.Jur., Independent Contractors, Sec. 39; 33 A.L.R.2d 47, et seq. Cf., Green v. Asher Coal Mining Co., Ky., 377 S.W.2d 68-71.

The judgment is reversed for further proceedings consistent with this opinion.


text:
    Walter SHEPHERD, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 19, 1965.
    Walter Shepherd, pro se.
    Robert Matthews, Atty. Gen., David Murrell, Asst. Atty. Gen., Frankfort, for appellee.
   HILL, Judge.

Appellant was tried without counsel, found guilty by a jury, and sentenced to two years’ imprisonment for the crime of store-house breaking. Subsequently, he filed motion to vacate the judgment pursuant to RCr 11.42. The lower court sustained his motion for a hearing and appointed counsel to represent him. At the conclusion of the hearing, the lower court overruled his motion to vacate the judgment. He appeals.

Appellant contended in the lower court and again in this Court that he was denied the right of counsel. The original order entered March 4, 1965, is as follows:

“The defendant, Walter Shepherd, being in court, was asked by the court if he had counsel to defend him, whereupon the defendant announced that he did not have counsel for his defense. Thereupon the court inquired of the defendant if he desired the court to appoint him counsel, to represent him in the trial of this prosecution, and the defendant declined the appointment of counsel and announced to the court that he did not think counsel was necessary.”

Appellant has taken no steps to file in this Court a transcript of the evidence produced at the hearing on his motion to vacate.

The judgment is therefore affirmed.


author: MORRISON, Judge.

text:
    Juan SUSTAITA, Appellant, v. The STATE of Texas, Appellee.
    No. 38790.
    Court of Criminal Appeals of Texas.
    Dec. 1, 1965.
    Sam Saleh (Court appointed on appeal only), Lamesa, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is murder; the punishment, 50 years.

Three State witnesses testified that they were engaged in a fight at a drive-in theater on the night in question and that deceased was a participant. The three were armed with knives, and deceased was armed with a stick similar to the big end of a billiard cue. Appellant was not a participant, nor had he been seen by any of the witnesses prior to the time he started firing at the group. One shot entered the center of the back of deceased’s neck which caused his death. Appellant then fired twice at another of the participants, but did not hit him.

The Sheriff apprehended appellant some time later, and appellant directed him to a point approximately four miles from town where he recovered a pistol of the same caliber as the bullet which was recovered from deceased’s neck.

On the afternoon of the day following the homicide the Sheriff carried appellant to the Department of Public Safety Building in Midland where a written confession was signed by appellant.

Appellant did not testify, but called his father who testified that appellant had never before been convicted of a felony and answered the question, “Has he had any trouble with his head that you know?”, by answering, “I guess he did because sometimes he is not in his mind, it runs off.”

This case presents an unusual sequence of events on appeal and we will discuss the contentions raised by diligent court appointed counsel in his brief and in argument in the order raised. The statement of facts reflects that the trial was had in the District Court of Dawson County in November of 1960. No notice of appeal was made at the time of sentencing. Pursuant to the judgment of the United States District Court for the Eastern Division of Texas in Cause #4407, styled Juan Sustaita v. Dr. George J. Beto, Director of Department of Corrections, appellant again appeared before the District Court of Dawson County where he was sentenced and notice of appeal was given, and this case is properly before us.

Bill of Exception #1 complains of the failure of the Court to appoint counsel at his 1960 trial. This bill is qualified by the statement that “the Court was informed that defendant had employed an attorney and his attorney appeared and represented him at the trial.” The record is barren of any showing of indigency and the statement of facts reflects that appellant was represented by counsel of wide experience in the criminal law who is well known to this Court. In the absence of a showing of indigency or request for counsel at the time of his trial in 1960, we are aware of no question raised by the bill.

Bill of Exception #2 complains of the absence of his attorney at the time he was sentenced in 1960. Since the judgment of the United States District Court is not before us, we can only assume that this was the basis upon which such order was issued. The bill is qualified to show that appellant’s attorney was notified, but reported that he did not care to be present for the sentencing. Be that as it may, the Court has now sentenced appellant with counsel being present, and the entire case is before us for full review.

Bill of Exception #3 complains of the trial court’s denial of an application for writ of habeas corpus. This too is moot as the case is here on appeal.

Bill of Exception #4 complains that appellant may be denied credit for the time he has served. We have no hesitancy in assuring appellant that such will not be the case. Upon the re-imposition of sentence, the trial court ordered the sentence to begin to run as of December 8, 1960.

Bill of Exception #5 complains of the court’s overruling his motion for continuance filed on November 22, 1960. The record fails to .reflect any affidavit from the missing witnesses named in the motion that they would testify as alleged in the motion. Such is requisite. Ong v. State, 167 Tex.Cr.R. 452, 321 S.W.2d 91, and cases there cited.

Our discussion of Bill of Exception #6 will be limited to the objections interposed at the time. The first objection to the confession was that it was not admissible because it was not witnessed. This is not required by the Statute. Boxley v. State, 100 Tex.Cr.R. 334, 273 S.W. 589, and Carter v. State, 101 Tex.Cr.R. 611, 277 S. W. 395.

The only other objection to the confession was that certain matters set forth therein were “too remote”, “had nothing whatever to do with any facts in this case” and “tends to prove a crime that has nothing whatever to do with the alleged offense here.” While it is true that this Court has held in Watson v. State, 146 Tex.Cr.R. 425, 175 S.W.2d 423, and other cases that the State may not, in developing its case in chief, prove extraneous offenses, we do not conclude that the admission into evidence of portions of appellant’s confession which relate the reasons and means whereby he was armed and at the theater on the night in question constitute reversible error.

Finding the evidence sufficient to sustain the conviction and no reversible error appearing, the judgment is affirmed.


author: McDONALD, Presiding Judge.

text:
    William Earnest DeRAMUS, Appellant, v. The STATE of Texas, Appellee.
    No. 38551.
    Court of Criminal Appeals of Texas.
    Dec. 1, 1965.
    Carl H. Steck, Lyman A. Hall, Joe J. Newman, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Charles E. Bonney and Erwin G. Ernst, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is murder with malice; the punishment, 30 years in the penitentiary.

It is undisputed that appellant killed the deceased, who was appellant’s wife’s stepfather, by shooting him with a gun on September 5, 1964, and in view of the disposition of the case, a brief summation of the facts will suffice.

Appellant and his family occupied an apartment located above the apartment of Willis Taylor, son of the deceased. On the afternoon of September 5, appellant and the deceased drank beer with Willis Taylor in the latter’s apartment, then went to a “little beer joint next door” where they continued to drink beer until “just about dark,” at which time appellant returned home, while the deceased and his son went to another place. Willis Taylor testified that when he and his father arrived home, “ * * * I looked upstairs, and Mr. De-Ramus’ (appellant’s) door was open and so was the window and I saw him beating my sister (appellant’s wife) up, up there.” Witness Taylor went to the appellant’s apartment and gave appellant a rather severe beating, finally being “pulled off” appellant by the deceased, and it was after this fight that appellant went into a bedroom, armed himself with a pistol, and killed the deceased. It was appellant’s contention that he was in fear of his life, and was resisting an apparent attack by the deceased when the killing occurred.

Appellant testified in his own behalf, and it is the unusually zealous cross-examination of him by the prosecution which is the subject of many informal bills of exception. Complaint is made concerning the following discourse:

Q: “Now this pistol appears to be broken, is that correct ?”

A: “Yes sir. The frame is cracked.”

Q: “Did you break this pistol on your son’s head?”

At this point, appellant’s counsel objected to the question as being highly inflammatory and prejudicial, and moved for a mistrial. The trial court sustained the objection, stating, “I certainly instruct the jury to disregard it. What is your purpose of such a question?”

Prosecutor: “All right. May I go on, Your Honor?”

The Court: “Wait a minute.”

Q: “Do you deny striking your son with this pistol this very day?”

A: “Yes, sir. Ido.”

Again appellant moved for a mistrial, which the court overruled. Over counsel’s objection, the prosecutor was then allowed to ask questions concerning whether or not appellant had struck his son with the pistol on the day of the killing, on the theory that such inquiry was invited by testimony previously elicited by appellant’s counsel, and that these questions were directed toward showing the state of mind of appellant at the time of the alleged homicide. The prosecutor, after asking several questions thus limited in scope, returned to the general inquiry previously ruled to be inadmissible by the court, and asked these questions, all of which were answered negatively:

Q: “All right. Do you state that this pistol was not broken as a result of striking your son with it?”
Q: “Do you say under oath that you have never struck your son with this pistol?”
Q: “What about one week before this alleged killing? Do you say under oath that you have never struck your son with this pistol?”

Considering the record before us, the entire line of questioning was inadmissible. A search of the statement of facts fails to reveal any evidence that would lead the prosecutor to believe that appellant broke the pistol on his son’s head. Vallone v. State, 141 Tex.Cr.R. 220, 147 S.W.2d 227; Faubian v. State, 83 Tex.Cr.R. 234, 203 S.W. 897; Clements v. State, 69 Tex.Cr.R. 369, 153 S.W. 1137. Appellant testified that the pistol frame was broken when he placed the pistol in a vise and attempted to straighten the barrel, and that the grips were broken when he dropped the pistol. This evidence is undisputed. There was also no showing that, if this transaction did occur it tended to show what appellant’s state of mind was at the time he killed the deceased. Nor do we agree that appellant, “opened the door” to this line of inquiry. The only pertinent transaction of record between appellant and his son at the time these questions were asked involved a conversation between them during which appellant admonished his son for staying out so late at night. The state did not connect this conversation with the questions about the broken pistol.

In Mounts v. State, 148 Tex.Cr.R. 177, 185 S.W.2d 731, appellant was asked, “You never did pistol-whip anybody, did you?” Answer: “No, sir.” Objection was sustained and the jury was instructed to disregard the inquiry. The prosecutor then asked, “On December 24, 1933, at Live Oak-Oak Cliff Boulevard at 9:15,1 will ask you if you didn’t have an altercation and pistol-whip a victim?” The asking of these questions was found to be reversible error, as they were calculated to impress the jury that the defendant had been guilty of such an offense and amounted to unauthorized proof of facts harmful to the defendant. We reach the same conclusion in the case at bar.

The error here was compounded when the prosecutor refused to accept the court’s ruling, and persisted in asking questions along the same line. House v. State, 130 Tex.Cr.R. 520, 94 S.W.2d 1158; Coon v. State, 117 Tex.Cr.R. 158, 35 S.W.2d 419; Jupe v. State, 86 Tex.Cr.R. 573, 217 S.W. 1041.

The State contends that such inquiry was authorized by Article 1257a, Vernon’s Ann. P.C., which provides that in all prosecutions for felonious homicide, testimony is admissible as to all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the homicide, which may be considered by the jury in determining the punishment to be assessed. For the same reason, the prosecutor cross-examined appellant as to whether or not he had picked up his three-year old son by the hair on his head and slapped his face, and also as to whether or not he had forced his wife to play “Russian Roulette” with a loaded pistol. This Court held similar extraneous transactions to be highly prejudicial and therefore inadmissible in Whiteside v. State, 111 Tex.Cr.R. 116, 12 S.W.2d 218.

The State argues that even if these lines of questioning were improper, no harm was caused appellant because the questions were answered negatively or not at all; appellant’s objections to the questions were sustained; and the trial court instructed the jury to disregard these matters.

In Turpin v. State, 149 Tex.Cr.App. 179, 192 S.W.2d 277, it was stated:

“Most frequently in a case of conviction, and especially where a heavy penalty has been assessed, this court is not permitted to speculate as to the harmful effect of such efforts to introduce improper testimony. However, it has always been considered and frequently so stated that each case has its own characteristics and that we must look at the entire record with the surrounding circumstances, the nature of the evidence sought and its possible relationship to other testimony, in order to determine the probability or possibility of injury.” 192 S.W.2d 279.

While the record will not support such an assumption, we will assume for a moment that appellant did break a pistol over his son’s head, and that he forced his wife to play “Russian Roulette,” and that he picked up his son by his hair and slapped his face.

In Jones v. State, 151 Tex.Cr.R. 115, 205 S.W.2d 590, where the accused had, on the afternoon preceding the night he allegedly killed the deceased, showed a witness a shotgun and intimated that he would use it if anyone “got after him,” this Court reversed the conviction because there was no connection between the remark and the killing.

In Lee v. State, 147 Tex.Cr.R. 548, 182 S.W.2d 490, witnesses were asked about other transactions which might be considered by the jury to prove that, at some time prior to the homicide, appellant had been on a general rampage, engaging in either reprehensible or criminal conduct. This Court stated, “We are unable to find that either of these transactions had any connection with the homicide, from the standpoint of time, place or parties.” 182 S.W.2d 493.

In Spivey v. State, 146 Tex.Cr.R. 11, 171 S.W.2d 140, where a conviction for murder was reversed, this Court held inadmissible evidence to the effect that the accused had been drinking and visiting several “honky-tonks” before and after the crime which had been admitted on the theory that it showed state of mind. We stated, “What that state of mind was and what part it had on the pertinent issue of intent to kill at the time he struck (deceased) is not revealed, and we are unable to conceive of any. Under the circumstances * * * it is rather forceful, as are other items objected to, for the purpose of showing that he was a ruthless, reckless, disreputable fellow.” 171 S.W.2d 141.

It was not shown at what time any of these acts of misconduct occurred, and the acts did not reveal a previous relationship existing between appellant and the deceased, but involved transactions which, if they occurred at all, occurred between appellant and his wife and children, and do not reflect what appellant’s state of mind was at the moment he shot the deceased. These inquiries by the State simply amounted to unauthorized proof by implication that appellant had, at times previous, been in a foul state of mind, and when taken together, tend to show that he is a mean person generally. This the State cannot prove. Craig v. State, 169 Tex.Cr.R. 23, 331 S.W.2d 925; Young v. State, 159 Tex.Cr.R. 240, 261 S.W.2d 836; Spivey v. State, 146 Tex.Cr.R. 11, 171 S.W.2d 140.

For the errors reflected, the conviction is reversed and the cause remanded.


author: WOODLEY, Judge. BELCHER, Commissioner.

text:
    Hubert Wayne MORROW, Appellant, v. The STATE of Texas, Appellee.
    No. 38345.
    Court of Criminal Appeals of Texas.
    June 16, 1965.
    Rehearing Denied Oct. 20, 1965.
    Second Motion for Rehearing Denied Dec. 15, 1965.

      D. B. Mason, Dallas, Phil Burleson, Dallas (On Appeal Only), for appellant.
    Henry Wade, Dist. Atty., Ross Teter, W. John Allison, Jr., John Vance and Tom Reese, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is burglary of a private residence at night; the punishment, 20 years.

The indictment alleged the burglary of the private residence of Julius C. Roberson with intent to commit a felony, to wit, to ravish and have carnal knowledge of a named female under the age of 18 years who was an occupant of said house.

Reversal is sought upon the ground that the indictment is fatally defective in that there was no allegation that the named female was not the wife of the defendant.

The indictment was not attacked in the trial court by motion to quash or by exception. We overrule the contention that it is fundamentally defective.

The word “ravish” used in the indictment implies the use of force and want of consent and the indictment is sufficient to charge the offense of burglary of a private residence at night with intent to commit the felony offense of rape by force. Edworthy v. State, Tex.Cr.App., 371 S.W.2d 563; Rodrigues v. State, 166 Tex.Cr.R. 1, 308 S.W.2d 39.

There were no objections to the court’s charge and no requested charges were refused.

The evidence shows that at about two o’clock A.M. appellant opened the door and entered the upstairs apartment occupied and used by Julius C. Roberson as a place of residence, and entered the room in said apartment in which Mr. Roberson’s 17 year old step-daughter, a school girl, was sleeping. His baby boy and 12 year old son were also in the room.

Appellant was seen by Mr. Roberson’s step-son, Carl Dan Lee, going up the stairs. Carl Dan followed and apprehended appellant in his sister’s room. He was standing beside the girl’s bed naked, with his sexual organ in his hand.

Carl Dan hit him and attempted to hold him but appellant went across the bed and out the upstairs window. Thinking it was someone he knew, Carl Dan said “Wess?” and appellant said “Yes, man this is Wess (or West).” Carl Dan managed to hold him by the wrist until other members of the family responded to his call and helped him get appellant back into the room. His mother, step-father and brother joined Carl Dan in assaulting appellant and in attempting to restrain him. He got downstairs and out of the apartment building before he was finally subdued by Carl Dan and his 18 year old brother. They restrained him until officers responded to their mother’s call and took appellant into custody. He told the officers his name was “Smith”.

Appellant’s clothes, neatly folded and stacked, were found in a vacant downstairs apartment, the window of which had been broken. The lady occupant of another downstairs apartment, who was alone at the time, had reported to Carl Dan that someone was trying to get into her apartment through a kitchen window. His response to her report accounted for his being downstairs and seeing the man go up the stairway.

Appellant did not testify. The only evidence offered in his behalf was the testimony of his companions of the night to the effect that he was intoxicated when they separated from him at about 1 or 1:30 A.M.

The state offered the testimony of the arresting officer that appellant was not intoxicated when arrested.

The 17 year old girl named in the indictment testified that she had never seen appellant before and was not aware of his being in her room; that she was asleep until awakened by a figure going across her bed and through the window.

We find the evidence sufficient to sustain the conviction and no reversible error appears.

The judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

BELCHER, Commissioner.

The appellant now insists that the evidence is insufficient to support the conviction of burglary of a private residence at nighttime with intent to commit rape by force.

The evidence reveals that after entering the residence about 2 A.M., by force and without consent, the appellant removed all of his clothing, which he left in a vacant room, and then was seen nude going toward the room of a girl, age 17, where he was next seen and accosted as he stood beside the bed in which she was asleep, with his sex organ in his hand. When accosted, the appellant fled across the bed to a window but was pulled back, and a scuffle ensued, during which he freed himself several times but was finally restrained 'until the officers arrived. During the scuffle appellant identified himself as “Wess” or “West,” and he told the arresting officers his name was “Smith.”

The evidence of appellant’s unlawful entry into the residence followed by the indecent exposure of his body and his lustful handling of his person beside the girl’s bed when accosted, together with the other facts and circumstances, is sufficient to authorize the jury to find that the appellant entered the residence with the intent to commit rape and that he was only prevented from doing so by timely discovery.

The appellant further contends that the trial court erred in its charge by failing to require a finding of rape by the use of force.

The court in addition to defining the offense of burglary of a private residence at night instructed the jury that: “The charge in this case is the entry into a private residence at night, by force, with the intent to commit rape.” The court’s charge next defined the terms, private residence, entry, breaking, nighttime, and rape. The definition of rape, as given, was: “Rape is carnal knowledge of a female under the age of 18 years other than the wife of the person having such carnal knowledge, with or without her consent, and with or without the use of force, threats or fraud.”

The court, in submitting the case to the jury, among other findings, required the jury to find beyond a reasonable doubt that the appellant made a burglarious entry of a private residence with the intent to commit the crime of rape, before they could find him guilty.

There are no objections to the court’s charge and no requested charges, hence, no errors in the charge can be considered which are not fundamental. Art. 666, Vernon’s Ann.C.C.P.

A consideration of the charge as a whole in light of the facts and the general verdict of the jury, reveals no fundamental error.

The motion for hearing is overruled.

Opinion approved by the Court.


author: DICE, Commissioner.

text:
    Ralph Carl POWERS, Appellant, v. The STATE of Texas, Appellee.
    No. 38043.
    Court of Criminal Appeals of Texas.
    Nov. 3, 1965.
    Rehearing Denied Dec. 15, 1965.
    Farmer, Maddin, Eichelberger & Walker, Waco, for appellant.
    James E. Barlow, Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is murder; the punishment, death.

The state’s testimony shows that the deceased, Morris Weldon (Dicky) Renfro, nineteen years of age, was killed by a bullet fired from a .32 calibre pistol in the hands of appellant. The killing occurred in the parking area of Castle Hills Manor, an apartment complex on Blanco Road in the city of San Antonio, where the Renfro family lived.

It appears that on the night in question, the deceased and his friend and football teammate from Hardin Simmons University, Larry McNair, who was visiting him in San Antonio, had dates with two girls, Sharon Walters, then unmarried, and Gene Dakis. During the evening, the two couples went to a downtown movie and, after the movie, went to a cocktail lounge, where the boys had two beers. Around midnight they returned to Castle Hills Manor and went to Sharon’s apartment, in the same complex, and listened to records. Shortly after midnight they put on their bathing suits and went downstairs to the pool and went swimming. In some fifteen minutes, Sharon’s sister, who was visiting their parents at the apartment, came to the pool and asked the two couples to take her home. The boys then put on shirts and the girls put on blouses and proceeded to take her home, in a car belonging to Sharon’s parents. After staying at the sister’s apartment for five minutes, the two couples returned to Castle Hills Manor. On the return trip, Sharon drove the car, the deceased rode in the front seat, and the other couple rode in the back.

McNair testified that when they drove into the parking lot he observed an automobile parked in the lot with three people in it. As he and the deceased were getting out of their car the other car began leaving and stopped near where he. and the deceased were standing. The witness and the deceased then approached the driver’s side of the car and the deceased asked the driver if he could help him. The driver replied in the negative and stated that they were just turning around. The deceased then said, “ ‘You didn’t have to come in here to turn around, did you ?’ ” Thereupon, the appellant, who was seated in front, next to the driver, asked the deceased if he was getting smart with him. The deceased said, “ ‘No.’ ” Appellant got out of the car, came around the front with a pistol in his hand, and cursed the deceased.

Appellant then told the deceased he wanted to fight. The deceased said nothing. Appellant stated that the deceased was trying to get smart with him, to which deceased replied that he was not, that he did not want any trouble, and that “they had just had trouble in the parking lot, so he just wanted to see what was going on.” Appellant stated that “he didn’t care, he thought he was trying to get smart with him,” and the deceased said, “ ‘Well, if we are going to fight * * * Put the gun away, and we’ll go on the grass and fight.’ ” Appellant first said that he was not going to, but then handed the pistol to the driver of the car and hit the deceased with his fist. Before the deceased “could do anything,” appellant got the gun back from the driver, pointed it at the witness McNair, and told him to stay where he was. Appellant then hit the deceased on the head four times with the pistol, as the deceased was backing away and appellant was advancing upon him. After backing the deceased for a distance of between ten and fifteen yards, appellant shot the deceased with the pistol. Appellant then ran to his car, told his companions to turn the lights off and “ ‘get the hell out of here.’ ” Appellant then fled from the scene, in the ear, and two days later surrendered himself to the district attorney at the Bexar County courthouse.

The two girls, Sharon Walters — whose married name at the time of trial was Sharon Walters Jines, and Gene Dakis, both testified as witnesses for the state and gave their version of the shooting, which supported the state’s theory that appellant was the aggressor in the fatal difficulty.

It was further shown that, when shot, the deceased was unarmed, and clad in swim trunks and a Banlon shirt.

An examination of the deceased’s body by Dr. Ruben C. Santos, the acting Bexar County medical examiner, disclosed that the deceased had been shot, at close range, one time, in the right front chest. An autopsy performed upon the deceased disclosed that the bullet had gone through the aorta, and this, the doctor stated, was the cause of death.

Testifying as a witness in his own behalf, the appellant, twenty years of age, stated that on the night in question he was with two companions, John Wayne Jarvis and Kenneth Strawn; that Jarvis was looking for a friend and missed the street they were looking for and drove into the Castle Hills Manor parking lot. Appellant testified that, as they were leaving, the deceased and McNair stopped them and asked what they were doing, and that he got out of the car with his pistol because it appeared they were looking for trouble. As he started around the front of the car, McNair stopped but the deceased kept coming toward him. When the deceased started to “jump on” the appellant, the latter hit the deceased with the pistol. A discussion then ensued between them about fighting “it out” and appellant put the gun in the car. Appellant stated that the deceased and McNair then started toward him and he grabbed the gun and told them to stop. McNair stopped but the deceased did not, “so that’s when I went to hit him * * * the gun went off — it came out of my hand and went off at the same time. I didn't know what happened. Kind of stunned me, I guess.” Appellant swore that at the time the gun fired, the deceased was advancing upon him but that he did not intentionally shoot him.

The issue of appellant’s guilt was submitted to the jury upon a charge on the law of self-defense and also of accident.

Complaint is made to the court’s instructions as to appellant’s right of self-defense.

In the original charge, the court fully instructed the jury, in paragraph VI, as to appellant’s right to defend himself against an attack being made upon him by the deceased, Morris Weldon (Dicky) Renfro. In making application of the law to the facts, the jury were instructed that if they believed from the evidence that at the time appellant killed the deceased it reasonably appeared to him that the deceased was about to make an attack upon him and that he was in danger of losing his life or suffering serious bodily injury at the hands of the deceased, then they would find appellant not guilty and by their verdict acquit him.

The converse thereof was then given to the jury, with the following instruction:

“If you helieve from the evidence, beyond a reasonable doubt, that at the time and place in question it did not reasonably appear to the defendant, Ralph Carl Powers, that he was in any danger of death or serious bodily injury at the hands of the deceased, viewing all the facts and circumstances from the defendant’s standpoint at the time, then you will find against the defendant on his issue of self-defense.”

Certain objections were made by appellant to the court’s charge on self-defense, among them being his eighth objection, which stated:

“ * * * for the reason that said converse charge is an undue restriction and limitation upon the defendant’s right of self-defense and is a charge upon and a comment upon the weight of the evidence and, in effect, reverses the burden of proof and, in effect, the Court tells the jury that it is not bound to be governed by the Court’s charge on the defendant’s right of self-defense. And the defendant here and now moves the Court to delete from his charge all of that portion found on Page 7 of the Court’s charge.”

Appellant, in his ninth objection to the charge, objected and excepted to the same because it did not charge the jury on the law giving him the right to defend himself against a joint attack made by the deceased, Renfro, and Larry McNair, and moved the court to instruct the jury on the law with reference to his right to defend himself against a joint attack.

In response to appellant’s objection, the court proceeded to amend his original charge and, among other instructions, added paragraph VI-A, which instructed the jury on the right of appellant to defend himself against a joint attack being made upon him by the deceased, Renfro, and Larry McNair.

After the charge had been amended and before it was read to the jury, appellant re-urged all of his objections made to the original charge, which were by the court overruled.

We overrule appellant’s contention that the final charge given by the court on self-defense was contradictory and ambiguous because the converse charge given in paragraph VI on appellant’s right to defend against an attack by the deceased had the effect of nullifying the charge given in paragraph VI-A on his right to defend against a joint attack by the deceased and McNair. The instruction by the court in paragraph VI, submitting the converse of appellant’s theory of self-defense against an attack by the deceased, Renfro, was proper. Johnson v. State, 125 Tex.Cr.R. 381, 68 S.W.2d 202; Barkley v. State, Tex.Cr.App., 214 S.W.2d 287. We do not construe this instruction given by the court in paragraph VI — i. e.: to find against appellant on his issue of self-defense if the jury found that it did not reasonably appear to him that he was in danger of serious bodily injury at the hands of the deceased — as being applicable to his right of self-defense against a joint attack granted to him under paragraph VI-A of the charge. A reasonable interpretation of such instruction is that it applied only to the issue of appellant’s right of self-defense against the deceased. A defendant is in no position to complain of the court’s failure to submit the converse of a charge on self-defense.

Nor do we agree that the court erred in overruling appellant’s objection to the charge on self-defense because it did not instruct the jury that in determining the issue they might take into consideration the relative size and strength of the parties. In view of the unrestricted charge given by the court on self-defense, the failure to further charge on the relative size and strength of the parties is not error. Leonard v. State, 169 Tex.Cr.R. 147, 332 S.W.2d 562; Gilbert v. State, 170 Tex.Cr.R. 335, 340 S.W.2d 808.

Complaint is made in bill of exception #3 to certain argument by special prosecutor Fred Semaan in his opening argument to the jury, when he stated:

‘I want to begin by telling you that on the night of July the 19th, 1963, in the County of Bexar and State of Texas, two young men, both residents of this town, met in a driveway of an apartment house off Blanco Road. We had the right to infer from the evidence in this case that one was a fine, clean-cut young man. There isn’t a word in the testimony to the contrary.’ ”

Counsel for appellant objected to the argument on the ground that:

“ * * * it is not a fair deduction to be drawn from any of the evidence in the case, and it is not within the record. And we object to this statement made by Mr. Semaan as being prejudicial to the rights of the defendant.’ ”

Appellant’s objection was overruled by the court in the following language:

“ 'Objection be overruled, but the jury will be instructed that argument of Counsel is not evidence and is not to be considered by you as such. However, Counsel may draw reasonable deductions from the evidence.’ ”

Following the court’s ruling and appellant’s exception thereto, the special prosecutor continued in part as follows:

“ T don’t think there is any question that the evidence shows that one young man, Morris Weldon (Dicky) Renfro — was a graduate of Highlands High School here in San Antonio, that at the time this happened, that he was at home on vacation from Hardin Simmons University, where he was goifig to school and playing football. The evidence shows that another young man was out there, a man that we don’t know tod much about. We know that he carried a pistol, that he had a bad habit of carrying a pistol, by his own admission twice from the witness stand he told you that * * *.’ ”

No objection is shown to have been made to the latter argument.

We do. not construe the remarks complained of as being testimony on the part of the special prosecutor but only remarks which were a reasonable deduction from the evidence. No error is presented. Jones v. State, 153 Tex.Cr.R. 345, 220 S.W.2d 156; Sanchez v. State, 156 Tex.Cr.R. 468, 243 S.W.2d 700.

No error appearing, the judgment is affirmed.

Opinion approved by the court.