author: MONTGOMERY, Judge.

text:
    Brit HANDY et al., Appellants, v. CITY OF HAZARD, Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 11, 1966.

      C. A. Noble, Jr., Hazard, for appellants.
    W. E. Faulkner, Hazard, for appellee.
   MONTGOMERY, Judge.

Brit Handy and his wife appeal from an order dismissing a condemnation proceeding filed by the City of Hazard pursuant to KRS 99.420. The gist of their complaint on appeal is that the proceeding should not have been dismissed after they had answered and agreed to accept the award made by the commissioners.

Action No. 3461 was filed by appellee to acquire for urban renewal purposes certain described property owned by appellants. Commissioners were appointed who made an award of $13,100. Appellants answered, indicating their willingness to accept the award. No exceptions were filed by ap-pellee but an order was entered by the court dismissing the proceeding without prejudice. Appellants filed a motion to' set aside this order.

The court had a hearing on appellants’ motion and held that the order of dismissal was void under CR 41.01, but it also held that any defect had been cured by the hearing on appellants’ motion under consideration. There being no counterclaim filed,’ the court then dismissed the proceeding. It is this order of dismissal’from which the appeal is prosecuted.

Appellants assign several reasons why the order should not be upheld, none of which is meritorious. It appears that the commissioners, in making the award, took into consideration some of appellants’ property adjoining the property sought to be condemned. Apparently the adjoining property had been omitted by mistake from the description of the property sought to be condemned. This explains appellants’ willingness to accept the award and appellee’s desire to have the first proceeding dismissed. It appears that a similar proceeding, Action No. 3497, with a corrected description, including the omitted property, was subsequently filed.

The rule in eminent domain proceedings is that the condemnor in the absence of statutory regulation to the contrary may abandon the proceeding at any time, even after judgment, so long as possession has not been taken or the award paid. Commonwealth, Dept. of Highways v. Fultz, Ky., 360 S.W.2d 216; Shelton v. Webster County Soil Conservation District, Ky., 377 S.W.2d 81; Commonwealth, Department of Highways v. Holloman, Ky., 390 S.W.2d 666. The award had not been paid and possession had not been taken under this proceeding. No statutory regulation contrary to the rule has been cited. In Kroger Company v. Louisville & Jefferson County Air Board, Ky., 308 S.W.2d 435, it was held that the property owner, in the absence of bad faith or unreasonable delay on the part of the condemnor, cannot collect damages by reason of the abandonment of the condemnation proceeding. The rule is an old one. Manion v. Louisville, St. L. & T. Ry. Co., 90 Ky. 491, 14 S.W. 532, 12 Ky. Law Rep. 445. The order of dismissal was proper.

Judgment affirmed.


source: Caselaw Access Project

author:
MONTGOMERY, Judge.
      HILL, Judge

license: Public Domain

text:
    Crusoe HUFF, Appellant, v. HARLAN COUNTY BOARD OF EDUCATION et al., Appellees.
    Court of Appeals of Kentucky.
    July 1, 1966.
    Rehearing Denied Dec. 16, 1966.
    Joe Nagle, Denham, Ralston & Nagle, Middlesboro, for appellant.
    Garrett M. Castle, Ray O. Shehan, Harlan, for appellees.
   MONTGOMERY, Judge.

Crusoe Huff appeals from a judgment denying him recovery of $5,966.71 claimed due under a continuing service contract. KRS 161.720 et seq. The Harlan County Board of Education claims that Huff’s failure to accept a similar position with the same salary justifies its placing him at another position with a reduction in salary.

Appellant had been employed in the Harlan County School system for over twenty-nine years. In 1933 he received a “Standard Certificate” which was subsequently extended for life. On July 8, 1957, he entered into a continuing service contract as defined in KRS 161.720(4) with the Harlan County Board of Education. It is recited in the contract that it is in the form “prepared by the Superintendent of Public Instruction and approved and adopted by the State Board of Education.”

Under the contract appellant continued to perform the required services. For the school year 1960-61 he was employed as an elementary school principal. By letter dated April 26, 1961, he was notified by the Superintendent of the Harlan County Board of Education that he had been re-employed under his continuing service contract. Ap-pellees concede that this letter of notification was not required for re-employment.

Subsequently appellees decided to abolish the position which appellant had occupied in the school year 1960-61. On June 12, 1961, by order of the Board, appellant was transferred from his old position to one as principal of the Black Star High School, with no reduction in salary. Appellant objected to this transfer on the ground that he was not qualified to be a high school principal. It is admitted that he later learned that he was so qualified. It is admitted in appellees’ pleadings that a relative of the Superintendent’s returned to Harlan County and was employed for that year as an additional elementary school principal, which position was not offered to appellant. On July 10, 1961, the Board, by its order reciting that appellant had refused to accept the Black Star position, offered appellant a teaching position in the Black Mountain School. Appellant subsequently taught there at a reduction in salary of $2,002.23 for the school year 1961-62 because, he said, it was too late to get another position. He sued in 1962. He continued to perform services under his contract until the amount in controversy at the time the appeal was filed was $5,966.71.

The question is whether appellees could reduce appellant’s salary because o'f his refusal to accept the Black Star position. The rule concerning employment under a continuing service contract is that such contract does not prevent the Board of Education from transferring the employee from one school to another or from one class of teaching position to another unless the contract specifies the school or class of position in which the teacher is to be employed. Neither was specified here. Marshall v. Conley, Ky., 258 S.W.2d 911, and cases cited therein; Marshall v. Walters, Ky., 265 S.W.2d 787. In such cases the salary of the transferred employee cannot be reduced unless the reduction is a part of a uniform plan affecting the entire district. KRS 161.760. Board of Education of Nelson County v. Lawrence, Ky., 375 S.W.2d 830, and cases cited therein. There was no such uniform plan of salary reduction in Harlan County.

The trial court sought to distinguish the Nelson County case on the ground that the Board acted arbitrarily. In view of the statutory provisions embodied in the teacher tenure contract the distinction is not valid.

It is expressly provided in the contract between the parties that the contract “shall be continued from year to year” and "shall remain in full force and effect, * * * except as modified by mutual consent, in writing, of the Board and the Teacher, unless and until terminated with written notice, stating cause or causes, to the Teacher, * * The means by which a tenure contract might be terminated were set forth by statute. KRS 161.720(4) provided that the contract “shall remain in full force and effect until the teacher resigns or retires or until it is terminated or suspended as provided in KRS 161.790 and 161.800.” Guthrie v. Board of Education of Jefferson County, Ky., 298 S.W.2d 691; Lewis v. Board of Education of Johnson County, Ky., 348 S.W.2d 921.

It is therefore concluded that ap-pellees could transfer appellant but could not reduce his salary unless the contract had been modified by mutual consent in writing. It was not. Under the terms of the contract and pursuant to KRS 161.-760, appellees were obligated to pay appellant a salary not less than the salary paid him the previous year. The reduction in salary was in violation of the contract and KRS 161.760. No question is raised concerning the personal liability of the Board members. Race v. Humphrey, 301 Ky. 10, 190 S.W.2d 686; Babb v. Moore, Ky., 374 S.W.2d 516. It is unnecessary to determine whether appellant’s conduct in refusing the Black Star position merited disciplinary action, but if any were taken it would have had to be taken in accord with the contract and pertinent statutes.

Judgment reversed.

HILL, Judge

(dissenting).

I respectfully dissent from the majority opinion in this case for the reason that it sets a dangerous precedent for the school systems of the Commonwealth.

Appellant was offered a position in another school at the same salary he had been theretofore receiving. He was qualified for the position to which the superintendent of schools decided to transfer him. He says he declined to accept the transfer (to Black Mountain School) because he did not think he was qualified for the position from the standpoints of education and experience. But, it is not law in this Commonwealth that a teacher may determine his educational qualification or his qualification from experience. It is provided in KRS 160.380 that, “ * * * all appointments, promotions and transfers of principals, supervisors, teachers and other public school employes shall be made only upon the recommendation of the superintendent of schools, subject to the approval of the board.”

Under the provisions of KRS 160.370, the superintendent “shall be the executive agent of the board,” and it is his further duty to “prepare under the direction of the board, all rules, regulations, bylaws and statements of policy for approval and adoption by the board. He shall have general supervision, subject to the control of the board of education, of the general conduct of the schools, the course of instruction, the management of teachers, the discipline of pupils, and the management of business affairs * * *»

It is necessary for a teacher applying for a position to file with the superintendent evidence of his educational qualifications as well as a statement showing experience. From this information, the superintendent has the duty of recommending to the board the employment of a teacher to the school for which he is best equipped. It is not for the teacher to pass upon the highly important question of his own qualification.

It is my opinion that when appellant refused to accept a position in the Black Mountain School at the salary provided in his continuing service contract, he had no-right to protest assignment to a position paying less than his contract provided.

I would affirm the judgment.


author: SCOTT REED, Special Commissioner.

text:
    Alice FERRELL, Appellant, v. Dorothy D. HELLEMS, Individually and t/d/b/a Hellems School of Beauty Culture, Appellee.
    Court of Appeals of Kentucky.
    Sept. 23, 1966.
    Rehearing Denied Dec. 16, 1966.

      Benjamin Mazin, Louisville, for appellant.
    J. Walter Clements, G. William Clements, Louisville, for appellee.
   SCOTT REED, Special Commissioner.

In this suit for personal injuries the plaintiff appeals from the action of the trial court in directing a verdict in favor of the defendant at the conclusion of plaintiff’s evidence.

This action was brought by the appellant against the appellee for injuries appellant claims to have sustained as a result of some Coca-Cola cases falling over and hurling bottles on the appellant, one of which broke and cut her foot. These Coca-Cola cases were located on premises controlled and used by the appellee for the operation of a school of beauty culture. At the time of the accident appellant had been a student in this school for a relatively short time.

Since the trial court directed a verdict at the conclusion of the evidence in chief for plaintiff, it is incumbent upon us to review this evidence to determine whether or not the plaintiff made out a prima facie case. In this determination, of course, we must view this evidence in the light most favorable to the plaintiff and give her the benefit of any legitimate inferences which may be drawn from the evidence she presented.

There is actually very little dispute as to what happened on the occasion in question and in our view such factual differences between the parties as were present are not relevant to a proper disposition of the question presented on appeal.

It is admitted that the defendant operated a beauty school on the premises where the accident occurred and was in control of the management and operation of the place where the plaintiff sustained her injuries. It is further established that the plaintiff was a tuition-paying student at this beauty school at the time of her injuries and was in the category of an invitee. According to the plaintiff’s evidence, which consisted of her own testimony together with a pretrial deposition of the defendant and the defendant’s testimony at the trial as if on cross-examination, at about 9:30 A.M. on the day of the accident the delivery truck of a local soft drink retailer delivered cases of bottled drinks’ to the beauty school. As was usual, the truck driver stacked these wooden cases of drinks in a small stockroom immediately adjacent to a locker room, which latter place was used by the some 75 or 80 students enrolled in the school. Considerably later in the day, and at about 3:30 or 4:30 in the afternoon, the defendant sent the plaintiff to a restaurant for some ice. When the plaintiff returned, she found that the defendant was not in her office and was informed that the defendant wanted her in the back of the school. She went to the back of the school and there the defendant requested her to help carry in garbage cans from the outside. Plaintiff and the defendant carried in the garbage cans. After this was done, the defendant stated that they would fill the coke machine. This was a dispensing machine located a considerable distance from the stockroom and apparently was placed somewhere near the front of the school premises. According to the plaintiff, the defendant opened the stockroom and expressed dissatisfaction with the way the delivery truck driver had stacked the cases of drinks. .The defendant then got some paper carrying cartons and filled them up with bottles of soft drink. She took some of these bottles from the floor and some of them out of the stacked cases. The defendant, of course, was in the stockroom for this purpose but the plaintiff stayed out in the locker room and did not enter the stockroom. According to the plaintiff, the defendant told her that they would put these bottles in the dispensing machine and then go back for more until they had filled up the dispensing machine. The plaintiff obeyed the defendant’s request and took the soft drinks which the defendant had given her to the dispensing machine and placed these bottles in it. It seems that about this time the defendant was called to the telephone and left to answer the call. The plaintiff testified that in compliance with the defendant’s request she then returned to the stockroom to secure additional bottles of soft drink for the purpose of filling up the dispensing machine, and when she opened the door of the stockroom to enter it the cases of soft drinks commenced falling, pouring bottles of soft drink over her so that her arms became overloaded in attempts to catch them as they fell and one of the bottles fell and broke, cutting her foot. The plaintiff testified that as she entered the stockroom the cases of soft drinks started rocking, that they were stacked unevenly. She said also that when the cases fell over they were shaking and uneven and that there were soft drinks missing out of the top cases. The defendant testified that the delivery man stacked the soft drink cases, and in reply to a question from the court further testified as follows:

THE COURT: “Was there any opportunity for anybody else to be back there?”
THE WITNESS: “No, sir; nobody would bother with them.”

The trial court in directing a verdict in favor of the defendant stated that there was no definite or positive evidence of negligence on the part of defendant though it was apparent that the cases were stacked improperly. It was the viewpoint of the trial court that there was no indication that any of this improper stacking was done by the defendant or anyone employed by her or anyone with her authorization, from which it would follow logically that the negligence, if any, was on the soft drink people who delivered the drinks. The trial court, with evident reluctance, sustained the defendant’s motion for a directed verdict.

We have further considered the written opinion of the trial court which it entered upon overruling plaintiff’s motion for a new trial. It is evident from this written opinion that the trial court was of the opinion that there had been a failure to show any evidence of negligence on the part of the defendant and that the doctrine of res ipsa loquitur did not apply because the evidence showed that the negligent stacking of the soft drink cases was actually done by the soft drink delivery man.

The parties to this appeal devote substantially all of their respective briefs to an argument concerning the applicability of the doctrine of res ipsa loquitur. The appellant claims that the doctrine applies and the appellee insists it does not. This appears to be a situation where the parties have overlooked the forest of firmly entrenched principles of tort law in their concern over the mystical tree called res ipsa loquitur.

We might describe this doctrine of res ipsa loquitur as the legal counterpart to that field of higher mathematics which is particularly plaguing to college students known as the theory of probabilities.

In the case of Bell & Koch, Inc., v. Stanley, Ky., 375 S.W.2d 696 (1964), we undertook to explain our viewpoint toward the procedural effect of this doctrine and described it as doing no more than recognizing the persuasive force of a particular kind of circumstantial evidence. In that opinion, we said that the characteristics of an event may constitute credible proof of a negligent act or omission, that is to say, from the event or occurrence itself one may reasonably infer the existence of a defect or the failure to observe a duty.

In the instant case, however, we are not relegated to applying the doctrine in its classic and traditional sense. In this case we have positive evidence of the existence of a defective, artificial condition, i. e., unevenly stacked soft drink cases of sufficient height to present a hazard upon their falling and discharging their bottles. We have the added element of a submissible case of negligence in the relationship between the parties. The plaintiff was for all practicable purposes in the category of a business visitor on premises controlled, managed and possessed by the defendant. We have the further undisputed element of either knowledge by the defendant of the artificial defective condition or reasonable opportunity to discover that condition, and we have also her positive testimony that no third party meddled with the cases after they had been stacked.

Plaintiff insists that her case should have been submitted to the jury because the defendant removed some bottles from the cases and thus committed an act of negligence. Defendant insists that no negligence on her part was shown because negligence on the part of the delivery man was shown and because it was further shown that other students in the school had an opportunity to go into the room and change the conditions through no fault of the defendant.

We are of the opinion that none of these contentions reaches the actual problem. In the case of Herring v. Great Atlantic & Pacific Tea Co., 253 F.2d 954 (6 Cir. 1958), relied upon by defendant, the opinion pointed out that there was no proof that the possessor of the premises had notice of the condition or in the exercise of ordinary care could have acquired knowledge of it. The opinion further pointed out that there was positive evidence by an eyewitness that the accident happened due to the fault of the plaintiff. These factors are not present in the instant case. The converse is true. There are defectively stacked cases with knowledge or opportunity for knowledge by the possessor of the premises.

The case of Hicks v. Fontaine Ferry Enterprises, Ky., 247 S.W.2d 493 (1952), relied on by defendant, is easily distinguishable in that no defect was shown in the Hicks case while a defective condition is shown in the instant case.

The parties and the trial court appeared to be of the opinion that if the soft drink delivery man was negligent then that ended the matter. This, of course, is the real error in the case. We pointed out in Wright & Taylor, Inc. v. Smith, Ky., 315 S.W.2d 624 (1958), that the requirement that the instrumentality causing harm be under the management and control of the defendant does not mean, or is not limited to, actual physical control, but refers rather to the right of control at the time of the accident. The Smith case, wherein we made that statement, was an instance of the classic res ipsa loquitur situation as it applied to a possessor of premises. As has been pointed out in the instant case, we need not infer that the defective condition existed. There is positive evidence of its existence.

In the case of Rojo, Inc. v. Drifmeyer, Ky., 357 S.W.2d 33 (1962), we held that the owner or occupant of premises owes a duty to an invitee to use ordinary care to have the premises in a reasonably safe condition. We further held that when an unsafe condition of the premises is caused by a third person, the plaintiff must show that the defendant property owner knew, or with reasonable care could have known, of the unsafe condition in time to prevent the mishap. This view of the law which we took in that case is sustained by the Restatement of Torts 2d, § 344. Thus the fact that the delivery truck driver negligently stacked the cases did not relieve the defendant of her duty to exercise reasonable care as the possessor of these premises toward business visitors on them, particularly at a time when the artificial condition, although created by a third party, was under her control and management and she had knowledge or reasonable opportunity tc discover the defective condition. As stated in Harper and James, The Law of Torts, Vol. 2, § 19.7, p. 1087:

“And even where the person in control of the instrument at the time of injury is sued, the possibility that some predecessor in control or some intermeddler caused the defect may still exist, though it may not be strong enough to destroy the needed inference and in any event it will not help a defendant who had a duty to inspect if the defect was probably discoverable and existed long enough to be found.”

The rule applicable to the instant case is contained in the case of City of Madisonville v. Poole, Ky., 249 S.W.2d 133 (1952), wherein it was said that the owner or possessor of property owes an invitee or business visitor the active, positive duty of keeping those parts of the premises to which the invitee or visitor is invited, or may reasonably be expected to use, in a condition reasonably safe for use in a manner consistent with the purpose of the invitation. If the possessor knows or by the exercise of ordinary care or reasonable diligence could discover a natural or artificial condition which, if known, he should realize involves an unreasonable risk to the invitee or business visitor and does not remedy the condition or serve fair warning of peril, the possessor is negligent. The statement of the rule itself illustrates that the cases relied on by appellee are distinguishable in that they do not present business visitor situations, or they present situations in which a defective condition was not present or in which there was no reasonable opportunity for the party charged with liability to know or discover the peril in time to remedy it or to give adequate warning.

It is our conclusion that the plaintiff’s evidence met the requirements under the rule herein stated and was a sufficient prima facie showing of negligence on the part of the defendant to withstand a motion for directed verdict made on behalf of defendant at the conclusion of the plaintiff’s testimony. This is the only question presented for our disposition. Therefore, we confine ourselves to holding that the defendant’s motion for a directed verdict at the conclusion of the plaintiff’s evidence should have been overruled and that the trial court erred in sustaining the motion.

The judgment is reversed and the cause remanded for further proceedings.


author: DAVIS, Commissioner.

text:
    Glen J. YOUNG, Appellant, v. EASTERN COAL CORPORATION et al., Appellees.
    Court of Appeals of Kentucky.
    Sept. 23, 1966.
    Rehearing Denied Dec. 16, 1966.
    Kelsey E. Friend, Friend & Mullins, Pikeville, for appellant.
    Stuart E. Alexander, Louisville, William J. Baird, Baird & Hays, Pikeville, Robert Matthews, Atty. Gen., Frankfort, for ap-pellee.
   DAVIS, Commissioner.

By this appeal, Glen J. Young seeks to reverse the judgment of the circuit court which affirmed an order of the Workmen’s Compensation Board denying Young’s claim under KRS Chapter 342. Although other questions are presented, the basic issue at bar is whether appellant Young has demonstrated by uncontradicted medical proof that he sustained a work-caused total permanent disability as the result of a heart attack (myocardial infarction).

The medical proof unanimously recognizes that appellant suffered a myocardial infarction on May 6, 1964, while he was engaged in the performance of his duties in the coal mine of his employer, appellee Eastern Coal Corporation. The Board, in its opinion, stated that “[A] 11 of the medical testimony admits that the plaintiff did sustain a myocardial infarction on or about * * * ” May 6, 1964. The Board’s opinion pointed out that appellant would be entitled to prevail, by authority of Terry v. Associated Stone Co., Ky., 334 S.W.2d 926, and Grimes v. Goodlett & Adams, Ky., 345 S.W.2d 47, “ * * * provided there is substantial evidence to indicate that the plaintiff’s activities at work for the defendant caused or brought about or contributed to the myocardial infarction.” However, the Board concluded that appellant had failed to “ * * * prove by persuasive evidence to the satisfaction of the Board that there was any causal connection between the work performed by .him immediately preceding his attack to justify a finding that there was any exertion or strain that precipitated or brought about the myocardial infarction. The medical testimony that the exertion might have, could have, or probably did precipitate the attack is therefore meaningless.”

The appellant concedes that he may not prevail upon this appeal unless his claim is rested upon issues of law or facts not substantially in controversy. He contends that medical testimony adduced in his behalf adequately establishes that the myocardial infarction was work-connected and brought about his total disability — and that there is no evidence to the contrary. In such state of case the Board has no legal basis to deny the claim. Johnson v. Stone, Ky., 357 S.W.2d 844; Grimes v. Goodlett & Adams, Ky., 345 S.W.2d 47. We have concluded that the appellant is correct in this contention and reverse the judgment.

The initial claim for compensation filed by appellant asserted that he was totally and permanently disabled by reason of silicosis, but omitted any reference to any alleged disability due to heart disease. At a hearing before the Board’s Referee on August 25, 1964, appellant testified that he had sustained a heart attack on May 6, 1964, the last day he worked. Thereupon his attorney requested the Referee to permit an amendment of the claim to include the heart attack as a basis of recovery; this matter was referred to the Board, which permitted the amendment. It is apparent that appellant substantially abandoned silicosis-disability as a basis for recovery; he makes no claim here that he is entitled to an award by reason of any silicotic disability.

During the course of a deposition appellant gave before the Referee (prior to the amendment including heart disease as a basis for recovery) appellant was asked to recount his activities while working May 6, 1964. He responded that he had been engaged in his “usual duties.” He recounted that he had “changed a tire on a buggy.” Incident to that task he had been required to exert substantial physical effort, including the lifting of a heavy tire and tightly securing about twelve bolts. At a later date, and after the amended claim had been filed, appellant gave testimony to the effect that he had also repaired a “caterpillar chain” weighing about two hundred fifty pounds. Significantly, Dr. W. F. Clarke had just testified that appellant had given him a history of repairing the heavy chain. The record is silent as to when Dr. Clarke first examined appellant, so it is not discernible from the record whether the history had been reported to Dr. Clarke before or after appellant had first testified and omitted reference to the caterpillar chain incident. At this point it is appropriate to observe that the appellee employer presented evidence from a foreman which tended to contradict appellant’s evidence that he had worked on the chain. The foreman said that he always made a record of any breakdown in this type of equipment, and that his record does not indicate that such activity occurred on May 6, 1964. The same witness pointed out that his records did not disclose that a tire had been changed on a “buggy;” he admitted that a tire could have been changed without his knowing of its being done, but added that this would usually be reported to him later in the shift. It is obvious, we think, that the testimony of this witness is of a negative character — at least as to the “buggy” tire — and is not of such probative quality as to refute the positive evidence offered by appellant. In any event, in our view of the case, the point is not dispositive, particularly in light of the testimony of Dr. Henry W. Post.

Dr. Post, a recognized specialist in cardiovascular diseases, examined appellant at the request of the attorney for appellee, Special Fund. In his report to the attorney, which was read into the record, Dr. Post noted that appellant had related to him that he had “worked hard in the dust all night on the date” of the attack. Dr. Post’s report and his testimony expressed his view that appellant had an underlying coronary atherosclerosis present for many years prior to the “actual acute insult” of May 6, 1964. To employ the words of Dr. Post:

“It would be my feeling that the set of circumstances described by the patient at the time of his attack was a precipitating factor in the acute episode but I would feel that there was significant underlying disease which was not clinically manifest prior to this acute insult.”

In another significant portion of his testimony, Dr. Post related:

“Well, I think that these electrocardiograms substantiate the history given to us and we would certainly assume with this resolution of changes in the electrocardiograms that he did suffer an acute myocardial infarction at the time he stated.”

The doctors who testified agreed, as is seen in nearly all of the cases of this type, that it is possible that the myocardial infarction could have occurred independently of appellant’s work activities. However, no doctor testified that the infarction was not work-connected. In fact, Dr. David A. Perras, a witness for the appellee employer, responded as follows to a question as to what effect the May 6, 1964, infarction had upon appellant’s disability:

“Well, in effect, it is such that what he was doing at the time apparently caused the demand made on the heart to exceed the blood supply and as a result he got a small heart attack out of it. It affected it to this point, to this extent, and marked in his mind the beginning of his heart disease. Whether it was actually caused in the sense he could have had this, this happened or these two events came together at the same time.”

In this state of the record, the present case is ruled by the rationale expressed in Johnson v. Stone, Ky., 357 S.W.2d 844; Grimes v. Goodlett & Adams, Ky., 345 S.W.2d 47; Terry v. Associated Stone Company, Ky., 334 S.W.2d 926. The affirmative evidence for appellant was not overcome by the mere negative statements that the infarction could have occurred independently of the work-activities. The factual situation at bar distinguishes this case from Roberts v. Owensboro Milling Co., Ky., 399 S.W.2d 466 and Kelly Contracting Co. v. Robinson, Ky., 377 S.W.2d 892.

Both Dr. Post and Dr. Clarke gave their medical opinions that the pre-existing atherosclerotic condition contributed half to appellant’s total disability, and ascribed the other half of the disability to the myocardial infarction of May 6, 1964. There was no opposing proof on this point. In view of this evidence and KRS 342.120, the award for total permanent disability shall be apportioned 50% against the ap-pellee employer and 50% against the Special Fund.

The judgment is reversed, with directions to enter a new judgment awarding compensation to appellant for total permanent disability, apportioned half against the appel-lee employer and half against the Special Fund.


author: WADDILL, Commissioner.

text:
    Lee JOSEPH, Appellant, v. BLUE DIAMOND COAL COMPANY and Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    Nov. 11, 1966.
    Lester H. Burns, Jr., Henry E. Hughes, Manchester, for appellant.
    Richard C. Ward, Reeves, Barret & Cooper, Hazard, for appellees.
   WADDILL, Commissioner.

While performing the duties of a brakeman in the mine of appellee, Blue Diamond Coal Company, appellant, Lee Joseph, age 45, sustained an injury to his right hand when it was caught between two mine cars. Joseph sought workmen’s compensation benefits for permanent total disability. The Workmen’s Compensation Board made an award to Joseph based on its finding of 5% permanent disability. He appealed to the Perry Circuit Court which upheld the award.

Joseph appeals to this court contending that under the evidence the board and the circuit court erred in not finding him totally and permanently disabled. In support of this contention he claims he is unable to perform the duty of coupling cars as is required of a brakeman. To obtain the relief sought on this appeal Joseph must convince us that the evidence before the board was so conclusive that it required a finding of permanent total disability. McDowell Memorial Hospital v. McCoy, Ky., 407 S.W.2d 717 (decided October 28, 1966).

Dr. Carl Friesen, an orthopedic surgeon who attended Joseph for about nine months, testified he had treated the injury to Joseph’s right hand and had partially fused his right ring finger. After receiving physical therapy the fingers of Joseph’s right hand can oppose his palm except his ring finger which misses it by a half-inch. Dr. Friesen stated that due to his injury Joseph has a 5% functional disability and that his injury would not prevent him from performing his employment duties.

Dr. Philip Begley, a general practitioner, examined Joseph on one occasion. He estimated that Joseph has 40 to 50% functional disability and is totally disabled to perform the duties of a brakeman. Certain lay witnesses, in effect, concurred in the estimate of total disability.

Appellant would have us discount Dr. Friesen’s testimony for lack of familiarity with the duties of a brakeman. The record shows that Dr. Friesen had been apprised of Joseph’s employment duties and how they were performed while Dr. Begley was not asked nor did he claim any familiarity with such duties. Even if Dr. Beg-ley were better informed on this matter than Dr. Friesen this fact would only affect the credibility of the testimony. Hence if we accepted appellant’s contention in this respect it would be unavailing since the weighing of evidence is traditionally and properly a function for the fact finder. Congleton Brothers v. Farmer, Ky., 399 S.W.2d 722; Kilgore v. Goose Creek Coal Co., Ky., 392 S.W.2d 78.

Appellant contends that by implication the board found that Joseph was wholly unable to perform the duties of a brakeman and, therefore, an award based upon only 5% disability is inconsistent with that finding. We quote the statement from the board’s opinion upon which appellant relies :

“ * * * The plaintiff in this case is a coal miner; being a ‘coupler’ is only one of numerous jobs inside a coal mine. There is no indication that the plaintiff could not perform the duties of a motorman, coal loader, machine man, or normal jobs in the mine. The plaintiff is clearly not totally disabled, even within the liberal concept of total disability * *

As we construe this language it is merely an affirmative observation that Joseph can perform most of the employment tasks of coal miner; it has no relevance to what he cannot do. While there are cases in which we have upheld awards for total permanent occupational disability even though there was less than total functional disability. (Leep v. Kentucky State Police, Ky., 366 S.W.2d 729 and Methodist Hospital of Kentucky v. Ratliff, Ky., 391 S.W.2d 676) the parties have not cited any case holding that a compensation claimant is totally and permanently disabled because the injury he sustained prevented him from doing a particular act in his general employment classification. We do not believe Joseph was entitled to the narrow employment classification of brakeman, but rather the general occupational classification of a coal miner. Everidge v. Nickells Coal Co., Ky., 394 S.W.2d 449. Assuming he cannot be employed as a brakeman, there is no evidence that he is unable to perform other comparable duties as a coal miner. Appellant’s sole claim to permanent total disability is the impairment of his right hand. Consequently we believe it would be completely contrary to the intent and purposes of the Workmen’s Compensation Act for us to say as a matter of law that appellant is permanently and totally disabled as a coal miner.

The judgment is affirmed.


author: CULLEN, Commissioner.

text:
    John W. WINGO, Warden, Kentucky State Penitentiary, Appellant, v. Charles E. RINGO, Appellee.
    Court of Appeals of Kentucky.
    Nov. 11, 1966.
    Robert Matthews, Atty. Gen., Joseph H. Eckert, Asst. Atty. Gen., Frankfort, for appellant.
    Charles E. Ringo, pro se.
   CULLEN, Commissioner.

Appellee Charles E. Ringo, serving two consecutive life sentences in the state penitentiary in Lyon County pursuant to a 1964 judgment of the Jefferson Circuit Court, instituted habeas corpus proceedings in the Lyon Circuit Court seeking release from confinement on the ground that in his conviction and sentencing there was a violation of due process. The Lyon Circuit Court found merit in the ground and entered judgment holding the 1964 conviction invalid. The warden of the penitentiary has appealed.

The indictment under which Ringo was tried charged (1) armed assault with intent to rob (punishable with 21 years, life or death); (2) storehouse breaking (1 to 5 years) ; and (3) three previous felony convictions (life, when coupled with a current conviction). The instructions authorized the jury to impose the specific penalties for the two current offenses charged, or, as to each of such offenses, if the jury found the defendant guilty on the specific count of that offense and on the count of previous convictions, to impose a life sentence. The jury found Ringo guilty on the armed assault count and fixed his punishment at life imprisonment; also they found him guilty on the storehouse-breaking count and on the count of previous convictions, and fixed his punishment on those combined counts at life imprisonment. The court in entering judgment directed that the two sentences be served consecutively.

The Lyon Circuit Court found that there was a violation of due process in the way the habitual criminal law was applied on Ringo’s trial. We do not agree.

The habitual criminal statute, KRS 431.190, simply means that when a person has (progressively) committed .and been convicted of two or more felonies, thereafter, as to him, the minimum penalty for any felony he commits is life imprisonment (if the jury finds the fact of the previous convictions). McIntyre v. Commonwealth, 154 Ky. 149, 156 S.W. 1058; Allen v. Commonwealth, 272 Ky. 533, 114 S.W.2d 757; Coleman v. Commonwealth, 276 Ky. 802, 125 S.W.2d 728; Harrod v. Whaley, Ky., 239 S.W.2d 480. This being so, Ringo’s position was the same as if he were being tried for two current offenses each of which carried a possible penalty of life imprisonment. Imposing a life sentence on each charge in the latter situation would be perfectly proper, and so also in Ringo’s actual situation. Clearly, had he not been charged as an habitual criminal, the jury could have given him a life sentence on the armed assault charge and a five-year sentence on the storehouse-breaking charge. The habitual criminal charge merely had the effect of adding life imprisonment to the group of possible penalties for the storehouse-breaking offense,

The fallacy in the opinion of the Lyon Circuit Court lies in its conclusion that only as to one subsequent felony can the punishment be enhanced by reason of previous felony convictions. Our cases make it clear that the enhancement validly is applicable to every subsequent felony. McIntyre v. Commonwealth, 154 Ky. 149, 156 S.W. 1058; Harrod v. Whaley, Ky., 239 S.W.2d 480.

Properly, the Lyon Circuit Court should not have entertained Ringo’s habeas corpus petition because there was no showing of inadequacy of the remedy provided by RCr 11.42. See Ayers v. Davis, Ky., 377 S.W.2d 154. A further ground for denying post-conviction relief would have been that Ringo, in a previous proceeding under RCr 11.42, had raised issues (which were decided against him) concerning the use of the habitual criminal statute on his trial. See Tipton v. Commonwealth, Ky., 398 S.W.2d 493; Walker v. Wingo, Ky., 398 S.W.2d 885. We have considered it appropriate, however, for us to rule on the merits of Ringo’s asserted ground for relief.

The judgment is reversed with directions to enter judgment denying the petition for release from confinement.


text:
    CITY OF ST. MATTHEWS, Appellant, v. John D. MORROW et al., Appellees.
    Court of Appeals of Kentucky.
    Sept. 23, 1966.
    Rehearing Denied Dec. 16, 1966.
    J. W. Jones, Louisville, for appellant.
    Joseph B. Helm, Helm, Eddleman, Flan-ery & Jay, E. P. Sawyer, William H. Walden, Louisville, for appellees.
   JOSEPH J. BRADLEY, Special Commissioner.

Appellant, City of St. Matthews, by ordinance enacted in July, 1963 proposed to annex an adjacent area of unincorporated territory. Appellant filed its petition in the circuit court as authorized by KRS 81.210 for judgment annexing that territory. The residents and freeholders of the area duly protested the proposed annexation. The action was later dismissed on the protestants’ motion for summary judgment because the boundary line was inaccurately defined. The city objected and undertook an appeal from the judgment which was subsequently dismissed on motion of the city.

In January, 1964 appellant again enacted an ordinance designed to annex the identical territory. The same procedural steps were pursued by the parties with the result that the second action was dismissed on the basis that it was barred by KRS 81.270(1) which provides that if a judgment of the circuit court is adverse to annexation no further attempt to annex the territory concerned shall be made within two years after the rendition of the judgment.

Appellant primarily contends that the court’s dismissal of the original action to annex did not constitute an adverse judgment within the meaning of the statute as there was no adjudication of the merits of the case. In Overstreet v. City of Louisville, 310 Ky. 1, 219 S.W.2d 405, during the pendency of an annexation suit a judgment was entered that the area be not annexed. Within two years another ordinance was passed proposing to annex the same area, exclusive of a portion which in the interim had been incorporated as a township. In a suit protesting that annexation it was held that the first judgment was a bar. There, the judgment was predicated on issues other than those going to the merits of the case.

In similar context is Engle v. City of Louisville, 312 Ky. 383, 227 S.W.2d 407, in which it was held that a second annexation proceeding initiated within the statutory period was barred by a previous judgment. It is to be noted that the first action was not determined on its merits. In reaffirming its decision in the Overstreet case, the court observed:

“ * * * It appears in that case [reference is to Overstreet] as it does in this one, that there had not been a trial on the merits. Nevertheless, there was a judgment adverse to annexation, and it was an effectual bar for the period of two years.”

Manifestly, to render effective an adverse judgment, as the term is employed in the statute, it is not necessary that a remonstrance suit be determined on its merits.

Appellant cites, in support of its position, City of Louisville v. Crescent Hill, Ky., 52 S.W. 1054 and Buchanan v. City of Dayton, Ky., 363 S.W.2d 92. These decisions are not considered controlling here. In the Overstreet case we distinguished it from Crescent Hill. The Crescent Hill case involved an annexation ordinance which was repealed before the remonstrance suit was set for trial. We held that this action of the city, in repealing the ordinance, did not prevent the annexation of the area in question as there was no annexation proposition in force for the court to pass on. In the Buchanan case it was said that the city’s dismissal of a remonstrance suit without prejudice was not an adverse judgment.

Appellant also contends that the dismissal of the action because of the inaccuracy of the description merely reflected the court’s lack of jurisdiction and that the same did not constitute an adverse judgment. This seems to be a distinction without a difference in contentions. In the Overstreet case it was said that the statute means what it says; namely, if a judgment is adverse to annexation, no further attempt to annex the same territory shall be made within two years. We hold that the judgment entered in 1963 was an adverse judgment within the meaning of the statute.

The judgment is affirmed.


text:
    William C. FYFFE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 11, 1966.

      William C. Fyffe, pro se.
    Robert Matthews, Atty. Gen., H. N. Mc-Tyeire, Asst. Atty. Gen., Frankfort, for appellee.
   DAVIS, Commissioner.

The appellant made motion to vacate the sentence upon which he is now incarcerated at Eddyville. RCr 11.42. The motion was denied without an evidentiary hearing, and appellant prosecutes this appeal seeking a reversal of the order denying the relief sought.

In his motion to vacate the appellant asserted that he had been denied effective assistance of counsel because his court-appointed attorney had been so appointed only an hour and a half before the trial. However, the record before us reflects that the trial court had appointed counsel for appellant some eight days prior to his trial at which he was convicted. The record also reflects that appellant entered a plea of guilty at the original trial, and made no motion for a continuance in order to confer longer with his counsel or obtain witnesses in his behalf. Upon the authority of Hargrove v. Commonwealth, Ky., 396 S.W.2d 75, and the cases cited therein, it is plain that the appellant has not demonstrated any ground for relief under RCr 11.42, as respects his allegation that his attorney was appointed so shortly before trial time.

In his motion to vacate the appellant made a vaporous allegation to the effect that he had been held incommunicado in jail, “ * * * and when the sought after information was revealed this petitioner was allowed to communicate.” It is patent that such an allegation fails to state any fact entitling the petitioner to an evidentiary hearing. The only inference deducible from the allegation is that appellant was allowed to communicate, albeit belatedly. He does not suggest in what manner his defense was thus prejudiced.

The judgment is affirmed.


author: DICE, Commissioner.

text:
    Eugene CARTER, Appellant, v. The STATE of Texas, Appellee.
    No. 39828.
    Court of Criminal Appeals of Texas.
    Nov. 2, 1966.
    Rehearing Denied Dec. 7, 1966.

      J. Harlan Fleming, Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., Grady Hight, Asst. Dist. Atty., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Commissioner.

The offense is theft from the person; the punishment, enhanced under Art. 63, Vernon’s Ann.P.C., by reason of two prior convictions for felonies less than capital alleged for enhancement, life imprisonment.

Trial was on November 18, 1965, and notice of appeal was given to this court on March 7, 1966.

Notice of appeal having been given after January 1, 1966, the preparation of the record on appeal is governed by the 1965 Code of Criminal Procedure. Ross v. State, Tex.Cr.App., 403 S.W.2d 138.

The record on appeal consists of a transcript of the proceeding in the cause certified to by the clerk, and a separate statement of facts of the evidence adduced upon the trial bearing the certificate of the official court reporter and approved by counsel for the state and the appellant and also approved by the trial court.

Such record is not in compliance with the requirements of Art. 40.09 of the 1965 Code that it be assembled under one cover and be approved by the trial court.

No brief is shown to have been filed by the appellant in the trial court pointing out the grounds of which he desired to complain on appeal, as required by Sec. 9 of Art. 40.09, supra.

While no grounds of error are presented by appellant for review, we shall consider as unassigned error — under Sec. 13 of Art. 40.09, supra — two contentions urged in his brief filed in this court which are of constitutional dimension.

The first contention is that the court erred in overruling appellant’s motion to quash the indictment, on the ground that reading to the jury the allegations of the two prior convictions deprived him of due process of law as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the Constitution of the United States.

A similar contention has been by this court rejected in Crocker v. State, Tex.Cr.App., 385 S.W.2d 392, and the many cases there cited. See, also: Breen v. Beto, Fifth Circuit of Appeals, 341 F.2d 96; Stephens v. State, Tex.Cr.App., 377 S.W.2d 189 (cited in Crocker, supra), Ex parte Stephens, Tex.Cr.App., 388 S.W.2d 199, cert. denied, Stephens v. Texas, 380 U.S. 980, 85 S.Ct. 1344, 14 L.Ed.2d 274.

The other contention is that the introduction in evidence of appellant’s written confession, over objection, constituted a denial of due process because he was not granted the right to have counsel present before making and signing the same. In support of his contention appellant relies upon a statement in his confession introduced in evidence by the state, which reads: “I have been advised that I may call counsel if I wish and have chosen to do so,” and upon the testimony adduced at the trial to the effect that he did not have counsel present when he made the confession.

Appellant concedes that the decision in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, has no application to his trial which began on November 18, 1965, but insists that the facts in the instant case go much further than those in Miranda and show that he was denied the right to consult with counsel prior to making the confession.

Appellant did not testify at the trial.

Officer J. B. Walls, to whom the confession was made, testified as follows:

“Q Was it you, or some other offi-“ cer, that advised him to get a lawyer? A I believe it was J. D. Roberts and myself, both; and I believe that Jack Bennett had also so advised him earlier.
“MR. FLEMING: Your Honor, we object to what he believes.
“THE COURT: Well, we don’t want any speculation, Officer.. You either know it or your don’t. A I know that I advised him that he could have a lawyer, and I know that Roberts did.
“Q (BY MR. GOODNIGHT) You know that Roberts did? A Yes sir.
“Q Did the Defendant, at the time you took his statement, tell you that he had talked to a lawyer? A He said that he had called one; yes.
“Q Did he ask that that lawyer be present during the taking of the statement? A No sir.
⅜ ⅝ ⅜*' ⅜ ⅜ ⅜
“Q Now, it says down here: (Reading) T have been advised that I may call counsel if I wish and have' chosen to do so.’ * * * Now, did you tell him that, that he could call counsel? A Yes sir.. I told him that he had the right to call counsel, and the right to contact a lawyer.
“Q. And he states here, that he chose to do so? A Yes sir.
“Q Did you allow him to call an attorney? A In lieu of this, he stated that he had already contacted his lawyer.
“Q At the time he told you he would like to call his attorney, did you allow him to call? A No sir.. He said he already had..
* * * * * *
“Q And this is part of his statement here: (Reading) T have been advised that I may call counsel if I wish and have chosen to do so.’ * * * j)0 y0U remember him saying that? A Yes sir.
“Q But there were no arrangements made for an attorney? A Not at that particular time.
“Q Even though he said he wanted to? A He also said that he had already contacted his lawyer..”

The record does not sustain appellant’s contention that he was denied the right to consult with counsel prior to making the confession. The contention is overruled.

It should be noted that appellant’s confession was made, signed, and introduced in evidence prior to January 1, 1966, and therefore was governed by the provisions of Art. 727 of the 1925 Code of Criminal Procedure rather than Art. 38.22 of the present 1965 Code. It was not necessary that appellant be immediately taken before a magistrate and receive the warning provided by Art. 15.17 of the 1965 Code before making the confession.

It is also observed that before admitting the confession in evidence, the trial court conducted a hearing in the absence of the jury and made an independent finding, duly entered of record, that the confesson was voluntary and made after due warning, and that appellant was not denied any of his constitutional rights under the laws of this State or of the United States. The court’s action was in compliance with the procedure prescribed in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, and Lopez v. State, Tex.Cr.App., 384 S.W.2d 345.

The judgment entered by the court and sentence pronounced thereon find appellant guilty of the offense of robbery. The same are hereby reformed so as to show that he was adjudged guilty of the offense of theft from the person, a felony, as charged in the indictment and found by the jury.

As reformed, the judgment is affirmed.

Opinion approved by the court.


text:
    O. D. FLEMING, Appellant, v. The STATE of Texas, Appellee.
    No. 39448.
    Court of Criminal Appeals of Texas.
    Nov. 23, 1966.
    Benton Musslewhite, of Musslewhite & Musslewhite, Lufkin, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Commissioner.

The conviction is for unlawfully selling whisky in a dry area; the punishment, a fine of $200.

Trial was had and notice of appeal given prior to January 1, 1966.

Our able state’s attorney does not seek an affirmance of the conviction, because the state failed to prove that appellant made the sale of whisky m Cherokee County, a dry area.

The record reflects that while it was stipulated that Cherokee County was a dry area, the state’s proof failed to show that appellant sold the whisky in Cherokee County.

In violations of laws adopted by local option elections, the locus of the offense is an integral part of the proof. Teal v. State, 159 Tex.Cr.R. 289, 263 S.W.2d 260; Warren v. State, 164 Tex.Cr.R. 544, 300 S.W.2d 953.

The judgment is reversed and the cause is remanded.

Opinion approved by the Court.


text:
    Lawrence W. THRASH, Appellant, v. The STATE of Texas, Appellee.
    No. 39906.
    Court of Criminal Appeals of Texas.
    Nov. 23, 1966.
    No attorney on appeal for appellant.
    Henry Wade, Dist. Atty., W. John Allison, Jr., Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Commissioner.

Appellant was convicted, upon his plea of guilty and waiver of a jury, of the offense of burglary and his punishment was assessed at confinement in the penitentiary for five years.

Trial was had and notice of appeal was given on April 8, 1966.

The record contains no statement of facts and no bills of exception. No motion to withdraw the notice of appeal was filed by appellant in the trial court and no appellate brief is shown to have been filed with the clerk of the trial court.

The sentence pronounced by the court orders that appellant be confined in the Texas Department of Corrections for “not less than 1 day nor more than 5 years.”

The minimum punishment for burglary being two years (Art. 1397, Vernon’s Ann. P.C.), the sentence is reformed so as to give application to the indeterminate sentence law (Art. 42.09 of the 1965 Code) and provide that appellant be confined in the Department of Corrections for “not less than two years nor more than five years.”

As reformed, the judgment is affirmed.

Opinion approved by the Court.


author: BELCHER, Judge.

text:
    Ex parte Charles DOWDEN.
    No. 39928.
    Court of Criminal Appeals of Texas.
    Nov. 23, 1966.
    Charles Dowden, pro se.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

The relator in a habeas corpus proceedings attacks the validity of his fifty year sentence for robbery by assault.

It is undisputed that on the same day that an attorney was appointed by the trial court to represent the relator Dowden as provided by Art. 494, Vernon’s Ann. C.C.P. (now Art. 26.04 C.C.P.), the relator entered a plea of guilty in Cause No. 5676, in the District Court of Orange County, Texas, and the court proceeded to hear and render its decision, and also on that day pronounced sentence against him.

Art. 494, supra, in effect at the time of this conviction, reads in part as follows:

“Whenever it is made known to the court at an arraignment or any other time that an accused charged with a felony is too poor to employ a counsel, the court shall appoint one (1) or more practicing attorneys to defend him.
“The counsel so appointed shall have ten (10) days to prepare for trial, unless such time be waived in writing by said attorneys and the accused.”

It is made to appear that no written waiver of the ten days allowed counsel to prepare for trial was executed by the appointed counsel and the accused.

The provisions of Art. 494, supra, are mandatory and applicable to the facts shown by the record in this cause. Ex parte Gudel, Tex.Cr.App., 368 S.W.2d 775.

From the record it is evident that this conviction cannot stand.

The writ is granted and it is ordered that the relator be released from his present custody, and that he be delivered to the custody of the sheriff of Orange County, Texas, to answer the indictment in said Cause No. 5676, in the District Court of Orange County.

Opinion approved by the Court.


author: BELCHER, Commissioner.

text:
    J. L. GILBREATH, Appellant, v. The STATE of Texas, Appellee.
    No. 39869.
    Court of Criminal Appeals of Texas.
    Nov. 23, 1966.
    Sheridan E. Taylor, Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., Charles D. Butts and R. J. Adcock, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Commissioner.

The conviction is for felony theft of an automobile and for a like offense alleged for enhancement, and the punishment was assessed at ten years.

Notice of appeal was given on March 9, 1966.

In his brief timely filed in the trial court, the appellant assigned as error the refusal of the trial court to permit Officer Hut-chions to testify before the jury on cross-examination about the statements made by the appellant at the scene of arrest when he was first questioned by Hutchions concerning his possession of the recently stolen pickup.

The state called only two witnesses: the owner of the automobile, J. H. Worth-ington, and Officer Hutchions, who apprehended the appellant while driving the pickup. The appellant did not testify or offer any evidence in his behalf.

Worthington testified that he left a pickup which he owned on a parking lot at 5:30 p.m., June 29, 1965; that it was then of the market value of $1,200; that he never gave the appellant or any other person his consent to take and remove the pickup from the parking lot, and next saw it at the police station about 2:30 a.m., June 30, after notice from the officers; that he did not know the appellant and first saw him the day before the trial.

Officer Hutchions testified that about 1 a.m., June 30, 1965, he saw the appellant seated under the steering wheel of a pickup parked at the curb, and two other men were in the cab; that he followed the pickup as it was driven away but it soon stopped and another man got in the cab, and on following further he stopped it for a traffic violation, the patrol car stopping about ten feet to the rear of the pickup; that the appellant was driving the pickup, and on being then asked about his driver’s license only, the appellant said he had none hut exhibited an instrument showing a safety responsibility suspension; that he then placed the appellant in the patrol car and returned to the pickup to check out the other three occupants, and while talking with them noticed by the aid of his flash-' light that the ignition key was missing yet the motor was running and the lights were on; that he opened the driver’s door of the pickup and on investigation found that the ignition had been “wired around”; and that it took fifteen minutes or a little longer to check out the pickup, its ignition, and the three men in it, during which time the appellant was sitting in the patrol car.

In the absence of the jury, the appellant cross-examined Officer Hutchions about statements made to him by the appellant at the time he returned to the pickup concerning how appellant became the driver of the pickup.

The state’s objection to said testimony had been sustained; and the appellant introduced the testimony of Hutchions in perfecting his bill of exception.

In the absence of the jury, Officer Hut-chions testified in part as follows:

“Q When you talked to Mr. Gilbreath (appellant), that was the first time you had talked to him subsequent to the time you had stopped him, isn’t that right?
“A Yes, sir, it is.
“Q And during that discussion or questioning of him, after you had talked to the other occupaiws, was the first time that you had talked to him is that correct ?
“A Outside of talking to him about the driver’s license, yes, sir.
“Q All right, outside of talking to him about the driver’s license ?
“A Yes, sir.
“Q This was the first time you talked to him after you discovered that there was a wiring — that the thing had been wired around the ignition switch, is that right?
' “A Yes, sir, it is.
“Q And you went back to your car, to the patrol car, and got in and commenced a discussion with Gilbreath?
“A Yes, sir, I did.
“Q And then it was that you asked him for the first time how he happened to be the driver of that automobile, is that correct?
“A Yes, sir, it is.
“Q And didn’t he tell you then that Smith had asked him to drive the car for him ?
“A Yes, sir, he did.
“Q And Smith was one of the other occupants of the automobile, is that not correct?
“A Yes, sir, it is.
“Q Just to clarify the record, Officer Hutchions, I asked you about a man by the name of Smith, and a man by the name of Smith was the white occupant of this vehicle also, was he not?
“A He was the other white occupant of it, yes, sir.
“Q Now, officer, how do you know it was fifteen minutes or more ?
“A From the time I stopped, sir, the dispatcher told me what time it was, and the time I took him into custody and actually placed him under arrest, was over seventeen minutes, sir.
“The Court: Mr. Bailey, since we are out of the presence of the jury, I remember very well what he said. He said the ten to fifteen minutes and then he said it was more than, that it was fifteen minutes or more. I remember very well what he said.”

The appellant offered in evidence the foregoing testimony of Officer Hutchions on the ground that it was an explanation made by him at the time his possession of the pickup was first questioned, and to support his plea of not guilty of the theft of the pickup.

To the trial court’s refusal to admit said proffered testimony before the jury, the appellant duly and timely excepted.

There is no direct evidence showing who took the pickup from the parking lot. The state relies solely upon circumstantial evidence to support the conviction.

55 Tex.Jur.2d 490, Sec. 221, reads:

“The defendant’s statements or declarations explanatory of his possession made when his right to the property was first questioned are admissible in his favor or against him, and may be considered by the jury in determining his guilt or innocence. Thus his declarations and statements that show the character of his possession and his intent with regard thereto, or which tend to show a taking on a claim of right or an open assertion of right, are admissible in his favor, though not strictly within the rule of res gestae.”

The accused’s explanation of his possession of property supposed to have been recently stolen is admissible as original evidence in his behalf, if made at the time his possession was first directly or circumstantially challenged, or when charged with the theft. 5 Branch 2d 98, Sec. 2651; Hodge v. State, 41 Tex.Cr.R. 229, 53 S.W. 862; Johnson v. State, 165 Tex.Cr.R. 468, 308 S.W.2d 869.

It is concluded that the proffered testimony of Officer Hutchions was admissible and should have been admitted in evidence before the jury, and that the trial court erred in excluding it.

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

Opinion approved by the court.


author: McDonald, judge.

text:
    Weldon Preston GREESON, Appellant, v. The STATE of Texas, Appellee.
    No. 39882.
    Court of Criminal Appeals of Texas.
    Nov. 23, 1966.

      Robert E. White, John Y. Cassell, Dallas, for appellant.
    Henry Wade, Dist. Atty., Malcolm Dade, James H. Miller and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

McDonald, judge.

The offense is burglary; the punishment, ten (10) years confinement in the Texas Department of Corrections.

Notice of appeal was given December 17, 1965.

The record reflects that at about 10:30 p. m. on the night of March 30, 1965, as officers Metcalf and McConnell of the Dallas Police Department were driving on South Beckley Street, they noticed two men standing outside the front of a warehouse. One of the men had his hands on a dolly which was supporting an air-conditioning unit. This man was wearing a dark green fatigue jacket and fatigue cap. As the police car passed the warehouse the officers noticed that the men were watching them. As the officers turned their car around to have another look, the two men “broke and ran.” Officer Metcalf leaped from the moving car and began pursuing the' man who was wearing the dark green fatigues. After much running and dodging through streets and alleys the pursued man ran in back of a Seven-Eleven store. At this point he saw Officer McConnell in front of the store talking to another man. He stopped running, turned to Officer Metcalf who was right behind him, and said, “Okay, you’ve caught me.” This man in the green fatigues was the appellant, Weldon Greeson. Mr. Walker, the owner of the warehouse on 2105 South Beckley Street, testified that around 6:00 p. m. on the evening in question he had locked his warehouse after a final check of all the items contained in it. After the appellant had been apprehended Mr. Walker went to the warehouse and identified the air-conditioner as one belonging to him. He also stated that the unit had been inside the warehouse when he locked the door. It was established that the warehouse had been entered after a bar attached to the lock had been removed from the door.

There was no testimony on behalf of appellant.

Appellant complains that neither the charge, indictment, nor the evidence specifies the building allegedly burglarized with a particularity sufficient to meet the requirements of “proof of guilt beyond a reasonable doubt.” It is well established that it is not necessary to allege any further description of the building, structure, or house alleged to have been burglarized other than to allege in the language of the statute that it was a “house.” The indictment in the present case which charges in the language of the statute the burglary of a “house” occupied and controlled by the injured party is a sufficient description of the burglarized building. Thomas v. State, 168 Tex.Cr.R. 544, 330 S.W.2d 201.

Appellant also contends that the trial court erred in failing to charge the jury relative to circumstantial evidence. The record reflects that there was no objection to the court’s charge or any mention of circumstantial evidence until appellant’s amended motion for new trial. The defendant is required to present his objections to the charge in writing before it is read to the jury. Howell v. State, 171 Tex.Cr.R. 545, 352 S.W.2d 110.

We have carefully considered appellant’s remaining contentions and find no error reflected by any of them.

The judgment is affirmed.


author: SHARPE, Justice.

text:
    ALAMO CANDY COMPANY, Appellant, v. Hertha ZACHARIAS, Appellee.
    No. 225.
    Court of Civil Appeals of Texas. Corpus Christi.
    Oct. 27, 1966.
    William G. Brown, San Antonio, for appellant.
    Armond G. Schwartz, Hallettsville, Henry S. Paulus, Yoakum, for appellee.
   OPINION

SHARPE, Justice.

This appeal is from a judgment permanently enjoining appellant from levying upon, selling or interfering with the interest of appellee in certain real property situated in the City of Yoakum, DeWitt County, Texas.

By two points, appellant asserts that the trial court erred (1) because there was no evidence to support the judgment granting a permanent injunction in favor of appellee, and (2) in concluding that appellee’s community interest in the real property sought to be sold under execution was not subject to forced sale by virtue of a valid judgment theretofore rendered in favor of appellant.

By two counter-points, appellee asserts that the trial court did not err nor abuse its -discretion because (1) the prior judgment was against Hertha Zacharias in her capacity as Independent Executrix of the Estate of Fritz Zacharias, Jr., and not against her individually, and (2) appellee’s interest in the real property sought to be sold under execution is not subject to forced sale in that there is no judgment against her individually.

Appellee, Hertha Zacharias, a widow, as plaintiff, on October 25, 1965 brought the instant suit against Alamo Candy Company -and the Sheriff of DeWitt County, Texas, for injunction prohibiting a levy upon and sale of Lot No. Nine (9) and the east one-half (1/2) of Lot No. Ten (10) in Block No. •69 of the original townsite of the City of Yoakum, DeWitt County, Texas. Appellee alleged in substance that judgment had theretofore been rendered in cause No. 10,238 by the District Court of DeWitt ■County, Texas, in favor of Alamo Candy Company against Hertha Zacharias, as In•dependent Executrix of the Estate of Fritz Zacharias, Deceased, and that Alamo Can•dy Company had caused the Sheriff to levy execution under that judgment on the : above-described property and give notice of sale of same on Tuesday, November 2, 1965; that at the prior trial it was held that Hertha Zacharias, individually, was not responsible nor liable for the indebtedness sued on and that the same was a charge against the estate of Fritz Zacharias, Jr., ■only; that there was a mortgage against .¡said property in favor of a third party “lending institution, and that its interest as well as that of appellee in the property was sought to be sold under the unconditional, unrestricted levy which had been made; that irreparable injury would result to ap-pellee because of an unlawful levy and threatened sale. Appellee prayed that the prior judgment be declared ineffective as to appellee’s interest in the property and the sale under execution be permanently enjoined to that extent, and that appellee’s community interest in the property be quieted.

The trial court, on October 25, 1965, issued a temporary restraining order prohibiting the scheduled sale of the property on November 2, 1965, and set a hearing on appellee’s application for temporary injunction on November 22, 1965. Appellant did not file any answer in the case, but appeared through Counsel on the last-mentioned date and announced ready for trial on the merits. After a brief hearing the trial court pronounced judgment granting a permanent injunction in favor of ap-pellee prohibiting Alamo from levying upon or selling or interfering with the interest of appellee, described as a community one-half interest in the said property. Written judgment granting that relief was entered on November 29, 1965.

On the trial of the case the only evidence offered was the testimony of appellee and two exhibits. One exhibit was a certified copy of a warranty deed dated January 9, 1956, conveying the property in question to F. J. Zacharias and wife Hertha Zacharias. The other exhibit was a certified copy of the judgment entered on January 29, 1963 in cause No. 10,238 in the District Court of DeWitt County, Texas, awarding Alamo Candy Company as plaintiff a judgment in the amount of $4,465.46 against the defendant Hertha Zacharias, Independent Executrix of the Estate of Fritz Zacharias, deceased.

Appellant’s position is that the prior judgment upon which execution was levied is based upon a debt of Fritz Zacharias, Jr., valid and enforcible at the time of his death and thereafter against appellee as executrix and the community estate of appellee and her deceased husband. Appellee does not dispute the rule that the wife’s portion of the community property may be subject to the indebtedness of such community contracted by the husband but says that before such rights can be enforced, proceedings of a proper nature must be instituted and a judgment affecting such interest must be obtained. More specifically, ap-pellee contends that because appellant did not make appellee individually a party in the prior suit, it has waived its rights to collect the alleged community indebtedness from the widow’s portion of the property after death of the husband and probate of his will.

The well settled rule is that community property of the husband and wife is subject to the payment of debts contracted by either of them during the marriage, except when otherwise specially provided by law. Art. 4620, Vernon’s Ann. Civ.St.; Stone v. Jackson, 109 Tex. 385, 210 S.W. 953 (1919); United States v. Stapf, 375 U.S. 118, 84 S.Ct. 248, 11 L.Ed.2d 195. Community property is the primary fund for the payment of community debts. Clark v. First Nat. Bank, 210 S.W. 677 (Tex.Com.App.1919). The community estate passes charged with the debts against it. Sections 45, 155 and 156, Probate Code, V.A.C.S.

Section 145, Probate Code, provides for the creation by will of an independent administration. Sections 146 and 147, Probate Code, provide as follows:

“§ 146. Payment of Claims and Delivery of Exemptions and Allowances
An independent executor, in his administration of an estate, although free from the control of the court, shall nevertheless, independently of and without application to, or any action in or by the court, receive presentation of and classify, allow, and pay, or reject, claims against the estate in the same order of priority, classification, and proration prescribed in this Code, and set aside and deliver to those entitled thereto exempt property and allowances for support, and in lieu of homestead, as prescribed in this Code, to the same extent and result as if his actions had been accomplished in, and under orders of, the court. As amended Acts 1957, 55th Leg., p. 53, ch. 31, § 2 (c).
“§ 147. Enforcement of Claims by Suit
Any person having a debt or claim against the estate may enforce the payment of the same by suit against the independent executor; and, when judgment is recovered against the independent executor, the execution shall run against the estate of the testator in the hands of the independent executor which is subject to such debt. The independent executor shall not be required to plead to any suit brought against him for money until after one year from the date of the probate of the will appointing him. Acts 1955, 54th Leg., p. 88, ch. 55.”

Appellee, the wife and now the surviving widow of Fritz Zacharias, deceased, was not individually liable for the' debt in question and it was not necessary to make her a party individually to the original suit. However, the community property remaining in her hands after proper exemptions and allowances, was subject to the payment of community debts, including those established by suit after the husband’s death, subject to the order of priority, classification and proration prescribed by the Probate Code. See Chanowsky v. Friedman, 219 S.W.2d 501 (Tex.Civ.App.1949, wr. ref. n. r. e.) decided under Art. 3437, the predecessor statute of Sec. 147, Probate Code.

Disposition of this case does not turn upon the individual liability of ap-pellee for appellant’s debt or whether she was a party to the original suit, but, instead, upon whether appellee has property in her hands, as independent executrix, which is subject to the debt. In this injunction proceeding, appellee had the burden to establish that the property in question was not so subject to appellant’s debt and failed to carry it.

An execution on the original judgment rendered in Cause No. 10,238 would properly run against the estate of the testator in the hands of appellee as independent executrix which is subject to such debt. Here, the surviving widow’s one-half interest in the community property, under the conditions above-stated, could be reached by a proper execution in the absence of a showing that because of some provision of law or of actions taken in the administration proceeding her said interest in the property levied on was not subject to the debt.

It appears that the case was tried and decided on the wrong theory and that material matters of fact were not completely developed. In particular, the record shows that there is a first lien held by a third person on the property in question, but it is not shown how such lien or the claim upon which it was based was handled during the administration. The record further does not show what was done in the administration proceeding concerning exemptions, allowances, classification of claims, priorities or payment thereof, and does not contain a copy of the writ of execution levied on the property sought to be sold.

Under these conditions, the cause will be reversed and remanded for new trial in the interest of justice. Rule 434, Texas Rules of Civil Procedure. If appellee elects to proceed with her petition for injunction, she should be required to properly plead and prove that the property in question was not subject to execution under the rules herein stated.

Reversed and remanded.


author: WILSON, Justice.

text:
    Neal BISHOP et al., Appellants, v. Bow CARTER, Appellee.
    No. 4502.
    Court of Civil Appeals of Texas. Waco.
    Oct. 27, 1966.
    Rehearing Denied Nov. 17, 1966.
    Touchstone & Sampels, Malone, Seay & Gwinn, Dallas, for appellants.

      G. C. Harris, Greenville, Woodrow Edwards, Mount Vernon, for appellee.
   OPINION

WILSON, Justice.

In this automobile collision case cross-defendant asks reversal because of injection of the subject of insurance into the evidence. Cross-defendant himself was the only party who mentioned insurance. He did so on cross-examination, when, in answer to an innocuous inquiry as to who made a photograph introduced in his behalf and upon his identification, he answered, “I don’t know who made it; the insurance, I guess.” Reversible error is not shown by this voluntary and unresponsive answer by the complaining party, not evoked by his adversary. Texas Textile Mills v. Gregory, 142 Tex. 308, 177 S.W.2d 938; Blankenship v. Sutherland, Tex.Civ.App., 324 S.W.2d 592, writ ref. n. r. e.; Musslewhite v. Gillette, Tex.Civ.App., 258 S.W.2d 104.

It is also urged that the court erred in overruling appellant’s motion for new trial because a juror concealed his prior representation by appellee’s counsel, and failed to disclose claims for his own injuries. The juror testified on motion for new trial hearing that he raised his hand when the panel was asked whether any members knew plaintiff’s attorney. He testified he had not been represented by this attorney, and had not been asked a question concerning the matter on voir dire. The point concerning the juror’s failure to disclose injuries was not assigned in the motion for new trial, and may not be considered. He testified he had not been interrogated about his injuries or claims. This asserted error not assigned in the prerequisite motion may not now be urged. Rules 320, 324 and 374, Texas Rules of Civil Procedure. There are no findings of fact, and the implied finding that the misconduct did not occur binds this court. Brawley v. Bowen, Tex. (1965) 387 S.W.2d 383, 384.

Other points have been considered and are overruled.

Affirmed.


author: WALTER, Justice.

text:
    George GONZALES et ux., Appellants, v. TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellee.
    No. 4109.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 28, 1966.
    Rehearing Denied Nov. 18, 1966.

      Huff & Bowers, Lubbock, for appellant.
    Crenshaw, Dupree & Milan, Lubbock, for appellee.
   WALTER, Justice.

Tony Gonzales filed suit against Texas Employers Insurance Association for a general injury under the Workmen’s Compensation Law. He died from causes wholly unrelated to his injury. His parents, as sole surviving heirs, were substituted as parties plaintiff. Among other things they pleaded that as a result of his accident, their son Tony suffered loss of the use of his left leg, his right leg and both legs. The insurance company filed exceptions to plaintiffs’ petition, a general denial and said that Tony’s loss of use of his leg, or legs, was due solely to the general injury to his back and that such was a general injury and that he sustained no injury to his legs.

The court granted the insurance company’s motion for summary judgment and plaintiffs have appealed contending the court erred in holding that they were not entitled to benefits under the Workmen’s Compensation Law as surviving parents. They also contend that the court erred in holding that accrued compensation was not payable up to the time of Tony’s death.

The parties are in agreement that in the case of a general injury the right of action for compensation therefor does not survive, in the sense that the employee’s heirs, as such, may prosecute the same; whereas, in the case of specific injury the right of action at once becomes a vested right for a liquidated sum prescribed by statute, and it survives to the heirs at law of the employee. Texas Employers Insurance Association v. Phillips, 130 Tex. 182, 107 S.W.2d 991 (Tex.Com.App.).

The appellants have pleaded a cause of action for a specific injury under Article 8306, Section 12. The appellee filed a general denial under Rule 92 of Texas Rules of Civil Procedure which puts in issue all matters pleaded by the appellants which are not required to be denied under oath.

Appellee says:

“The Second Amended Petition filed by Mr. and Mrs. George Gonzales after the death of the employee, Tony Gonzales, is an obvious attempt to circumvent the well established law of the State of Texas as announced in the cases above cited. As noted above, the claim for total and permanent incapacity by virtue of a general injury to the back was dropped in the Second Amended Petition and plaintiffs, Mr. and Mrs. Gonzales, alleged, in essence, that by virtue of the injury to his back and low back there was an impingement and pressure on nerves leading into both of Tony Gonzales’ legs resulting in a loss of use of both legs, and plaintiff sought to recover $35.00 a week for 200 weeks for the loss of use of the right leg and the same sum for the total and permanent loss of use of the left leg.”

Our Supreme Court in Aetna Casualty and Surety Company v. Moore, 361 S.W.2d 183 (1962) said:

“We are in agreement with the underlying reasoning of the foregoing cases that violence would be done to the spirit and intent of Workmen’s Compensation Laws if the specific injury provisions are construed to limit such recovery to instances of direct injury to the specific member, principally in the fact that to hold otherwise would preclude recovery by an injured employee of compensation for a resulting injury to a specific member not directly involved in the accident when the injured employee is unable to establish a resulting loss of earning capacity. The view we are adopting would seem clearly to be more consistent with the purposes of our Workmen’s Compensation Act in its provision for compensation to an injured employee for the loss, or the loss of use, of a specific member, regardless of the question of impairment to his earning capacity.”

In Great American Reserve Insurance Company v. San Antonio Plumbing Supply Company, 391 S.W.2d 41, (1965), our Supreme Court said:

“This is a summary judgment case; and in answering the above question, we must follow certain rules laid down by this Court. Rule 166-A, Texas Rules of Civil Procedure, provides that summary judgment shall be rendered if it is shown that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The burden of proof is on the movant, and all doubts as to the existence of a genuine issue as to a material fact are resolved against him. Tigner v. First Nat’l Bank, 153 Tex. 69, 264 S.W.2d 85 (1954); Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952). In other words the evidence must be viewed in the light most favorable to the party opposing the motion. Valley Stockyards Co. v. Kinsel, 369 S.W.2d 19 (Tex.Sup.1963); Smith v. Bolin, 153 Tex. 486, 271 S.W.2d 93 (1954). If the motion involves the credibility of affiants or deponents, or the weight of the showings or a mere ground of inference, the motion should not be granted. All conflicts in the evidence are disregarded, and the evidence which tends to support the position of the party opposing the motion is accepted as true.”

Under the pleadings at the time summary judgment was rendered, the appellants could have recovered a judgment for a specific injury which survives to the employee’s heirs.

If Tony had sustained a general injury, as appellee contends, any claim he had for compensation survived his death for the amount accruing and unpaid from the date of his injury to the date of his death. Texas Employers Insurance Ass’n v. Phillips, 130 Tex. 182, 107 S.W.2d 991. Appellee says there are no specific pleadings of the appellants to support such a recovery. If it appears anywhere in the record that a fact issue is raised, whether supported by the pleadings or not, a summary judgment is improper. Womack v. Allstate Insurance Company, 156 Tex. 467, 296 S.W.2d 233 (1956).

The judgment is reversed and the cause remanded.


author: CADENA, Justice.

text:
    Kent W. RICHARDSON, Appellant, v. FIRST NATIONAL LIFE INSURANCE COMPANY, Appellee.
    No. 14485.
    Court of Civil Appeals of Texas. San Antonio.
    June 1, 1966.
    Rehearing Denied June 27, 1966.
    John D. Wennermark, San Antonio, for appellant.
    Heath & Davis, Austin, for appellee.
   CADENA, Justice.

This is an appeal by Kent W. Richardson, plaintiff below, from the order of a district court of Bexar County dismissing, for lack of jurisdiction, his suit against First National Life Insurance Company, defendant.

The allegations of plaintiff’s petition are as follows: On February 13, 1961, plaintiff was employed by defendant as an insurance salesman under a written contract which provided that plaintiff should receive commissions, at rates specified in the contract, on insurance policies which he sold. Although plaintiff has fulfilled his obligation under the contract, defendant has refused to pay commissions due on policies sold by plaintiff. Plaintiff has made repeated demands for an accounting of the commissions due him, but such demands have been refused by defendant. Plaintiff believes that “at least” the sum of $314.37 is due him under the contract.

The petition concludes with a prayer that defendant be required to make an accounting, and that plaintiff have judgment for “at least” $314.37 and “for such further sums as shall be found due on such accounting,” plus “a reasonable sum as attorney’s fees.”

Defendant excepted to the petition on the ground that it shows on its face that the amount in controversy is less than $500.00. The trial court sustained this exception. Plaintiff did not ask for leave to amend, but, instead, gave notice of appeal.

Plaintiff has not called our attention to any statutory provision which vests in the district courts jurisdiction of suits for accounting, as such, irrespective of the amount in controversy. In the absence of a statute vesting jurisdiction in such courts on the basis of the nature of the matter in dispute, district courts have jurisdiction only where the “matter in controversy shall be valued at or amount to five hundred dollars exclusive of interest.” Article 5, § 8, Vernon’s Ann.Tex.Const.

The petition furnishes no basis whatsoever for determining the amount which plaintiff claims is due him under the contract of employment. The allegation that plaintiff is entitled to “at least” $314.37 is not sufficient to show that the amount in controversy is $500.00. It is not even an allegation to the effect that plaintiff is due more than $314.37. The further prayer for recovery of such additional amounts, in excess of $314.37, as may be shown to be due plaintiff is not sufficient, even if we construe it as an allegation that some amount in excess of $314.37 is due, to show that the amount in controversy is within the district court’s jurisdiction. Similarly, the prayer for reasonable attorney’s fees, even if it be assumed that the petition contains factual allegations sufficient to show that plaintiff would be entitled to attorney’s fees, leaves us completely in the dark as to the amount of attorney’s fees which plaintiff claims.

In the absence of an allegation that an amount within the jurisdiction of the district court is due, or a prayer for the recovery of an amount within that court’s jurisdiction, the petition does not show jurisdiction in the district court. Under these circumstances, the trial court did not err in sustaining defendant’s special exception and in dismissing the case when plaintiff failed to amend. Carroll v. Silk, 70 Tex. 23, 11 S.W. 116 (1888); Gulf, C. & S. F. R. Co. v. Rainbolt, 67 Tex. 654, 4 S. W. 356 (1887); Scott v. Hackfeld, Tex.Civ.App., 263 S.W.2d 570, no writ.

The judgment of the trial court is affirmed.