author: HOWARD, Judge.

text:
    AGIN-FEELEY SERVICES, INC., Respondent, v. INDUSTRIAL COMMISSION of Missouri and Division of Employment Security of Missouri, Appellants.
    No. 24189.
    Kansas City Court of Appeals. Missouri.
    April 5, 1965.

      Gordon P. Weir, Lloyd G. Poole, Jefferson City, for appellants.
    Edward L. Fitzgerald, Downey, Sullivan & McCormick, Kansas City, for respondent
   HOWARD, Judge.

The action below was a petition for judicial review of a decision of the Industrial Commission of Missouri. This petition was filed in the Circuit Court of Jackson County, Missouri, and in response thereto appellants filed a motion to dismiss on two grounds (1) that the Circuit Court was without jurisdiction, and (2) that the plaintiff had failed to name the Missouri Division of Employment Security as a party defendant, and that such division was a necessary party.

Respondent promptly filed a motion to add the Division of Employment Security as a party defendant in the judicial review proceeding. The Circuit Court then entered an order overruling the motion to dismiss and sustaining the motion to add the Division of Employment Security as a party defendant. The court also ordered that the Division of Employment Security “be and the same is added as party defendant”.

Notice of appeal was filed by the Industrial Commission of Missouri and the Division of Employment Security of Missouri, “from the order of the Circuit Court of Jackson County, Mo., Division No. 7, entered in this action on the 26th day of August, 1964.”

Further statement of facts is unnecessary because it appears that there is no appeal-able order in this case and that this appeal is therefore premature and must be dismissed.

This case was submitted in this court on appellants’ brief only, and we do not have the benefit of any thoughts from respondent. Appellants’ brief entirely failed to mention this question of an ap-pealable order in its jurisdictional statement. Nevertheless, it is the duty of this court to determine the matter of its jurisdiction and the existence of a proper ap-pealable order on its own motion. See Anderson v. Metcalf, Mo., 300 S.W.2d 377, In re Smith, Mo.App., 331 S.W.2d 169, and Graham v. Bottorff, Mo.App., 240 S.W.2d 191.

In the instant case, the Circuit Court overruled a motion to dismiss. This is not a final judgment and this is not an action which is specifically made appeal-able by the provisions of Section 512.020 RSMo1959, V.A.M.S. Since the right of appeal is statutory and since this action of the Circuit Court is not one from which an appeal is authorized by such statute, there is no appealable order, and the appeal will not lie. This has been repeatedly and specifically held by all the courts of Missouri which have considered the problem. This specific point was cogently disposed of by the opinion of Judge Cave of this court in Graham v. Bottorff, Mo.App., 240 S.W.2d 191. See also Nelson v. Hammet, Mo., 343 S.W.2d 75.

The other action of the Circuit Court in this case was that of sustaining respondent’s motion and ordering the Division of Employment Security to be made a party defendant. An analogous situation was considered by the Missouri Supreme Court in Bruun v. Katz Drug Company, Mo., 211 S.W.2d 918, where it was held that an order adding or denying the addition of parties to a lawsuit does not constitute an appealable order unless such order has the effect of discharging ome of the parties to the litigation or the force of creating or enlarging liability. The action of the Circuit Court in the present case does none of these things.

Absent a specific statutory authorization for appeal from the order in question, an appeal will lie only where the judgment appealed from has determined all issues as to some or all of the parties. See Anderson v. Metcalf, Mo., 300 S.W.2d 377; Bruun v. Katz Drug Company, Mo., 211 S.W.2d 918 and other cases heretofore cited. a

In the present case no issues have been determined by the order of the Circuit Court from which this appeal is attempted to be taken. As was pointed out in Nelson v. Hammet, Mo., 343 S.W.2d 75, the action in the Circuit Court was merely a step in the course of making up the issues preliminary to a hearing on the merits.

In the absence of an appealable order because of the absence of any statutory authorization for this appeal, this Court has no choice but to dismiss this appeal.

The appeal is accordingly dismissed.

All concur.


source: Caselaw Access Project

author: DAVIS, Commissioner.

license: Public Domain

text:
    Newell Edward RUDDER, Appellant, v. The OHIO STATE LIFE INSURANCE CO., a Corp., Appellee.
    Court of Appeals of Kentucky.
    March 12, 1965.
    Rehearing Denied May 14, 1965.
    Joseph J. Leary, Frankfort, Harvey Parker, Jr., Jack R. Kibbey, Charles H. Riedinger, Vanceburg, for appellant.
    Odis W. Bertelsman, Newport, Frank Wamock, Greenup, for appellee.
   DAVIS, Commissioner.

The appellant brought this action asserting his entitlement to disability payments under one insurance policy plus waiver of premiums on two life insurance policies, all issued to him by the appellee company. It is appellant’s contention that he is totally disabled within the meaning of the policies; appellee takes the contrary view. The jury found that appellant’s total disability had ceased as of December 25, 1961; the company had counterclaimed, seeking recovery of certain sums previously paid appellant and premiums formerly waived, but the trial court directed a verdict against the company as to that phase of the case. There is no cross-appeal, so the question presented by appellee’s counterclaim is not before us.

Appellant contends that he was entitled to a directed verdict; also asserted is appellant’s claim that the trial court erred in permitting a witness to testify, since the witness’s name had not been furnished appellant on discovery request.

The parties agree that the three policies were in full force when appellant was severely injured in an automobile accident on March 25, 1957. For purposes of this discussion the disability provisions relating to waiver of premiums on the life policies and providing for payment under the disability policy may be considered the same. The pertinent provision in the disability contract recites: “ * * * the company will continue the monthly indemnity * * * so long as ‘such injuries’ shall wholly and continuously disable and prevent the insured from engaging in any and every occupation or employment.” The policy also provided for payments not exceeding twelve months if the injuries so disabled the insured as to prevent his performing any and every kind of duty pertaining to his occupation. It is recognized by the parties that the policy provisions dealing with disability to engage “in any and every occupation or employment” — as distinguished from the disability to perform his occupation — are applicable.

It is plain that appellant possessed boundless energy and a driving ambition prior to his injury. He had completed a high school education and a limited course at a “normal” school, following which he was employed for a brief time teaching school. Thereafter he served as a clerk and part-time manager of his father’s general store. He undertook various enterprises, including farming (producing crops, dairying, livestock operations, etc.), a bottled gas business (which prospered in a phenomenal manner after he and a partner acquired it and devoted much effort to it), a motel (in which operation he often served as a “bellhop” by carrying in substantial quantities of luggage), a “Dairy Cheer” business — consisting of a roadside stand dispensing confections at retail — in which enterprise he labored many late hours. In addition to these activities, appellant engaged as a tobacco buyer on his own (sometimes referred to as “pinhooking”). This activity was strenuous and required arduous physical efforts, including climbing in tobacco barns to inspect crops, etc. Another substantial activity in which appellant engaged prior to the accident was the acquisition, shipping, handling and ultimate selling of cattle. In this phase of his work he traveled many miles, between Wisconsin and Kentucky, and over farms in Wisconsin locating cattle. In short, appellant was a hard-working individual with many separate types of businesses. In each of them, however, it was essential that he be robust in order to fulfill the exacting physical, mental and nervous strains upon him. Appellant testified, as did medical witnesses in his behalf, that he may no longer engage in any of these activities.

Appellant’s back was injured in the automobile accident. Three hospital confinements, at short intervals just following the accident, failed to produce the desired recovery.' Apparently appellant’s condition and disability worsened, so that in November, 1957, surgery was performed on appellant’s spine. A protruding intervertebral disc was removed and a spinal fusion attempted. The effort at fusion was not successful. Appellant spent twenty-one weeks in a cast, then some months in a wheelchair, from which status he improved sufficiently to get about with crutches and ultimately to his present condition, in which he uses a cane as a walking aid.

For the appellant, medical testimony reflected that the failure of the attempted spinal fusion has left a situation whereby there is “one raw edge of bone rubbing on another raw edge.” This condition, according to appellant’s evidence, is conducive to pain and disability. No improvement may be expected without another fusion effort, say doctors for appellant. Whether another fusion would succeed cannot be definitely foretold, although the medical witnesses agree that generally the chances for success in a second fusion effort are less than in the first attempt. It is observed that a second fusion attempt has been recommended by doctors for appellant, whereas the sole medical witness offered for appellee, Dr. Freiburg, testified that he would not recommend it “for the time being.”

The medical evidence for appellant, coupled with appellant’s own testimony as to his physical condition and the pain he encounters when he undertakes the mildest sorts of activities, is positive. In the absence of rebutting evidence of sufficient strength to reduce its persuasive force, it clearly requires a conclusion that appellant is “disabled” within the policy provision. It remains to examine the evidence proffered by appellee to determine whether its quality of probative value is such as to make a jury issue as to “disability.”

As noted, the only medical evidence presented for appellee was the testimony of Dr. Freiburg, an eminent orthopedic surgeon. Dr. Freiburg examined appellant once. Based upon his clinical findings, Dr. Frei-burg responded to a question from appel-lee’s counsel that appellant is not so disabled as to prevent his following any occupation for which he may be fitted by education, training and experience. However, upon cross-examination, Dr. Freiburg significantly qualified his answer by conceding that appellant “might” be able to walk on plowed ground, or he “might” be able to ride a tractor, or he “might” be able to drive a car — and with apparent equanimity — that he “might not” be able to do any of thesq things. As to whether appellant could renew one of his former activities (helping to load liquified petroleum cylinders on a truck) Dr. Freiburg responded: “I think he might be able to do it, and I think it might hurt, and it might not hurt.” At a later point in his evidence the doctor made this additional comment about the cylinder task: “I think probably it would bother him a great deal if he would.” As to whether appellant could mount the ladder of a silo and pitch ensilage down to cattle, it was the opinion of Dr. Freiburg that, “He might be able to- — and again he might not.” In summary, Dr. Freiburg’s testimony was so equivocal as to be virtually useless.

The witness Opal Brown is the wife of a former tenant on appellant’s farm. She also served as a practical nurse during the terminal illness of appellant’s wife. She said that every morning the appellant came to her home and told her husband to do “whatever he wanted done” on the farm. This entailed appellant’s travel from his residence across the road. On some occasions she saw appellant drive a Cadillac and at other times he drove a Jeep. On a "couple” of occasions she said that appellant got on a tractor and hauled some water so that it could be put into a tobacco setter. Two or three times, she said, she saw appellant ride a horse; he was able to mount and dismount the horse without assistance. Sometimes appellant would walk behind the tractor, watching the setting of tobacco; he would do this “for two or three rows.”

In response to the testimony of Mrs. Brown, appellant stated that he had acquired a Jeep, which he had especially fitted with bucket seats; he did this, he explained, in hope that he could find a means whereby he could drive himself about without too much suffering, but abandoned the Jeep when it failed to accomplish the intended purposes.

The litigants are in accord that Mutual Life Ins. Co. of New York v. Bryant, 296 Ky. 815, 177 S.W.2d 588, 153 A.L.R. 422, placed this jurisdiction with the majority in cases of this type. The rule as stated in the opinion just cited is: “In such contracts (nonoccupational) the insured should be required to show physical inability not only to follow his regular occupation but also any occupation for which he may be fitted by education, training and experience, which may yield a reasonably substantial gain or profit, rising to the dignity of an income or livelihood.” ibid., 177 S.W.2d at p. 592.

The opinion in the Bryant case, supra, specifically recognizes the proposition that the insured is not to be deemed “able” merely because it is shown that he could perform some trivial task, such as selling peanuts or shoestrings. The rule as just quoted requires that the insured be fitted to engage in an occupation which may “yield a reasonably substantial gain or profit, rising to the dignity of an income or livelihood.”

Recapitulating the evidence, we observe that every activity for which appellant is fitted, by education, training and experience requires strenuous physical activity. For appellant the evidence is clear and positive that he is disabled from performing all or any of the functions of the types of employment for which he is trained and experienced. Opposed to this is set the equivocal evidence that he “might or might not” do some parts of the labors required; that he “might be able to do it and I think it might hurt, and it might not hurt” — and that to do so “probably * * * would bother him a great deal if he would.”

The evidence of Mrs. Brown deals with isolated instances reflecting that appellant did perform a few relatively minor tasks incident to the operation of his farm. We think it beyond dispute that the evidence of Mrs. Brown fails to reflect that appellant could ever earn a living as a farmhand. Could it be said that he might obtain employment as a farm manager? We think not. It is true that as the owner of a farm (a capital asset which should play no part in the consideration of this question) he did show some interest, and on occasions made suggestions to the tenant as to the daily work. But if he owned no farm himself, is the quantum of proof such that an inference could be drawn that he could obtain gainful employment as manager of some other farm? The evidence for appellee falls far short of supporting such an inference.

Our cases consistently recognize the sound principle that it is improper to submit an issue to the jury so that it may make a determination of the issue by speculation or conjecture. Myers v. Walker, Ky., 322 S.W.2d 109; 18 Ky.Digest, Trial, «=»139(1) k. Evidence which does no more than suggest that appellant “might” or “might not” be able to do acts required in the occupations for which he is qualified must be characterized as speculative and conjectural. Under the factual circumstances here presented, it is our view that there was no evidence of probative value to reduce the conclusive force and effect of the appellant’s evidence so that a verdict for the appellant-plaintiff should have been directed. Cf. Kentucky Transport Corp. v. Spurlock, Ky., 354 S.W.2d 509, and cases there cited. Accordingly, it was error to deny the appellant’s motion for directed verdict and his motion for judgment n. o. v.

This view of the case makes it unnecessary to decide whether it was proper to permit the witness Opal Brown to testify.

The judgment is reversed for proceedings consistent with this opinion.


author: IRA D. SMITH, Special Commissioner.

text:
    KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION, Appellant, v. Edward YOUNG and Whayne Supply Company, Appellees.
    Court of Appeals of Kentucky.
    March 12, 1965.
    As Modified on Rehearing May 7, 1965.

      Paul E. Tierney, Melbourne Mills, Jr., Benjamin J. Mann, Frankfort, for appellant.
    T. Kennedy Helm, Jr., Nelson Helm, Louisville, for appellees.
   IRA D. SMITH, Special Commissioner.

This appeal involves just one question, —and that is the interpretation of KRS 341.370(2) (c), which denies unemployment benefits to a worker, if “he has left his most recent suitable work voluntarily without good cause.”

Both appellant and appellees agree upon the following statement of facts:

Edward Young was hired by the Whayne Supply Company on August 31, 1942. He remained in that company’s employ until February 8, 1963, when he was retired under a company policy that all plant employees be compulsorily retired upon attaining the age of 65. Mr. Young attained the age of 65 on February 5, 1963. The employees of the Whayne Supply Company do not have a union. However, employees in each of the company’s three departments elect committeemen to confer with management with respect to working rules, conditions and policy.

In 1960, after Young had been an employee of the Whayne Supply Company for 18 years, upon the recommendation of the management and acquiescence on the part of the aforementioned committee, the company placed in effect a policy that all employees must retire upon reaching the age of 65. The retirement policy did not carry with it a pension plan. Upon leaving his employment, Young filed a claim for his unemployment insurance benefits. His eligibility was challenged and the Kentucky Unemployment Insurance Commission entered an order on August 27, 1963, which held that Young had voluntarily quit his most recent work without good cause for which he was disqualified under the provisions of the above cited statute.

The Unemployment Commission is appealing from the ruling of the Jefferson Circuit Court which reversed its order and held that Edward Young was entitled to draw his unemployment benefits.

It is evident from the brief of the Unemployment Commission that it relies upon Kentucky Unemployment Ins. Commission v. Reynolds Metal Co., Ky., 360 S.W.2d 746 and Kentucky Unemployment Ins. Commission v. Kroehler Mfg. Co., Ky., 352 S.W.2d 212. We fail to see that these decisions control the instant case.

We agree with the circuit court that the termination of Young’s employment at the age of 65 was an event over which Young had little free choice. Young had been employed for some 18 years. With the approval of the workers’ committee, the company adopted a compulsory retirement plan at the age of 65. This was something to which Young did not voluntarily assent or agree. Even if he approved the retirement plan, it was not by virtue of his individual consent or choice. In other words, it was not something that he did voluntarily. In the Kroehler case it was noted that the employee had the privilege of avoiding retirement by applying to the company for permission to continue to work.

Perhaps this case should be further distinguished from the Reynolds case. In Reynolds, all employees were represented by a union under collective bargaining. Not so in the present case, although the employees elected committeemen to “confer with management” with respect to matters of mutual concern. In Reynolds, a pension plan was provided. Not so in the present case. In this case Young worked for the employer 18 years before 1960, when the retirement plan was put into effect “by the company,” with the acquiesence of the committee. Young then had only about two years to work before reaching 65. This retirement plan provided little, if any, benefits for Young. It is a case where “Young” was too old. We deem it unnecessary in this particular case to decide whether the “committee,” elected by the employees, had a right to bind all the employees of Wayne. The important and controlling question to Young and to this Court is, WAS HIS EMPLOYMENT DISCONTINUED VOLUNTARILY by Young or by his authorized agent? We conclude it was not. This Court said in Reynolds:

The purpose of the General Assembly in the enactment of such legislation was to provide benefits for only those employees who have been forced to leave their employment because of forces beyond their control and not because of any voluntary act of their own.

It seems to us the action of the employer two years before Young’s retirement age was an act beyond his control without benefit to him and against his interest within the meaning of the law. We can discover no act or conduct of Young from which it can be said he voluntarily discontinued his employment.

As we read the record in this case Young did not have a choice. We think the word “voluntary” must certainly be defined as meaning “freely given” and “proceeding from one’s own choice or full consent.”

The circuit court was correct in construing the statute in this case and its judgment should be affirmed.

The opinion is approved and the judgment is affirmed.


text:
    Isaac THARP et al., Appellants, v. The URBAN RENEWAL AND COMMUNITY DEVELOPMENT AGENCY OF the CITY OF PADUCAH, Kentucky, Appellee. Charles L. OVERTON et al., Appellants, v. The URBAN RENEWAL AND COMMUNITY DEVELOPMENT AGENCY OF the CITY OF PADUCAH, Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 5, 1965.
    As Modified on Denial of Rehearing April 30, 1965.

      Adrian H. Terrell, Terrell, Schultzman & Hardy, Joseph J. Grace, Paducah, for appellants.
    Roy N. Vance, Paducah, for appellee.
   DAVIS, Commissioner.

The present appeals (in consolidated cases) present a novel question arising from certain zoning regulations as related to market value of property being condemned for Urban Renewal purposes. A subordinate question as to the appropriate date to be used as the “taking” date also is presented.

The appellants (property owners in the respective cases) own adjoining lots fronting upon the north side of Beltline Highway in Paducah. The lots are situated in the area now known and referred to as the Tyler Park Urban Renewal area in that city.

Under a comprehensive zoning ordinance, adopted in 1952, all property on both sides of Beltline Highway from Maggie Street east to the city limits was zoned for R-3 Two-Family residential use. All of the property remained in that classification until June 8, 1961, at which time the comprehensive zoning ordinance and zoning map were amended and revised. By the terms of the latter ordinance, the entire Tyler Park Urban Renewal area (including the lots here involved) was classified as M-2 Light Industrial. The M-2 classification was further limited by a provision forbidding residential and business uses except those accessory to an established and operating industrial use.

On February 23, 1960, the Paducah Board of Commissioners adopted an ordinance creating an Urban Renewal Agency. KRS 99.320. Shortly before that enactment, the various property owners of the lands abutting Beltline Highway, including the instant property, had filed application with the appropriate authority, seeking rezoning of the property to a B-3 General Business classification. A tentative report was adopted February 17, 1960, by the zoning authority as its proposal to so change the classification to the B-3 General Business classification. However, at a hearing on March 16, 1960, the zoning authority did not change the classification, but continued the matter generally.

It was at the March 16th hearing that the executive director of the Urban Renewal Agency appeared before the zoning authority and apprised that agency that the Urban Renewal authority “desired to have zoning in that area [in which the presently involved property is situated] frozen keeping it in the residential classification.” It appears that the zoning authority took no further action affecting the Tyler Park Urban Renewal area until its action of June 8, 1961, mentioned above, whereby the M-2 Light Industrial classification was made effective.

The appellants proffered evidence, which was received by avowal only, to the effect that the highest and best use for their property is “highway commercial” use — the type of use permissible under the B-3 classification that had been sought. Additionally, appellants presented by avowal evidence tending to support their contenion that but for the influence of Urban Renewal, there was reasonable probability that favorable zoning to B-3 classification could be obtained. This evidence was bolstered by a showing that community demands indicate the reasonable probability of immediate need for such business type properties in Paducah.

Appellants have ably urged that we should follow decisions which permit an exception to the general rule as it relates to testimony for uses against which a property is zoned. In Long Beach City High School District v. Stewart, 30 Cal.2d 763, 185 P.2d 585, 173 A.L.R. 249, the principle is thus stated:

“In other words, the general rule is that present market value must ordinarily be determined by consideration only of the uses for which the land ‘is adapted and for which it is available.’ The exception to this general rule is that if the land is not presently available for a particular use by reason of a zoning ordinance or other restriction imposed by law, but the evidence tends to show a ‘reasonable probability’ of a change ‘in the near future’ in the zoning ordinance or other restriction, then the effect of such probability upon the minds of purchasers generally may be taken into consideration in fixing present market value.”

Numerous authorities from other jurisdictions are collated in the annotation found at 173 A.L.R. 265 et seq. Many of them recognize and apply the rule as just enunciated. Although the matter seems to be one of first impression in this jurisdiction, we are of the view that it is not appropriate to reach it in the case at bar.

It is recalled that the Paducah zoning authority had the application of appellants for rezoning to B-3. Although it appears that no formal ruling on that application was ever made, the appellants do concede that the classification to M-2 on June 8, 1961, had the effect of denying the B-3 applications. We are precluded from looking into the motives of the zoning authority when the action of the zoning authority does, in fact, bear an appropriate relation to the objects of the zoning statute. Adams v. City of Richmond, Ky., 340 S.W.2d 204, 206; City of Louisville v. Bryan S. McCoy, Inc., Ky., 286 S.W.2d 546. Thus, it appears to us, it would not he appropriate to submit as an issue whether there is reasonable probability of obtaining a changed zoning in face of the action of the zoning authority. Such a submission would involve entirely collateral matters, to wit, the motives underlying the completed actions of the zoning authority and the factors both real and speculative that might influence their actio'ns in the future.

Paducah is a second class city. KRS 81.010. There is no specific statutory appeal process prescribed as respects actions of zoning authorities in such cities. However, our decisions recognize that the courts will afford redress against injurious action of such zoning authorities if the actions are illegal, arbitrary and capricious. Hatch v. Fiscal Court of Fayette County, Ky., 242 S.W.2d 1018. See also American Beauty Homes Corp. v. Louisville, etc., Ky., 379 S.W.2d 450, for discussion of scope of judical review of actions of zoning bodies. It is our view that under the circumstances shown in this case the action of the zoning authority classifying the instant land in M-2 Light Industrial foreclosed the inquiry as to any likelihood that a B-3 classification could be obtained.

What we have just said makes is unnecessary to further consider the appellants’ claimed error in the trial court’s refusal to instruct the jury on appellants’ theory of reasonable prospect for obtaining changed zoning.

Counsel for all parties have asked that we indicate the controlling date for determination of the precondemnation value of the property. The evidence disclosed that a public hearing relating to the Tyler Park area was held shortly before October 17, 1961, the date on which the city commission adopted the urban renewal project. We adhere to the rule that the property owner is entitled to the value of his property taken by condemnation as of the taking date; however, we have recognized the corollary rule that the “before” valuation date is at the time just before it was generally known that the public project would be performed. Com. of Ky., Dept. of Highways v. Wood, Ky., 380 S.W.2d 73, and cases there cited. The rationale for the rule is that the landowner is not to be penalized for any depreciation in value attributable to the public’s learning of the condemnation, nor is the condemnor to be required to pay for any enhancement in values which may be attributable to the proposed project. In these cases the interlocutory judgment prescribed by KRS 99.420(9) was not entered until August 13, 1963; there was evidence that the market values in the area had increased between October, 1961, and August, 1963.

It is our view that the “taking date” may properly be said to be August 13, 1963, but the jury should be instructed that neither enhancement nor depreciation in value, attributable to the public project, is to be considered in fixing “before” valuation. Cf. Com. of Ky., Dept. of Highways v. Blackburn, Ky., 364 S.W.2d 332; 147 A.L.R. 66 et seq. Since this question is not presented for review in the present appeals, the trial court’s nonobservance of the principles here enunciated has no effect on the judgments before us.

The judgments are affirmed in each appeal.


author: STEWART, Judge.

text:
    James R. VanHOOSE, Appellant, v. Anne B. BRYANT et al., Appellees. William FINLEY, Administrator of the Estate of Ruth Collier Finley, Deceased, Appellant, v. Anne B. BRYANT et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 18, 1964.
    Rehearings Denied and Opinion Modified May 14, 1965.

      E. Durward Weldon, Georgetown, Brown, Tooms & Helton, London, for appellant James R. VanHoose.
    G. H. Eversole, Hamm, Taylor & Milby, London, for appellant William Finley, Adm’r of Estate of Ruth Collier Finley, deceased.
    Rucker Todd, John T. Bondurant, Louisville, J. Milton Luker, London, for appel-lees Anne B. Bryant and Britain H. Bryant.
    Ray C. Lewis, William J. Weaver, London, for appellee Robert Smith.
   STEWART, Judge.

Robert Smith brought an action against William Finley, individually and as administrator of his wife’s (Ruth Collier Finley’s) estate, referred to herein as “Finley,” and against James R. VanHoose. Finley cross-claimed against VanHoose and the latter counterclaimed against Finley. In a separate action Anne B. Bryant and Britain H. Bryant filed suit against Van-Hoose and Finley. This litigation developed from a two-car collision. These cases were tried together and have been consolidated in this appeal.

The jury verdict found VanHoose and William Finley, as administrator of Ruth Collier Finley’s estate, equally liable and gave each of the three plaintiffs below $8000, “plus expenses.” The trial judge determined these two parties were jointly and severally liable; he “corrected” the verdict on his own initiative and entered judgment against them by awarding Smith, $8316.14, Anne B. Bryant $8856.45, and Britain H. Bryant, $9480.61. He dismissed this case as to William Finley, individually, and he also dismissed the cross-claim of Finley against VanHoose and the counterclaim of the latter against Finley. It is from this judgment that VanHoose and William Finley, as administrator aforesaid, appeal.

As we are reversing the judgment for reasons shown hereinafter and as there may be another trial of these actions, two questions are raised that should be resolved, based upon the record before us. They are:

Was either Finley or VanHoose entitled to a directed verdict acquitting him of any negligence ?

Were the instructions given by the trial court erroneous? We reach this second question because our answer to the first is in the negative.

This accident occurred around 7:25 p. m. on August 20, 1961, at a time when it was almost dark and when it was drizzling rain. VanHoose was driving his car northwardly on Highway No. 229 toward London. The highway is of asphalt or blacktop construction, affording one lane of traffic in each direction. He had three passengers in his car: Warren VanHoose, seated in front on the right side; Anne B. Bryant, seated in front in the middle; and Britain H. Bryant, lying down in the back seat. Ruth Collier Finley was operating a car owned by her and her husband southwardly toward Barbourville. Her only passenger was Robert Smith, an acquaintance, whom she was taking to obtain some gasoline at Hayner Mills’ store, which is situated a short distance from where she had picked him up. The store is located on the east side of the highway; the two cars met head on while she was enroute to this store. Ruth Collier Finley was killed almost instantly and the others were injured in various degrees of severity.

There were four eyewitnesses, James R. VanHoose, Warren VanHoose, Green Cal-lebs and James Willard Parmon, who actually saw the collision and testified to the course the respective vehicles traveled, with reference to the center of the highway, before the impact. Each of these persons stated that the cars approached each other in a normal manner until they were a short distance apart, and then the Finley car swerved over in to VanHoose’s lane and struck his car. VanHoose also said that, shortly before the mishap, he had come over the top of a hill and had passed another car. It appears established that the VanHoose car was traveling 40 to 50 miles per hour at the time and it did not slacken its speed. The two Bryants in the VanHoose car testified they were asleep and, for this reason, knew nothing concerning what happened before the cars ran together.

Smith testified Ruth Collier Finley on the occasion of the accident was operating her car at a rate of speed of between 25 and 30 miles per hour. He was riding in the front seat. Immediately before the collision he saw two cars, running side by side in both traffic lanes with their headlights on and coming toward the Finley car. When they were approximately four or five car lengths away, he cried: “Lord, have mercy! Look out!” He must have fainted because he testified he remembered nothing thereafter until the following Wednesday. He did recall, however, that the Finley car was on its side of the highway before he lost consciousness.

Houston Biddle, a witness called in behalf of Smith, testified that on the day of the accident he operated a store on the west side of the highway, 300 to 450 feet south of the point of collision of the two cars. According to his testimony, just before the cars met, he was standing in the doorway of his store, and he saw the VanHoose car proceeding northwardly. At that time this car was in the southbound lane traveling beside another car it was in the act of passing. He did not witness the collision of the two cars but looked after hearing the noise of their contact and saw them rising up in the air. He could not say in which portion of the highway the cars were when they ran into each other. He immediately went to the scene of the wreck and observed some glass in the middle of the highway.

A state trooper, Albert Miller, called as a witness by VanHoose, testified he arrived at the site of the accident sixteen minutes after it occurred. According to his testimony, all the debris and glass were in Van-Hoose’s traffic lane. He also testified that he talked with Smith at the hospital in London that same night; that Smith was then under sedation and he “couldn’t understand him,” as he was able to say only “two or three words;” and that Smith told him the Finley car, when it met the other car coming toward it, “cut over into the other lane of traffic, he didn’t know why.” Smith later stated under oath he did not remember making any statement to the state trooper while he was at the hospital.

Upon the basis of the foregoing evidence did the trial court correctly refuse to direct a verdict for Finley or VanHoose? We believe the issue as to who was responsible for the accident was for the jury to determine.

In Mahaffey v. Jones, Ky., 345 S.W.2d 379, this Court said: “It is a familiar rule that a motion for a directed verdict admits the truth of the evidence of the party against whom the motion is directed and all reasonable inferences which may be drawn from it as well.” The question of negligence becomes one of law for the trial court only where there is no controversy or conflict, and only one conclusion may be drawn by reasonable minds. Adams v. Parsons, Ky., 313 S.W.2d 426; Wathen v. Mackey, 300 Ky. 115, 187 S.W.2d 1000; and Hogge v. Anchor Motor Freight, Inc., of Delaware, 277 Ky. 460, 126 S.W.2d 877.

Smith testified that very shortly before the accident he saw two cars approaching, side by side, and one of these cars was coming toward the Finley car in its lane. Both cars were going fast and continued traveling on both sides of the highway. When they were some four or five car lengths away, he shouted a warning to Mrs. Finley, passed out, and could not remember anything else that occurred prior to the collision. He did not identify the car in the Finley traffic lane. Houston Biddle reinforced Smith’s testimony by placing the VanHoose car in the southbound lane, or on the Finley side, of the highway, while the VanHoose car was at most some 450 feet from the point of impact. If Van-Hoose’s rate of speed, which is not in dispute, was 40 to 50 miles per hour, it would take only a matter of seconds to cover the 450 feet, and one could believe he might have encountered difficulty in getting over in his right of way before the cars made contact.

So, taking the evidence of Smith and Biddle together, the jury, which found the drivers equally at fault, could have reasonably inferred that the car Smith saw coming toward the Finley car in the latter’s lane was the VanHoose car. The jury could also have concluded from Smith’s evidence that the VanHoose car was not entirely on its side before the cars met.

Both appellants objected to certain instructions given by the trial court. Van-Hoose specifically argues that the evidence introduced did not warrant telling the jury: (1) That it was the duty of VanHoose, in passing another vehicle, “not to drive to the left of the center of the highway within 100 feet of an intersection;” (2)' that he should “drive at a rate of speed not in excess of what should be reasonably safe” under the conditions of travel prevailing at the time; and (3) that it was his further duty not to overtake and pass another vehicle “unless he could return to the right-hand side of the highway before coming within 100 feet” of an oncoming vehicle. In addition, he contends “instruction No. 15,” a so-called “sudden emergency” instruction, was not authorized.

We believe the trial court erred in giving instructions (1) and (2). We are not holding that the submission of these points constitute a reversible error; we are taking the position they should not be given at another trial, if one is had. The first of these relates to passing near the intersecting Hoppertown Road on VanHoose’s right as he drove northwardly. The Finley car was not entering or leaving Highway No. 229 at its intersection with the above road; it was traveling straight ahead on the highway, and the cars met 102 feet before the Finley car reached the Hoppertown Road where it intersects the highway. Furthermore, there is no evidence whatsoever that any traffic was on, or even near, the intersecting side road and, in consequence, no hazard could have arisen at this point as the two cars drew near each other beyond it. We might add that we know of no provision of law, nor have we been cited any, which supports the giving of the instruction in accordance with the language used.

As regards instruction (2), with reference to speed, there is no evidence that the VanHoose car was exceeding the lawful limit in effect at the time and place of the accident. Neither is it shown that the speed of either vehicle was the proximate cause of the accident. The case of Brown v. Crumpton, Ky., 252 S.W.2d 670, is very close to the instant case on the facts. There a truck, traveling at a rate of speed of 50 miles per hour, which was within the lawful limit, collided with an oncoming car, and the sole issue raised was whether the truck was in the car’s lane of traffic when the two vehicles met. The jury was told to find whether the truck’s speed was a causative factor in connection with the accident. This Court, reversing because that instruction was given, said: “Excessive speed of an automobile does not lead to liability unless it was the proximate cause of the injury, or, as a matter of defense, a contributing cause. * * * Similarly, even though the truck was on its wrong side, its speed could not have been the proximate cause of the collision * * *."

Coming now to a consideration of the duty imposed upon VanHoose by instruction (3), and the “sudden emergency” instruction which was submitted at the instance of Finley, we are of the opinion that the jury was properly allowed to consider these two issues. When it is recalled that Smith testified two cars were bearing down upon the Finley car, one in each lane; that the one in the Finley lane was four or five car lengths away when he lost consciousness ; and that, according to Houston Biddle’s testimony, the VanHoose car was passing another car on Finley’s side of the road when he saw it, shortly before the accident — this evidence certainly created a question of whether the provisions of KIRS 189.340(3) were violated by VanHoose.

Also, a jury could find these same facts generated an unexpected situation which caused the driver of the Finley car to turn involuntarily over onto VanHoose’s side of the highway when suddenly confronted by it on her side. Smith’s testimony intimated she may have done this when the accident appeared imminent. It was for the jury to say whether, under the particular circumstances, the course pursued by Mrs. Finley was reasonable. See Stanley’s Instructions to Juries, Vol. 1, sec. 139a, p. 256.

Finley contends the instructions as given were misleading, complex, and confusing, because the wording of some instructions referred the jurors to other instructions. Reference from one instruction to another is often required in order to best submit to the jury various questions for their decision. The number of parties to this litigation and the presence of counterclaims and cross-claims produced numerous factual issues for the jury to decide. Of necessity the instructions had to be somewhat lengthy and a bit complex, but we do not find them misleading or confusing. Finley also states that no instructions were given for findings upon the part of the jury on the cross-claim and counterclaim, but obviously “Instruction No. 11-1” was overlooked. Complaint is also made that the instructions failed to require the drivers to operate their respective cars in a careful and prudent manner. However, “Instruction No. 2” says this in substance.

Finley offered an instruction on joint enterprise, so that the negligence of VanHoose could be imputed to the Bry-ants, thus precluding any recovery by them against Finley. Before such an instruction is justified it must be shown that the passenger or passengers had some right, express or implied, to control, manage or direct the movement of the car. See Wright v. Kinslow, Ky., 264 S.W.2d 673, and McCoy v. Carter, Ky., 323 S.W.2d 210. The proof does not establish that the Bryants had any of the rights mentioned above.

Finley also requested the trial court to instruct that if the Bryants knew or should have known that VanHoose was drinking while operating the automobile in which they were riding, they would be guilty of contributory negligence. In Hendricks v. Garst, 314 Ky. 49, 234 S.W.2d 160, this Court held that testimony quite similar to that relied upon by Finley for the giving of this instruction was not sufficient to warrant submission to the jury of the question of intoxication of the driver of the automobile.

However, the judgment must be reversed for the reason that one of the jurors, Mrs. J. L. Buchanan, was guilty of misconduct. The facts concerning this point are: The jury returned one verdict on Saturday, November 10th. It was so inconsistent with the instructions and the evidence that the trial judge took the case from the jury and dismissed them until Monday, November 12th, stating he would resubmit the case on the latter date and admonishing them to talk to no one, or permit anyone to talk to them, about the case. On Sunday, November 11th, Mrs. Buchanan, accompanied by her husband, drove to the scene of the accident. Her husband and two attorneys for Finley had gone to this site some two weeks before the trial and made some measurements. On Monday morning she told one other juror about her trip. Mrs. Buchanan wanted to see where the roads and the stores were located. Mr. Buchanan pointed out to her a place where he and the two attorneys for Finley had previously done some measuring, and also directed her attention to a road Ruth Collier Finley had turned off before the accident.

The foregoing facts were brought out on the motion for a new trial filed on behalf of Finley. A hearing on the misconduct question was held at which Mrs. Buchanan, her husband and Nora Mays testified. The latter was the other member of the jury who was informed by Mrs. Buchanan on Monday of her visit to the locale of the accident. The Bryants objected to the reception by the trial judge of any testimony from any member of the jury which tended to impeach the verdict. It is unclear from the record how the circuit court ruled on the objection. Be that as it may, the testimony at the hearing was taken down and is a part of the record.

We are aware of the rule laid down in Pollack v. Southern Ry. Co. in Kentucky, 220 Ky. 302, 295 S.W. 150, on the general proposition that the evidence of jurors may not be received either to prove the misconduct of themselves or of their fellow jurors, “occurring within or without the jury room.” The facts in the case at bar were elicited, not alone from Mrs. Buchanan and Nora Mays, both of whom were jurors in this case, but from Mrs. Buchanan’s husband as well. Therefore, we have the statements of a person who was not on the jury, with the result that the evidence introduced concerning Mrs. Buchanan’s misconduct may be considered. Furthermore, there is no contradiction as to Mrs. Buchanan’s activity. Thus the instant case is factually similar to Brock v. Smith, Ky., 268 S.W.2d 947, where a woman juror, accompanied by her husband, made an unauthorized inspection of the place where an automobile accident had occurred.

This Court has repeatedly condemned the practice resorted to by Mrs. Buchanan, Brock v. Smith, supra, being one of the latest cases to do so. In 39 Am.Jur., New Trial, sec. 78, p. 92, it was said; “ * * * Even though the action of a juror is casual, natural, and unsurreptitious, and there is no reason to believe that he intended improperly to affect his own judgment or to influence that of his fellow jurors, a new trial may nevertheless be granted where there seems to be fair reason for supposing that these consequences resulted.”

The act of Mrs. Buchanan in making her private investigation of the locus in quo takes on a very special color when the fact, is established that her husband, who was present with her, had some interest, which he did not explain, in the Finley side of the case at bar. It will be recalled he had gone previously to the wreck site with two of Finley’s attorneys to help them take measurements. Under the circumstances, it is strongly indicated Mr. Buchanan may have had some peculiar feeling about the outcome of this case, which feeling we cannot help but presume he communicated to his wife.

We are of the opinion the unauthorized visit of Mrs. Buchanan to the site of the accident, under the facts presented, definitely influenced her view of the case and may have affected the result of the verdict. It was pointed out in Brock v. Smith, supra, that “ * * * it is important not only that every litigant have a fair trial, but also that he have no reason to believe he did not have a fair trial.”

Other errors are assigned that raise questions we do not believe will recur in the event of a retrial of this case and, for this reason, we do not deem it necessary to extend this opinion by discussing them.

Wherefore, the judgment is reversed and the case is remanded for proceedings consistent with this opinion.


author: SMITH, Justice.

text:
    Ex parte Richard Mack HODGE.
    No. A-10646.
    Supreme Court of Texas.
    April 7, 1965.
    John Howze, Lee Arnett, Odessa, for relator.
    Merritt F. Hines, Midland, for respondent.
   SMITH, Justice.

This is an original habeas corpus proceeding in which relator, Richard Mack Hodge, seeks release from the custody of respondent, the sheriff of Midland County, Texas. The relator is ordered discharged.

The order of commitment was issued out of the 142nd Judicial District Court of Midland, Texas, on October 12, 1964. The relator was confined under this written commitment on February 26, 1965. The commitment recites that relator was committed to jail for “the offense of contempt of court * * He was released on bond by order of this court pending a determination of the validity of the judgment ordering him confined.

The precise question with which we are concerned is whether on the record before us relator was denied constitutional due process. The record shows that the relator was committed to the custody of the sheriff of Midland County, Texas, by virtue of the above-mentioned order of commitment without the issuance of a show cause order by the trial court, and without a hearing. Clearly, the relator was denied due process when he was committed to the custody of the sheriff by virtue of the order of commitment alone. In cases involving constructive contempt like the present where the record does not show a show cause order was issued much less timely served, and where an adequate hearing was denied, the contempt judgment is invalid. See Ex parte Winfree, 153 Tex. 12, 263 S.W.2d 154, 157, 41 A.L.R.2d 1259 (1953).

The respondent, in effect, admits that relator was not accorded a hearing before the issuance of the order of commitment on October 12, 1964, or at any other time, but contends that the relator was not being held in custody under that order. The respondent further contends that the relator was being held in custody under a capias issued on February 19, 1965, in Cause No. 16,016, The State of Texas v. Richard Mack Hodge, pending in the County Court of Midland County, Texas. The sheriff served the capias by arresting the relator and placing him in jail on February 26, 1965. The sheriff of Midland County, on March 1, 1965, accepted and approved an appearance bond in the amount of $1,000 to insure the relator’s appearance in the County Court to answer the charges contained in the complaint pending there. The record discloses, however, that the sheriff declined to release the relator, assigning as his reason that relator was also being held by virtue of the commitment order of October 12, 1964.

On the facts before us we are constrained to hold that relator was denied due process of law. See Ex parte Hill, 122 Tex. 80, 52 S.W.2d 367 (1932); Ex parte Hardin, 161 Tex. 567, 344 S.W.2d 152 (1961); Ex parte Davis, 161 Tex. 561, 344 S.W.2d 153 (1961).

Relator is ordered discharged.


author: DICE, Commissioner.

text:
    Johnnie WILLIS, Appellant, v. The STATE of Texas, Appellee.
    No. 38202.
    Court of Criminal Appeals of Texas.
    April 28, 1965.
    Richard D. Bird, Childress, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant was convicted of unlawfully selling beer in a dry area and his punishment was assessed at six months in jail and a fine of $500.

The state does not seek an affirmance of the conviction, because it is shown by bill of exception #2 that appellant did not enter a plea in the case. Such position is well taken, as a plea is necessary in every criminal case and where none is entered the trial is a nullity. See: Lumsden v. State, Tex.Cr.App., 384 S.W.2d 143, and cases therein cited.

An affirmance is also not sought for the further reason that bill of exception #3 shows that the complaint was not sworn to by the complainant. This position is also well taken, as a complaint which is not sworn to will not support a prosecution by information. Art. 415, Vernon’s Ann.C.C.P.; Colbert v. State, 166 Tex.Cr.R. 431, 314 S.W.2d 602; Purcell v. State, Tex.Cr.App., 317 S.W.2d 208.

The judgment is reversed and the prosecution is ordered dismissed.

Opinion approved by the court.


author: BELCHER, Commissioner.

text:
    Genevieve Florence SANTOS, Appellant, v. The STATE of Texas, Appellee.
    No. 36627.
    Court of Criminal Appeals of Texas.
    April 28, 1965.
    John J. Browne, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James I. Smith, Jr., and Edward N. Shaw, Jr, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

This case was affirmed by this Court. Thereafter, the Supreme Court of the United States, 85 S.Ct. 952 granted certiorari upon appellant’s petition alleging violation of her constitutional rights on the ground that the officers entered and searched her apartment and seized certain evidence by the authority of an invalid search warrant.

The disposition of this case is controlled by the order of the Supreme Court of the United States remanding the case to this Court “for further consideration in light of the opinion of this Court in Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723.”

In Aguilar the Supreme Court said:

“We conclude, therefore, that the search warrant should not have been issued because the affidavit did not provide a sufficient basis for a finding of probable cause and that the evidence obtained as a result of the search warrant was inadmissible in petitioner’s trial.”

From an examination and consideration of the affidavit upon which the search warrant was issued in this case, it is evident that the decision in Aguilar is here applicable and controlling.

The judgment is reversed, and the cause is remanded.

Approved by the Court.


author: WOODLEY, Judge. MORRISON, Judge.

text:
    Ex parte Samuel SMITH, Jr.
    No. 38062.
    Court of Criminal Appeals of Texas.
    March 24, 1965.
    Rehearing Denied April 28, 1965.
    H. R. Rolston, Lufkin, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State,
   WOODLEY, Judge.

Appellant, charged with murder with malice of his six year old daughter, being denied bail after indictment, sought relief by habeas corpus and was granted bail in the sum of $15,000.00.

Effort to make bail in such amount was unsuccessful and appellant again sought by habeas corpus a reduction in the amount of bail set.

This is an appeal from the order of the district judge denying the application for reduction of bail.

Reduction is sought upon the ground that the state relies upon the incompetent or unreliable testimony of a seven year old daughter of appellant to prove that appellant killed the deceased.

In the absence of any testimony of a defensive nature, and no mitigating circumstances being shown, we find no abuse of discretion on the part of the trial judge in refusing to reduce bail.

The judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Judge.

Appellant has attached to his motion for rehearing a supplemental transcript in a case against his wife which indicates that her bond was set in the sum of $7,500 and asks that his bond be reduced to the same sum. We need not determine whether or not such instrument is properly before us for consideration because the statement of facts on appellant’s application for a reduction of bail reflects that appellant struck the last blows and the trial court was authorized to set appellant’s bond accordingly.

Appellant’s motion for rehearing is overruled.


author: McDONALD, Presiding Judge.

text:
    Ex parte Charles O. BRIAN.
    No. 38281.
    Court of Criminal Appeals of Texas.
    April 28, 1965.
    Baldwin & Goodwin, by Joe B. Goodwin, Beaumont, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

Relator filed his application for Writ of Habeas Corpus pro se directly in this Court under the authority of Art. 119, Vernon’s Ann.C.C.P. The basic allegation of the application is grounded upon his incarceration in the Texas Department of Corrections under a void judgment, said judgment having been rendered on July 27, 1962, in Cause No. 6480, of the District Court of Orange County, Texas. Said judgment reciting, “It is, therefore, considered and adjudged by the Court that the defendant, Charles O. Brian, is guilty of the offense of burglary as confessed by him in his said plea of guilty herein made, and that he be punished by confinment in the State Penitentiary for a term of not less than two nor more than twelve years.”

This Court, after receiving the application for Writ of Habeas Corpus, directed the 12th District Court of Walker County to develop the facts, and a hearing was held on December 4, 1964, before the Honorable Max M. Rogers with the Assistant Attorney General, the Honorable J. G. Davis, representing the State. After the facts were developed, same were submitted to this Court, and this cause was set for submission before this Court on April 21, 1965.

The Statement of Facts reveals that the relator is being confined by virtue of the judgment in question, a copy of which was introduced in evidence and is attached to the Statement of Facts. This record also reveals that relator’s confinement under said judgment is the only authority under which he is presently being held in the Texas Department of Corrections and there are no other charges or judgments against him. The record further reveals that there has never been any nunc pro tunc correction of the judgment in question. The record clerk for the Texas Department of Corrections, Mr. J. C. Roberts, further testified that at the time of the hearing the relator had served calendar time of two years, five months and seven days with a total time of four years, six months and nine days.

Relator relies upon the decisions of this court in Ex parte East, 225 S.W.2d 833, 154 Tex.Cr.R. 123, Ex parte Church, 163 Tex.Cr.R. 357, 292 S.W.2d 120, and cases therein cited as supporting his contention that the judgment is void for uncertainty as to punishment, and he seeks release from further confinement under such conviction.

In the absence of a definite term being assessed by the court or jury, there is no basis for a valid sentence under Art. 775, V.A.C.C.P.

We adopt herein the procedure outlined by this Court in the case of Ex parte Hannen, 155 Tex.Cr.R. 10, 228 S.W.2d 864, 230 S.W.2d 236, in our disposition of this case.

Relator is not entitled to be discharged, but he is ordered relieved from present confinement in the Texas Department of Corrections and delivered by the authorities of said Texas Department of Corrections to the custody of the Sheriff of Orange County, Texas, to abide the further orders of the District Court of Orange County, in Cause No. 6480, on the Criminal Docket of said court.

Unless upon a hearing in said court it be shown that the entry of the judgment was by clerical error, and such error be corrected in the manner provided by law by the entry nunc pro tunc of the judgment actually rendered showing a definite punishment to have been actually assessed at the time of trial, relator shall be held to answer the charge in the indictment as though a new trial had been granted.

But should it be shown that on the original trial, relator was adjudged to be guilty of the offense of burglary and his punishment was assessed at a definite term, and a correct judgment be entered nunc pro tunc (now for then), relator’s sentence may likewise be reformed to follow such judgment. The sentence may not be otherwise altered except to make it speak the truth as to the sentence heretofore pronounced, but may be by the court credited with the time relator has been confined on such charge. Relator shall have his right of appeal from such judgment and sentence so corrected by nunc pro tunc entry.

The writ is granted as above set forth.


text:
    Henry Walter STONEHAM, Appellant, v. The STATE of Texas, Appellee.
    No. 37973.
    Court of Criminal Appeals of Texas.
    March 24, 1965.
    Rehearing Denied May 5, 1965.

      Charles E. Benson, Lubbock (on appeal only), for appellant.
    Alton R. Griffin, Dist. Atty., William M. Laubach, Asst. Dist. Atty., Lubbock, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is burglary; the punishment, enhanced under Article 63, Vernon’s Ann. P.C., by two prior convictions for felonies less than capital, life imprisonment.

The state adduced testimony from Elmo Umlang showing that he was service manager for Western Forklift Company in Lubbock, Texas; that he was in full custody and control of the building that was entered on the night of October 1, 1963; that he knew the appellant, who had formerly worked as a parts man under his employment; that he saw appellant in the alley on the night of October 1, at approximately 9:30 just before he (Umlang) left; that he did not talk with appellant; that when he came to work the next morning a window was broken out and a cash box which was kept in the filing cabinet and the money in it were missing; that the appellant knew where the cash box was kept, as did all the employees of the company. Witness Umlang testified that he had not given appellant permission to break in the building or to take cash from the filing cabinet. This witness further testified upon cross-examination that he did not know, of his own knowledge, that appellant broke into the building and took the money, and that of his own knowledge he did not know but that some one of the four other employees may have taken it, as they all knew where the money was kept.

Herbert Brink, a member of the police department of the city of Lubbock, testified that he investigated a “break-in” call at Western Forklift Company on October 2, 1963, and found that a window had been broken; that a cash register in the back of the building was empty and a filing cabinet had been opened and the contents moved around.

Chief Deputy Sheriff George Eubank testified that he had a burglary warrant for appellant’s arrest and that he went to Wheeling, West Virginia, about the middle of October to get appellant; that he brought appellant back and placed him in the Lubbock County jail on October 17, 1963, and that appellant had been in custody ever since and had not been released from jail since that date.

Jack Reeves testified that he was an investigator for the district attorney’s office of Lubbock County; that he saw appellant on March 5, 1964; that on said date appellant made a voluntary statement to him at the district attorney’s office; that all statutory formalities were complied with and that in his opinion the appellant knew the consequences of signing the statement. Appellant’s counsel objected to “going into anything about a statement given by this defendant, first, for the reason that there is a fatal variance between the statement and the offense for which this man is charged. The burglary is alleged to have been committed on the 1st day of October, 1963, and this alleged statement states that he committed a burglary on November 1, 1963, and that at that time‘he was in jail, by the testimony of the officers, so there would be a fatal variance between the statement and the offense for which the man is charged, and that is the objection that I am going to have to any testimony regarding any statement, by the witness.”

Omitting the formal parts, the statement reads:

“On the first of November 1963 I went to the Western Forklift which is located at 1610 4th street. I went to a window that is located in back of the building. I broke out this window and crawled into the building. Once inside I went to a filling cabnet which is located in the office. I opened the drawer and got the cash box out. I then went back out the same way that I got in. When I left I took the cash box and the money that was in it with me. I left the next day for West Virginia and I took the cash box with me. I wish to say that the Western For& Lift that I broke into is located in Lubbock County, Texas.”

We here observe that there was no error on the part of the trial judge in admitting the confession. The variance complained of was certainly not fatal. It merely raised a fact issue which the jury resolved against appellant. The one month’s difference in dates did not take the offense of burglary out of the limitation period, the indictment having been presented on July 9, 1964. We perceive no error in its admission.

The two prior convictions were established from testimony of J. R. Dever, district clerk of Lubbock County, Texas, who testified from the original records in the two causes. The state also established the identity of appellant from testimony adduced from Wayne Love, a lieutenant of the Lubbock police department, showing appellant to have been the same person convicted in the first case in 1957. The state also introduced certified copies of the prison records of appellant, reflecting the two prior convictions. Additionally, H. H. Jackson, a fingerprint expert from the sheriff’s office of Lubbock County, testified that he had examined and compared the fingerprints in the records of the two prior convictions with fingerprints taken from appellant on October 17, 1963, and that the three sets of fingerprints were of the same man.

We find the evidence sufficient to sustain the jury’s verdict.

Appellant’s able counsel brings forward several contentions which he forcefully urged in his brief and oral argument as error.

We have heretofore disposed of one of the contentions with reference to the variance between the indictment and appellant’s confession as to the date of commission of the offense. We find no error in the admission of certain testimony to the fact of the other prior convictions, the date of commission of the second prior offense, and the identification of appellant. We disagree with appellant’s contention that this testimony allowed the state to go into the details of these prior offenses.

The confession of appellant, in which he admitted breaking and entering the building, rendered unnecessary a charge on circumstantial evidence. 4 Branch’s Ann.P.C.2d 888, Sec. 2555; Glover v. State, Tex.Cr.App., 46 S.W. 824; Winn v. State, 82 Tex.Cr.R. 316, 198 S.W. 965. This is true, notwithstanding the discrepancy between the date of the commission of the offense alleged in the indictment and the date named in the confession. Dimery v. State, 156 Tex.Cr.R. 197, 240 S.W.2d 293.

We perceive no reversible error in the court’s instruction to the jury that the statement in appellant’s confession that he committed the burglary in “November” was exculpatory, and to acquit him unless they believed from the evidence beyond a reasonable doubt that the state had disproved such statement by other evidence. Treating the statement as exculpatory was favorable to appellant.

Appellant’s remaining contention that reading the allegations of the indictment charging the prior convictions and making proof thereof before the jury trying him for the primary offense constituted a deprivation of due process of law has been recently rejected by this court. See: Crocker v. State, 385 S.W.2d 392, and cases there cited.

The judgment is affirmed.

Opinion approved by the court.


author: McDONALD, Presiding Judge. MORRISON, Judge. WOODLEY, Judge

text:
    William CAMERON, Appellant, v. The STATE of Texas, Appellee.
    No. 37661.
    Court of Criminal Appeals of Texas.
    Feb. 3, 1965.
    Rehearing Denied April 7, 1965.
    Second Motion for Rehearing Denied May 12, 1965.

      Holman, Saccomanno, Clegg & Martin, .by Jake B. Clegg, Jr., Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Theodore P. Busch, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is a violation of Art. 695, Vernon’s Ann.P.C., which is the statute dealing with nuisances. Appellant was convicted of carrying on a trade, business or occupation injurious to the health of those persons who then and there resided in the vicinity. Appellant’s business was the manufacture of plastic fabric-films. The allegation was that appellant permitted noxious fumes, gases and odors to escape from his premises and permeate the air of the vicinity. The information recited a prior conviction for an identical offense, and the punishment was enhanced under Art. 61, V.A.P.C., the punishment being a fine of $105.00. The parties stipulated the testimony showing the prior conviction.

The state adduced testimony from numerous witnesses showing that before midnight on October 4th and after midnight of the 5th of October of 1963, numerous complaints were made about sickening odors coming from the plant. The state’s case is built around the testimony of Charles James, an employee of the Harris County Health Department in the Air and Water Pollution Section. Mr. James testified that he went in the plant in question on October 7th, and told Mr. Cameron of the complaints that he had received. James stated that Mr. Cameron said he was familiar with the situation on October 3rd and 4th that the men on the night shift “passed down to him.” Witness James testified that Mr. Cameron told him what somebody else had told him. We shall quote from the record:

Q: “On the evening of October — you were there several days later?”
A: “Yes sir.”
Q: “Did Mr. Cameron tell you he had been there on that occasion?”
A: “No sir, he didn’t.”
Q: “Did he tell you he was not there?”
A: “No sir, he didn’t say either way.”
Q: “You didn’t ask him?”
A: “No sir.”
Q: “On that occasion he told you some employees of the Griffolyn Manufacturing Company, if they had been on the night shift, had advised him what had happened?”
A: “Yes sir, on the 3rd and the 4th, two (2) different dates.”
Q: “You saw him on the 3rd?”
A: “No sir, on the 7th, and he said that he had the problem on the 3rd, but on the 4th it was actually worse off, and that is when they went in and found this water line plugged up and the material was going out.”

The state also relies strongly upon the testimony of appellant’s witness, Ralph R. Yoho. His testimony reflects that he received no instructions from Mr. Cameron; that Mr. Cameron was not in charge of his type of work back in October of 1963, and that Mr. Cameron had nothing to do with putting the pieces of plastic together. Mr. Yoho further testified that there are generally IS or 20 men on a shift. He testified that in the event the line got clogged up, and he couldn’t repair it himself he would go to Mr. Hermann, the plant superintendent; that he would never go to Mr. Cameron, that it wasn’t his capacity. The witness further related that he had never seen Mr. Cameron working on the reactor; that Mr. Cameron was the president of the company and tried to get business for the company; that Mr. Cameron is not there all the time and that he (Mr. Cameron) goes on sales trips sometimes.

Mr. Yoho then related that he was “called up — I was told in the evening by Mr. Hermann (in response to the question, 'How about back in October of 1963, was it offensive then?’) to go out there and put a charge on this reactor, a catalyst, and I would do that, and on an occasion or two (2) due to the small capacity of the reactor it would boil over and that boiling over would result in an odor, this escaped odor.” To a question propounded by the Court: “Who told you to do this?” The witness responded: “Mr. Hermann, the plant superintendent — .”

Upon cross-examination the witness, Yoho, stated that if Mr. Cameron told him to do something that he would do it. Also, he said that if Mr. Hermann told him to do something and Mr. Cameron countermanded the order, “naturally I have to obey Mr. Cameron.”

Robert Callihan, a witness for appellant, testified that he was a plumber; that his shop was about 100 yards from the Griff-olyn Manufacturing plant; that he had done some work for Mr. Cameron; that he repaired some broken lines and that Mr. Hermann or either Mr. Cameron would call and “we would go over there and Mr. Hermann would show us what to do.” The witness related that he did not know he had repaired the lines that had been testified to earlier as having been stopped up. He further testified that after he got over to the plant that Mr. Hermann told him what to do most of the time but that sometimes Mr. Cameron would be there and say what to do.

We observe that the entire testimony of the witness Callihan, is silent as to any date that he did work at appellant’s plant.

There is certainly nothing in the record to indicate that Mr. Callihan made any repairs to the reactor or lines after the event of October 4th and 5th, or that appellant requested him to do so. The state did not even establish that appellant was in charge of the operations of the company. We could conclude from the evidence before us that appellant had an active vice-president in charge of all operations, as easily as we could conclude that appellant was in charge.

The evidence fails to show any personal connection on the part of appellant with the operation or maintenance of the plant. He cannot be held liable criminally for the acts of his subordinates or employees in the absence of a showing that he was connected therewith in some manner recognized by law, whereby one may be criminally liable for the acts of another or others. McCollum v. State, 165 Tex.Cr.R. 241, 305 S.W.2d 612. In Deramus v. Thornton, 160 Tex. 494, 333 S.W.2d 824 by the Supreme Court of Texas, McCollum is cited with approval on page 829 of their opinion.

The facts do not warrant a conviction in this case.

The judgment is reversed and the cause remanded.

ON STATE’S MOTION FOR REHEARING

MORRISON, Judge.

The State urges that we reconsider our holding and now say that Cameron, though he was not shown to have been in any manner personally connected with the acts complained of or knowingly permitted the same to be done, should be found guilty. The majority remains convinced of the soundness of the reasoning of the Supreme Court of this State in Deramus v. Thornton, 160 Tex. 494, 333 S.W.2d 824, and are assured that such reasoning is applicable here.

The State’s motion for rehearing is overruled.

WOODLEY, Judge

(Dissenting on State’s Motion for Rehearing).

The trade or business carried on at 6813 Dixie Drive, in Harris County, on October 4, 1963 under the name “Griffolyn Manufacturing Company” or “Griffolyn Plastic Films” was the manufacturing of plastic fabric films.

The man in charge of the company and its president was appellant. The witness Newby referred to the manufacturing business as “his plant”.

The process involved the sealing together of sheets of polyethylene film of various weights and fibers with adhesives and converting these into various types of tarpaulins and other protective covers.

The undisputed evidence shows that offensive odors permeated the atmosphere in the vicinity from time to time. On the night of October 4, 1963, the date alleged in the information, such odors were sufficiently strong to awake persons living in the vicinity, nauseate them and cause them to notify the Health Department and the Police.

The state was not required to prove what caused the offensive odors which came from the manufacturing company. Such evidence, was, however, elicited by appellant from his witness and employee Yoho who testified that some of the chemicals had an odor which, under the method employed at the time of the trial, was eliminated; that in October 1963, prior to a larger reactor and improved filtering system being installed, there was an odor on occasion, sometimes stronger than others; that on an occasion or two he put a charge on the reactor and “due to the small capacity of the reactor it would boil over and that boiling over would result in an odor, this escaped odor — we don’t have that overflow problem now with the different reactor improved filtering system.”

In view of this evidence introduced by the defendant it is difficult to see how the trial judge could have concluded that the cause of the odors permeating the air was the negligent act of a subordinate employee with which appellant was not in any manner connected and which he did not knowingly permit to be done.

Even so, the majority errs in holding that the trial judge, trier of the facts, was bound to so conclude.

Due to the punishment provided, appeals from convictions for a first offense under Art. S9S Vernon’s Ann.P.C. cannot reach this Court on appeal.

If the statute is not to be rendered impotent as a deterrent to air pollution, it should be clearly pointed out who, under the evidence, if anyone, violated the statute, and what negligent act committed by him caused the pollution of the air for which the president and head of the business, whose office was in the plant, is absolved.

Unlike the statute under which McCol-lum was prosecuted for a single act of polluting the water in the Houston Ship Channel, Art. 595 V.A.P.C. does not provide for a criminal prosecution of the company or corporation. In this connection, I fail to find any evidence that Griffolyn Manufacturing Company or Griffolyn Plastic Films was a corporation.


author: McDONALD, Presiding Judge. WOODLEY, Judge

text:
    Horace Melvin PRUITT, Appellant, v. The STATE of Texas, Appellee.
    No. 37783.
    Court of Criminal Appeals of Texas.
    Feb. 24, 1965.
    Rehearing Denied April 28, 1965.
    Bill D. Wood, Tyler, Milton Greer Mell, Gilmer, for appellant.
    Leon B. Douglas, State’s Atty., Austin, W. E. Coats, Jr., Dist. Atty., Hunter W. Brush, Asst. Dist. Atty., Tyler, for the State.
   McDONALD, Presiding Judge.

The offense is unlawfully transporting intoxicating liquor, wine, in a dry area; the punishment, a fine of $500.00.

The state’s evidence, adduced largely from testimony of a highway patrolman of the Texas Department of Public Safety, reflects that the patrolman stopped appellant on a country road, at about 10:00 P.M., purportedly to check his driver’s license. While he had appellant stopped he flashed his flashlight into the car and “saw a top of a case of — or the top portion of a box which was a case of wine. I didn’t know it was a case of wine at the time but there was a box in there which usually contained wine and it was marked as such.” The patrolman then stated that he asked the driver to step back of the car and “at that time I investigated the carton- to see if it contained any type of alcoholic beverage” and after said examination he continued: “I found a full case of wine, contained in the carton”. This state’s witness had earlier testified that appellant had been stopped by him for the purpose of a driver’s license check; that appellant had showed him a valid driver’s license and that completed his check. The patrolman further related that he had no prior information that appellant was transporting liquor; that he had no warrant for his arrest; that appellant was not violating the law, nor did he have any information that appellant was violating the law for the purpose of checking to determine whether he had a valid operator’s or other “driver’s license”. The officer testified that it was “dark; so whatever I saw, I saw with the light”. “I didn’t see it until I shined the light on it.” In response to the question: “It was not visible while you were checking the driver’s license, was it ?”, the officer responded: “If it was visible, I didn’t see it.” The patrolman further testified that the case of wine was revealed to his sight in the light, of the flashlight and that it was unnecessary for him to have flashed his flashlight into the back of appellant’s car in order to check whether or not appellant had a driver’s license. Appellant’s counsel then asked the patrolman upon cross-examination: “Your purpose in making a search of the car was trying to get evidence of law violations, wasn’t it?” The witness replied: “It was to get further evidence if there was any.” Then followed this question: “That was your purpose in looking then. Let’s change the phraseology. Your purpose in looking in the car was to get evidence of law violations, wasn’t it?” The answer was: “I would say to determine if there were any.” Then, this question : “Was that not your purpose in stopping him in the first place?” The patrolman responded: “As a matter of fact, it was.”

Appellant’s counsel contends that the patrolman had no right to stop appellant for a driver’s license check but that if he did have the right to stop him for this purpose, that the resulting search was illegal and that the trial court erred in admitting evidence pertaining thereto and the fruits thereof.

From the testimony adduced in this case, it is clear to us that the appellant was stopped by the patrolman so that the patrolman might get evidence of a law violation. Assuming however, that the patrolman did stop appellant to check his driver’s license, then the patrolman had no right to make a search as an incident to this stopping, under the circumstances of this case. Had he seen the wine visible to his naked eye, lying on the front seat of the automobile, then the evidence would have been admissible for it would have been secured without the need for a search. The officer would have been witnessing a violation of the law in his presence, just the same as though appellant had a pistol lying on the seat in plain view. We think, however, that the search actually started when the officer shined or flashed the flashlight in the back of the car. The examination of a licensee’s driver’s license does not carry with it the right to search the vehicle. A licensee is not under arrest during this examination period. It is only when he is without a valid license in his possession that he becomes a law-violator. Here, the appellant had in his possession and presented to the officer a valid, unexpired driver’s license. This finding terminated the patrolman’s responsibility in this matter. His further acts of making the search, and the action of the trial court in admitting, over appellant’s objection, testimony as to the search and the fruits thereof contravene Article 727a, Vernon’s Ann. C.C.P., and other constitutional and statutory provisions.

Tennessee has a statute similar to our own Art. 6687b, Section 13, Vernon’s Ann. Civ.St., which has been construed in several cases by the Supreme Court of that State, in which they have been confronted with searches similar to that in the instant case. That Court has held such searches to be unauthorized under their statute. In Cox v. State, 181 Tenn. 344, 181 S.W.2d 338, 154 A.L.R. 809, their Supreme Court held in a case similar to the one at bar that the arrest was a mere subterfuge. That Court also announced similar holdings in Robertson v. State, 184 Tenn. 277, 198 S.W. 2d 633, and in Murphy v. State, 194 Tenn. 698, 254 S.W.2d 979. We adhere to these pronouncements and adopt them as our views in the disposition of this case.

Our disposition of this case makes it unnecessary for us to here pass upon the question of the authority of any peace officer to stop a motorist for the purpose of determining whether or not he is in possession of a valid driver’s license. We shall pass upon that question when it is squarely before us.

The facts in Lee v. State, 164 Tex.Cr.R. 106, 296 S.W.2d 782, place that case in a different category from the case at bar. The record in Lee’s case reflects that “it was not dark enough for the defendant to have his car lights on, this happened in the afternoon, but was still light enough to drive his car safely without the necessity of lights.” The officer saw the carton of beer in the trunk of the defendant’s car. “There was a bale of alfalfa hay in there, and the trunk lid was tied down but was not closed because this hay was standing on edge. I could see the beer carton from where I was standing.” While Lee’s case was decided upon the basic premise that consent was given for the search, it is clear to us that the officer observed a violation of the law in his presence; that is, he saw the beer, he did not need to make a search to discover it. In the case at bar the officer used a flashlight. It was ten o’clock at night.

For the reasons stated, the judgment is reversed and the cause is remanded.

ON STATE’S MOTION FOR REHEARING

Rehearing overruled.

WOODLEY, Judge

(dissenting).

The Tennessee cases referred to in the majority opinion hold that the statute of that state requiring that a motorist shall exhibit his driver’s license upon demand of any state highway patrolman empowers patrolmen at any time to stop an automobile and require the driver to exhibit such license, but that such officers must exercise such right in good faith and not as a pretext for inspection of or prying into contents of a motor vehicle or any other possession of a citizen. (The Tennessee Statute differs from Art. 6687b (13) V.A.C.S. in that only a Tennessee State Highway Patrolman may require a motorist to exhibit his license.)

I do not find in the record support for holding that the authority of the patrolmen ceased at nightfall or that the shining of the light into the back of the car was a search or that the stopping of the car and flashing of the light was a mere subterfuge or excuse for failure to secure a search warrant or that the patrolmen were primarily actuated by a desire to detect a violation of the local option liquor law.

Patrolman Praytor testified that when he first saw appellant “ * * * he was on an oiled road in Smith County; anyway my partner and I were on routine patrol and met him. He was driving more or less in the middle of the oiled country road.”

He further testified in the absence of the jury:

“Q. Will you state whether or not it is a part of your responsibilities as a highway patrolman to check driver’s licenses?
“A. Yes, it is.
“Q. Will you state if it is a matter of your routine, periodically, to stop vehicles for the purpose of checking driver’s licenses?
“A. Yes, sir; one of the requirements of our job.
“Q. State whether or not you were so engaged on February 15, 1964?
“A. Yes, sir, I was.
“Q. State if that was the reason for which you stopped this Defendant?
“A. Yes, it was.”

I respectfully dissent.


author: WOODLEY, Judge.

text:
    Algie Legrand JONES, Appellant, v. The STATE of Texas, Appellee.
    No. 38016.
    Court of Criminal Appeals of Texas.
    March 31, 1965.
    Rehearing Denied May 12, 1965.
    Ronald R. Waldie, Dallas, for appellant.
    Henry Wade, Dist. Atty., Ross Teter, John Stauffer and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is drunk driving; the punishment, 30 days in jail and a fine of $100.

The undisputed evidence shows that appellant drove a Chevrolet automobile into the rear of a Ford automobile that was stopped at a street intersection in Irving, Dallas County, about 10:30 P.M. He was the sole occupant of the Chevrolet in which were a six pack, several empty cans and one partially empty can of beer.

Appellant was thrown against the steering wheel and received a cut underneath his chin and other injuries.

At his request he was taken to Methodist Hospital where his injuries were .treated and then to Parkland Hospital where a blood specimen was drawn at 3:05 A.M.

Police Officer Andrews, who investigated the collision and made the arrest, testified that he noted a strong smell of alcohol on appellant’s breath when he was checking him for injuries at the scene; that his eyes were very bloodshot and his speech barely audible, and that from his observation of him and his experience in observing intoxicated persons he formed the opinion that appellant was intoxicated.

William D. Yates, who witnessed the collision and was the first to reach appellant, testified that he was gasping for breath and he could tell that he had been drinking something, but how much or what he did not know and he formed no opinion as to whether he was intoxicated.

Testifying in his own behalf, appellant admitted having consumed two beers at the place where he purchased two six packs and that he drank one can and opened another out of one of the six packs. He denied that he was intoxicated.

All of the grounds upon which reversal is sought relate in some way to the examination of Dr. Morton F. Mason and his testimony to the effect that an analysis of the blood sample taken from appellant at 3:05 A.M. showed an alcohol content of O.134 percent which he testified would have been at least 0.03 percent higher at 10:30 P.M., assuming that no alcohol had been consumed since that time; and Dr. Mason’s testimony to the effect that all persons having 0.134 percent of alcohol in their blood would be under the influence of alcohol and would not have the normal use of their mental and physicial faculties; and his further testimony to the effect that in his opinion any individual who attains a blood-alcohol concentration as high as 0.10 percent will become under the influence of alcohol.

Appellant first complains that Dr. Mason should not have been allowed to testify to a variance in a blood specimen between 10:30 P.M. and 3:05 A.M., the contention being that he was not shown to be qualified as a medical expert.

While Dr. Mason is not a physician or a medical doctor, it would be difficult to match his qualifications shown by this record to testify as to all phases of scientific tests relating to concentration of alcohol in the blood and the results of such tests. Dr. Mason’s qualifications include the following:

Doctor of Philosophy degree in Chemistry
Bachelor of Science degree
Associated with Vanderbilt School of Medicine for 10 years
Since 1944, Professor in a Dallas School of Medicine, teaching physicians as well as medical students in the field of toxicology and the study of alcohol and its effects upon the human body
Director of the Dallas City-County Criminal Investigation Laboratory
Made numerous tests to confirm evidence already present in scientific literature concerning the percentage of blood alcohol concentration at which a person will become under the influence of alcohol.
Had testified for the state in drunk driving cases around a thousand times.

We note further that Dr. Mason at no time attempted to testify as to the exact variance in the alcohol content, but only that it would have been at least 0.03 or 0.04 percent greater at 10:30 P.M., giving the individual the benefit of having the slowest oxidation rate that he ever heard of.

During the lengthy cross-examination of Dr. Mason, in which there were various references to a text book and certain tests made in 1938, in an effort to show that 0.20 rather than 0.10 was the crucial point at which mild to moderate intoxication occurs, appellant complains that at one time the court remarked “Overrule you", and at another, stated “Can we get down to the fine points * * * instead of so much of this rambling?” and “we are going to be here three days on this,” and that he interrupted counsel and said “Go ahead, but cut it down as short as you can. I hope the jury’s getting some benefit from this.”

We are unable to agree that the court’s remarks were beneficial to the state or an injury to appellant.

Assuming that the court’s remarks were not a proper method of expediting the cross-examination (which covers some 27 pages of the statement of facts) they were not such comment as were reasonably calculated to prejudice appellant’s rights and do not call for reversal. See Phelper v. State, No. 37,771; Adams v. State, 165 Tex.Cr.R. 523, 309 S.W.2d 245.

We find no merit in the contention that the trial court erred in sustaining objection to the question propounded to Dr. Mason on cross-examination as to how many occasions he had testified in a drunk driving case where the test read 0.134 percent. It was of no significance how many, if any, of the tests in such cases read precisely 0.134 percent.

The remaining claim of error relates to argument. We have considered the argument and objection thereto and find no reversible error.

The judgment is affirmed.


author: SELLERS, Justice.

text:
    GULF COAST ALUMINUM SUPPLY, INC., Appellant, v. Maudie DUKE, Appellee.

      No. 118.

    Court of Civil Appeals of Texas. Tyler.
    April 15, 1965.
    Albert Levy, Mullinax, Wells, Morris & Mauzy, Dallas, for appellant.
    Jack B. Strong, Longview, for appellee.
   SELLERS, Justice.

This is an appeal from an order overruling the plea of privilege filed by the appellant to be sued in Dallas County, Texas. The appellee controverted the plea by alleging venue under Subsections 5 and 7 of Article 1995.

The appellee’s suit is to recover damages for a breach of a written contract to install in a workmanlike manner aluminum siding on appellee’s house located at 1608 Timpson, Longview, Texas. The contract form furnished by appellant and duly executed by both parties so far as material, provides:

It is admitted that the aluminum was actually installed on the house of appellee at 1608 Timpson, Longview, Texas. Subsection 5 of Article 1995 provides:

Subsection 5. “Contract in writing.— If a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.” (Emphasis added.)

Appellant’s assignment of error is that the contract wholly fails to allege the county where the work is to be performed and for this reason Subsection 5 has no application.

The facts are undisputed that 1608 Timpson, Longview, Texas, is the house and home of appellee and this court will take judicial notice that Longview is the county seat of Gregg County, Texas. North Texas Tank Company v. Pittman, Tex.Civ.App., 290 S.W.2d 724; Houston Heating & Air Conditioning, Inc. v. Semands, Tex.Civ.App., 318 S.W.2d 777.

Since the contract provides that the repairs are to be made on appellee’s house and that 1608 Timpson in Longview is in Gregg County and the home of appellee by the undisputed proof, Subsection 5 has been complied with and appellant’s contention is overruled. A case very similar on the facts is that of Butler, Williams & Jones v. Goodrich, Tex.Civ.App., 288 S.W.2d 887, where the written contract which referred to the place as “your residence below Navasota,” was sufficient to maintain venue in Waller County when the undisputed evidence placed such residence in Waller County.

In view of the foregoing, we likewise sustain the trial court’s finding that fraud was committed in Gregg County and venue is sustained under Subsection 7 of Article 1995.

The judgment of the trial court is affirmed.