text:
    DAVIS MOTORS, INC., Appellant, v. Homer PEEL, D/B/A Homer Peel Motor Company, Appellee.
    No. 16298.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 9, 1962.
    Spurlock, Schattman & Jacobs, and Kenneth M. Cole, Jr., Fort Worth, for appellant.
    Mays & Mays, and Charles W. Lindsey, Fort Worth, for appellee.
   BOYD, Justice.

Davis Motors, Inc., appeals from a take nothing judgment after a trial before the court in its suit against Homer Peel, doing business as Homer Peel Motor Company.

There is no statement of facts in the record. At appellant’s request the court'filed findings of fact and conclusions of law. They were:

On April 21, 1958, one Howard Dunn took a Mercury Automobile belonging to Davis Motors, Inc. from the Davis Motors lot, drove same to the place of business of Homer Peel, took $800.00 in cash and a check made payable to Howard Dunn in the amount of $950.00 from Homer Peel, signed over the title to Homer Peel as follows: “Davis Motor Company by Howard Dunn.”

The $800.00 in cash and the $950.00 represented by the check made payable to Howard Dunn and signed by Homer Peel never came into the hands of the plaintiff.

The automobile in question was sold to Davis Motor Company on April 14, 1958, by Brantley-Draughon Business College and the title was transferred by the Brant-ley-Draughon Business College to Davis Motor Company on April 14, 1958, all as shown by the title certificate which is -in evidence. Homer Peel had been doing business with the Davis Motor Company at least since 1955.

During the period of 1955 through April 21, 1958, Homer Peel had bought over 10 cars from the Davis Motor Company. In every case the title to the automobile was signed over in the offices of the Davis Motor Company by a properly authorized person only after a draft signed by Homer Peel was delivered to the offices of the Davis Motor Company. Dunn had no actual authority to sign over titles of automobiles owned by Davis Motor Company to any individual, firm, or corporation.

Prior to April 21, 1958, Howard Dunn had never delivered a title to an automobile owned by Davis Motor Company to Homer Peel. Howard Dunn was, however, the new car sales manager at the time in question for Davis Motor Company. One of the duties of his job included selling used cars. He had the actual authority from his employer to procure purchasers for his employer’s automobiles. He had the actual authority to carry the employer’s automobiles away from the employer’s premises to show them to prospective purchasers. The job of selling automobiles was the very thing the employer had him hired to do. He was the head man for his employer in the function of selling new automobiles. He had the actual authority to accept money paid to his employer by purchasers of their cars. The only thing that Dunn did in connection with this sale in question that he did not have the actual authority to do was to transfer the title to the car in question to Peel. He also had authority to deliver cars sold by him to the purchasers.

On the occasion in question Dunn appeared at Peel’s place of business with the car in question and with the certificate of title to the car. Dunn negotiated a sale of the car to Peel for $1,750.00, $800.00 of which Peel paid by cash, and the balance of $950.-00 by check made payable to Dunn. This check was made payable to Dunn at his request, after advising Peel that it would aid him in getting financing on sale of another of his employer’s cars, if he could promptly cash the check and go by the finance office with the cash.

It was at the time of the sale of the car in question one of the customs and usages in the used car automobile business in Tarrant County, Texas, that the sales manager th’ereof had the actual authority to sign transfers of titles to automobiles to prospective purchasers thereof. Davis Motors, Inc., was a corporation and could only operate through its agents, Dunn was one of the top employees for this corporation. Peel was aware of this custom and usage. He also knew that Dunn was the sales manager for plaintiff and that he was one of plaintiff’s top employees. He had had prior satisfactory dealings with Dunn and had no reason to distrust him any more than his employer did. Peel had no knowledge that Dunn had no actual authority to sign the title certificate for his employer.

Dunn had the apparent authority to transfer the title in question and apparent authority to do all other things he did in order to consummate the sale that he did not have actual authority to do.

All the facts, together with Davis Motors, Inc., putting Dunn in possession of its car and giving him the duties of sales manager for it and in putting him in a position where he had access to its certificates of title, led Mr. Peel, who acted with ordinary care and prudence in the transaction, to justifiably believe that Dunn had the actual authority to transfer the title to the car in question to Peel and to accept the money in payment for it.

Although it was the custom and usage of automobile dealers in Tarrant County at the time in question to authorize their sales managers to deliver titles to automobiles owned by them to individuals, firms or corporations away from the .premises of the said dealers, the Davis Motor Company had never done business in this fashion prior to April 21, 1958.

At the time Dunn delivered the automobile in question to Peel, he told Peel that the automobile was offered as a trade-in by a prospective customer of Davis Motors and that he, Dunn, was attempting to get the automobile financed so that he could accept it in trade on a new car. At the time Dunn made this statement, the title certificate which he gave Peel showed that the Davis Motor Company had owned the automobile in question since April 14, 1958, for a period of seven days prior to the time that Dunn told this story to Homer Peel on April 21, 1958.

In all of the previous dealings between Davis Motor Company and Peel, no cash or draft or anything else of value had ever been delivered to Davis Motors in payment for one of their automobiles by Peel at any place other than at the offices of Davis Motor Company.

In all of the prior dealings between Davis Motor Company and Homer Peel, no draft or check signed by Homer Peel had ever been made payable to any person or firm other than Davis Motor Company.

The fair market value of the Mercury automobile in question in April of 1958 was $1,750.00.

Dunn made restitution to Davis Motor Company in the amount of $700.00 subsequent to April 21, 1958.

If plaintiff is entitled to any judgment plaintiff is also entitled to interest at the rate of 6% from April 21, 1958 on said amount, less credit for payments made by Dunn to Davis Motor Company.

It was concluded that the plaintiff is not entitled to recover anything from defendant Homer Peel, but that it is entitled to the recovery awarded it in the judgment against Dunn, who defaulted.

We are of the opinion that the findings of fact warrant the conclusions of law, and that the judgment should be affirmed. In 2 Tex.Jur.2d 483, Agency, § 44, it is said:

“Where a principal places an agent in such a situation that a person of ordinary prudence, who is conversant with business usages and the nature of the particular business, would reasonably be led to believe that the agent has authority to perform acts customarily done in a business of that kind, one who deals with the agent will be justified in believing that he has such authority.”

The judgment is affirmed.


source: Caselaw Access Project

author: WILLIAMS, Justice.

license: Public Domain

text:
    The GREAT ATLANTIC & PACIFIC TEA COMPANY, Appellant, v. J. E. GILES et ux., Appellees.
    No. 15987.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 16, 1962.
    Rehearing Denied March 9, 1962.

      Touchstone, Bernays & Johnston and G. Duffield Smith, Jr., Dallas, for appellant.
    Woodruff, Hill & Bader, Dallas, for ap-pellees.
   WILLIAMS, Justice.

While a customer in one of the stores of the Great Atlantic & Pacific Tea Company Mrs. Bonnie L. Giles slipped and fell to the floor sustaining personal injuries for which damages were claimed in a suit filed by Mrs. Giles and her husband. From an adverse jury verdict and judgment for plaintiffs, the Great Atlantic & Pacific Tea Company appeals.

In its first group of points, 1-12 inclusive, and 1A-8A inclusive, appellant contends that there was “no evidence” or “insufficient evidence” to establish legal liability against the defendant, as a matter of law, therefore the trial court erred in (a) refusing to instruct a verdict for the defendant, and (b) in refusing to grant defendant’s motion for judgment notwithstanding the verdict.

At the outset appellees object to our consideration of appellant’s “insufficient evidence” points, contending that a motion for instructed verdict and a motion for judgment notwithstanding the verdict do not raise questions of sufficiency or weight of the evidence but only raise questions of “no evidence”. We agree that this is the law. 4 Tex.Jur.2d § 769, p. 279; In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660; Galveston, H. & S. A. Ry. Co. v. Cook (Civ.App.), 214 S.W. 539. Accordingly, we will consider all of appellant’s points as “no evidence” points. Glens Falls Insurance Company v. Vetrano, Tex.Civ.App., 347 S.W.2d 769; Shapiro v. Edwards, Tex.Civ.App., 331 S.W.2d 242.

In passing upon “no evidence” points we must be governed by the well-established rule that if an issue of fact is raised by the evidence, it must go to the jury even though a verdict based on such evidence would have to be set aside as not supported by sufficient evidence. Wallace v. Southern Cotton-Oil Co., 91 Tex. 18, 40 S.W. 399. An issue of fact is raised if discarding all adverse evidence, and giving credit to all evidence favorable to the plaintiff, and indulging every legitimate conclusion favorable to the plaintiff which might have been drawn from the facts proved, a jury might have found in favor of the plaintiff. Wininger v. Fort Worth & D. C. Ry. Co., 105 Tex. 56, 143 S.W. 1150; Brown v. Griffin, 71 Tex. 654, 9 S.W. 546; Texas & P. Ry. Co. v. Ball, 96 Tex. 622, 75 S.W. 4; Maryland Casualty Co. v. Morua, Tex.Civ.App., 180 S.W.2d 194, writ ref.

There seems to be no disagreement between the parties concerning the applicable law of this case. In a “slip and fall” case involving foreign substance a plaintiff must establish by evidence of probative force: (1) that the defendant put the foreign substance on the floor, or (2) that the defendant knew the foreign substance was on the floor and wilfully and negligently failed to remove it, or (3) that the foreign substance was upon the floor for such a period of time that it would have been discovered and removed by the defendant had the defendant exercised ordinary care. 30-B Tex.Jur. § 69, pp. 269-270; Butt Grocery Co. v. Johnson, Tex.Civ.App., 226 S.W.2d 501, err. ref.; Great Atlantic & Pacific Tea Co. v. Logan, Tex.Civ.App., 33 S.W.2d 470; Safeway Stores, Inc. of Texas v. Miller, Tex.Civ.App., 110 S.W.2d 927; Woolworth Co. v. Goldston, Tex.Civ.App., 155 S.W.2d 830, err. ref.; Hollingsworth v. American Trading Co., Tex.Civ.App., 156 S.W.2d 290; Smith v. Safeway Stores, Inc., Tex.Civ.App., 167 S.W.2d 1044; Beard v. Henke & Pillot, Inc., Tex.Civ.App., 314 S.W.2d 844; Allen v. F. W. Woolworth Co., Tex.Civ.App., 315 S.W.2d 612; Del Camino Courts, Inc. v. Curtice, Tex.Civ.App., 323 S.W.2d 355; O’Neal v. J. Weingarten, Inc., Tex.Civ.App., 328 S.W.2d 793; Sherwood v. Medical & Surgical Group, Inc., Tex.Civ.App., 334 S.W.2d 520; Furr’s, Inc. v. McCaslin, Tex.Civ.App., 335 S.W.2d 284.

Appellees frankly admit in brief and in oral argument before this Court that they did not introduce any evidence that the defendant put the foreign substance on the floor, or that the defendant knew the foreign substance was on the floor and wil-fully and negligently failed to remove it. Appellees rely upon the third provision, cited above, contending that there is some evidence that the foreign substance which caused Mrs. Giles to fall had been upon the floor for such a period of time that it would have been discovered and removed by the defendant had the defendant exercised ordinary care, and therefore the trial court was correct in refusing to grant an instructed verdict or to grant a motion notwithstanding the verdict. The principal issue found by the jury to support plaintiffs’ case was one inquiring whether the foreign substance in question had been on the floor a sufficient length of time so that in the exercise of ordinary care the employees of the defendant should have known of its existence and failed to remove the same. If there was any evidence of probative force in this record to support that issue, then appellees are correct in their contention that the judgment should stand. To answer this question, which is determinative of the case, we must carefully examine the material testimony, which we believe to be accurately summarized as follows:

Mrs. Giles testified that on Saturday October 24, 1959 she entered the defendant’s store in Garland, Texas, to purchase some fresh oysters. After entering the store, she went to the rear of the store and observed an employee, Gerald Pierce, come out of a door and she asked him if they had any fresh oysters to which he replied “yes”, and turned around and walked ahead of her and said “they are right up here”. She said she walked right along behind Pierce, about three feet behind him, and as they were walking along the aisle her foot slipped and she went down. The place where she fell was by the meat counter and quite some distance away from the produce counter where grapes were ordinarily kept. After she fell, Mrs. Giles said she saw a spot on the floor, a streak about five inches long and it appeared to be green and moist, wet like, where she had fallen. Pierce immediately summoned the manager, H. S. Stephens, and upon returning to where Mrs. Giles had fallen they wiped up the spot on the floor, stating out loud that it “was a grape”. Mrs. Giles, following the fall, noticed something green and wet on the side of her right heel, the foot upon which she had slipped. She said it appeared to her to have been a green grape. Prior to her fall she said that she was walking about three feet behind Pierce in the aisle and that her vision of the floor was interfered with by his presence in front of her. She said that Pierce was walking ahead of her at the time of her fall and he had “just an instant before” walked over the place where she fell. On cross-examination, Mrs. Giles testified that she had not seen what she fell on until after the fall; that the grape was the only thing caused her to fall. She admitted to having purchased groceries in the store on previous occasions and was familiar with the layout of the store and had been over the floor on several occasions. She did not have a basket or anything in her hands except her handbag. She stated that the lighting in the store was alright, that there was plenty of room in the aisle, and that the floor was in good condition, and that she had no difficulty in seeing the spot after she fell. She admitted that she did not know the grape was on the floor before she slipped; that she did not know how the grape got on the floor, or how long the grape had been there.

Gerald Pierce, the employee of the defendant, testified to a slightly different set of facts regarding his initial encounter with Mrs. Giles, stating that he did not remember any conversation with her before she fell, but that he first noticed her while she was walking along the back wall of the store near the meat counter. He said Mrs. Giles was walking in front of him and that he walked past her and got in front of her and was walking about twelve feet in front of her when she fell; that he heard her cry out at the time of her fall and turned just before she hit the floor. He helped her up and noticed a wet spot on the floor and found a grape peel on the floor which he picked up. He summoned the manager, Stephens, and returned to where Mrs. Giles had fallen. He did not notice the spot on the floor until after Mrs. Giles fell. He further stated that he had walked close to the area where she had fallen, immediately before she fell, naturally looking as he walked, and that he did not see any kind of foreign substance on the floor.

Mr. Stephens, the store manager, testified that he had been over the floor area in question several times that morning before Mrs. Giles fell, the last time being about thirty minutes to one hour before the accident; that at all times the floor was perfectly clean and that there was no foreign substance or wet spot on the floor. He said he saw a small damp spot when he got to Mrs. Giles after her fall, but stated that it had not been there before her fall. He said the spot where Mrs. Giles fell was approximately 100 feet from the produce area and that an investigation revealed a small damp mark about one-half inch wide and two to five inches long which could have been caused by someone stepping upon a grape. He had no knowledge of how the spot got on the floor or how long it had been there. He testified the porter’s duties were to mop the floor before the store opened and to sweep the floor all day, sweeping every thirty minutes or -more if needed.

It is fundamental law of this State that a storekeeper is not the insurer of the safety of his invited customer. Furr’s, Inc. v. McCaslin (Civ.App.), 335 S.W.2d 284; Smith v. Safeway Stores, Inc. (Civ.App.), 167 S.W.2d 1044.

In a case of this kind the burden of proof is upon the plaintiff to introduce testimony of probative force establishing negligence on the part of the defendant. The mere happening of the event does not, of itself, infer negligence. We have carefully examined and analyzed the testimony in this record and find ourselves unable to agree with appellees that they have sustained their burden of proof by bringing forth testimony of probative force creating legal liability against the defendant. There is an entire absence of testimony in this case that anyone had seen the grape at anytime prior to Mrs. Giles’ fall. The evidence is undisputed that no one knew how long the grape had been on the floor prior to her fall. The mere presence of some foreign substance on the floor is insufficient to warrant an inference that the storekeeper placed or left it there or had knowledge of its presence or that it had been there long enough to enable the storekeeper to discover and correct it by the exercise of ordinary care. Dill v. Holt’s Sporting Goods Store, Tex.Civ.App., 323 S.W.2d 644. Appellees seek to satisfy their burden of proof by the testimony that Pierce, the employee of the appellant, had walked over or near the place where Mrs. Giles fell immediately prior to her fall. It is their contention that this conveys “constructive notice” of the object on the floor and demonstrates that it had been there sufficient length of time to have been discovered and removed by the exercise of ordinary care. A careful analysis of the testimony concerning Pierce’s movements fails to demonstrate evidence of probative force which would satisfy the law of liability in this respect. There is no evidence that Pierce saw the object on the floor; there is no evidence the object was on the floor when Pierce walked by ahead of Mrs. Giles; there is no evidence as to when or how the grape got onto the floor; and there is no evidence that Pierce, or anyone else connected with the store, knew that the grape was there, or had reasonable time to remove same prior to the calamity made the basis of this litigation. Appellees’ testimony, considered in the most favorable light, does nothing more than raise a suspicion or surmise, and amounts to no more than a scintilla of evidence which has long been held to be insufficient to raise an issue of fact. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059. Finding, as we do, an absence of evidence to create an issue of fact, it necessarily follows that the action of the trial court in refusing to instruct the verdict for the defendant, or in refusing to grant a judgment notwithstanding the verdict, was error.

In view of our disposition of this appeal we find it unnecessary to pass upon appellant’s points 13 through 17. We have, however, carefully examined these points and finding them to be without merit overrule them.

The judgment of the trial court is reversed and rendered that appellees take nothing against appellant.

Reversed and rendered.


author: LANGDON,' Chief Justice.

text:
    Leonard HYATT, Appellant, v. RADIO STATION WLOU, a Kentucky Corporation, Appellee.

      No. 5507.

    Court of Civil Appeals of Texas. El Paso.
    Feb. 7, 1962.
    Rehearing Denied Feb. 28, 1962.

      Walter G. Lagerquist, Jr., San Antonio, for appellant.
    LeLaurin, Chamberlin & Guenther, San Antonio, for appellee.
   LANGDON,' Chief Justice.

Appellant, Leonard Hyatt, was defendant in a suit brought by appellee, Radio Station WLOU, in Bexar County Court at Law No. 3, to recover the sum of $289.28 allegedly due the radio station for advertising performed pursuant to the terms of a written contract between the parties.

Appellee alleged that a written contract was entered into calling for payment by appellant based solely upon the number of times the advertising was performed. Appellant admitted signing the written instrument, but pleaded that the contract consisted not only of the written instrument, but also of certain letters exchanged between the parties, and that such letters constituted a guarantee by appellee that the advertising would produce a minimum number of inquiries per program. Appellant alleged that he executed and delivered the written instrument conditioned upon appellee’s guarantee of eight inquiries or leads per advertising program. He also alleged that appellee’s programs failed to produce the minimum number of inquiries and, consequently, he was not indebted to appellee.

Appellee admitted having received the letters referred to in appellant’s pleadings and also admitted that the programs performed under the contract failed to produce as many as eight inquiries or leads per program, but contends that the condition set by appellant was not a part of the agreement, nor a condition of same.

Trial was had before the court without a jury, resulting in a judgment for appellee (plaintiff) for the amount claimed, together with interest and attorney’s fees, from which judgment appellant has perfected his appeal.

Appellant has predicated his appeal upon two points, the first of which is a “no evidence” point, by which it is simply contended that “the judgment of the trial court is not supported by any competent evidence.”

“No evidence” points may be sustained only in the event that the record discloses (a), a complete absence of evidence of a vital fact; (b), the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c), the evidence offered to prove a vital fact is so weak as to be no more than a scintilla; or, (d), the evidence establishes conclusively the opposite of the vital fact.

We do not believe that appellant’s Point One can be sustained under any applicable theory of “no evidence”. Appel-lee has sued on a written contract which was admittedly signed by appellant. The contract is in evidence, is complete on its face, and there is no allegation that it was obtained by fraud, accident or mistake. Had there been a failure on the part of the appellee to introduce the contract in evidence, prove up its execution, or a complete failure to otherwise establish the vital terms of the contract sued upon (such as occurred in Aetna Insurance Co. v. Klein, 160 Tex. 61, 325 S.W.2d 376), a different result might be reached. Appellant’s Point One is accordingly overruled.

Appellant’s Point Two, while not strictly a true “no evidence” point, is based on the contention that “the trial court erred in rendering judgment for plaintiff because the uncontroverted evidence shows that the defendant entered into the advertising contract upon the express condition that plaintiff guarantee that it would produce eight leads or inquiries per day, and plaintiff accepted the contract with such condition, but failed to perform such condition or guarantee.”

As we understand appellant’s Point Two, it is either a “no evidence” point, or it is simply a contention that the evidence establishes conclusively the opposite of the vital fact required to support the trial court’s judgment. In any event, before appellant is entitled to have the judgment rendered by the trial court reversed and judgment rendered in his favor, it must appear conclusively that the contract signed by appellant was executed and delivered by him upon condition that appellee would guarantee the production of a minimum of eight leads or inquiries per program, and it must further conclusively appear that appellee accepted the agreement so conditioned and thereby made the guarantee. We do not believe the evidence offered by appellant is such as would compel either of these conclusions. The general rule is that, in the absence of fraud, all prior and contemporaneous negotiations, whether written or unwritten, are merged into the written contract. In such case, in the absence of fraud, accident or mistake (neither plead nor proven here), courts are required to conclusively presume that the final written contract contained the whole agreement. Since the “condition” or “guarantee” asserted by appellant was not expressly provided, and since it is not such a condition or guarantee ,'as may be implied from the writing, it will be presumed that the parties intentionally omitted the condition, and courts will not re-write the contract in order to impose a condition, or engraft a warranty or guarantee which the parties themselves, however improvident, failed to provide. Milliken v. Callahan County, 69 Tex. 205, 6 S.W. 681; Alamo Lumber Co. v. Fahrenthold, Tex.Civ.App., 58 S.W.2d 1085 (wr. ref.); 17 C.J.S. Contracts § 381, p. 872 et seq.

We have concluded that both points raised by appellant on this appeal are “no evidence” points. A “no evidence” point raises a question of law and, in such case, it is the duty of appellate courts to view the evidence in the light most favorable to the verdict and to disregard all evidence which is adverse, contrary, or conflicting to the favorable evidence. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114; Montgomery Ward & Co. v. Scharrenbeck, 146 Tex. 153, 204 S.W.2d 508; Robertson v. Robertson, 159 Tex. 567, 323 S.W.2d 938; Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696.

Applying the rule stated above, we have concluded that there is evidence to support the judgment of the trial court.

If it be contended that appellant’s second point is not a “no evidence” point, but one by which it is asserted that the evidence establishes conclusively, or as a matter of law, that the parties entered into the advertising contract upon the express condition that appellee (plaintiff) guarantee that its programs would produce a minimum of eight leads or inquiries per program (which we believe would have been a better contention) — still, the point must be overruled. Even if it be assumed (which we do not) that the letters which passed between the parties prior to and contemporaneous with the execution of the formal contract may, under some theory, be considered for the purpose of determining the intent of the parties, the contract becomes, at best, ambiguous. In such cases, the trial court’s decision is determined by facts adduced from the evidence, and may not be decided solely as a matter of law.

Having carefully considered each of appellant’s points, we are of the opinion that they, and each of them, should be overruled.

Finding no error, the judgment of the trial court is affirmed.


author: WERLEIN, Justice.

text:
    BURLESON COUNTY, Appellant, v. Mrs. Eda GIESENSCHLAG et al., Appellees.
    No. 13888.
    Court of Civil Appeals of Texas. Houston.
    Feb. 8, 1962.
    Rehearing Denied March 1, 1962.
    C. W. Karisch, Hempstead, for appellant.

      Walter M. Hilliard, Caldwell, Charles C. Smith, Jr., Cameron, for appellees.
   WERLEIN, Justice.

This is an appeal by Burleson County, Texas from a judgment dismissing its condemnation suit on the ground that the County Court did not have jurisdiction. In response to appellant’s request for Findings of Fact and Conclusions of Law, the court found that the suit was based on two resolutions of the Commissioners Court which were set out in full, and concluded that said resolutions, separately or together, were insufficient to confer jurisdiction on the court. The court did not state wherein such resolutions were insufficient.

It is not contended by appellee that the resolution of March 13, 1961 referred to in the petition for condemnation, and which was duly and unanimously adopted, does not accurately describe the land sought to be condemned and the owners thereof. It will suffice to say that such resolution conforms to statutory requirements, particularly Articles 3264 and 3264a of Vernon’s Annotated Texas Statutes. It states in substance that the Commissioners Court found it necessary that the County acquire for public road purposes, in re-opening of the public road in question, a certain strip of land described by metes and bounds; that all attempts to agree with the owners (naming appellees) on a price for such right of way had been unsuccessful, and that further negotiations in that regard would be useless; and that it was necessary that condemnation proceedings be instituted to acquire such strip of land for public road purposes. The court then ordered that C. W. Karisch be and he was authorized and directed on behalf of the county to institute condemnation proceedings for the purpose of acquiring an easement along and over said strip of land for public road purposes.

We have carefully examined the resolution and find that it is sufficient and in proper form. The allegation in the petition -filed in the County Court to the effect that the easement is for the purpose of opening, constructing and maintaining a permanent public road, and the allegation in the order of the Commissioners Court that it is necessary to acquire for public road purposes, in re-opening said road, the strip of land in question, do not constitute a material discrepancy or one that goes to the jurisdiction of the court. There is no necessary variance and certainly no fatal variance resulting from the use of the words “open” and “re-open,” since either might be applied to opening a road that had been abandoned or closed.

An earlier resolution of the Commissioners Court indicates that there was a road apparently along and over the same strip which the County sought to condemn, but it is not shown whether such road was abandoned. It is shown, however, that such road was closed and obstructed by fences and that three or more freeholders and owners of land were being deprived of public means of access to their property by reason thereof. The resolution, which was adopted by the Commissioners Court prior to the resolution or order ordering condemnation of the strip of land in question, merely ordered that necessary steps be taken to re-open said road.

We think there can be no question that a county under Art. 3264a, V.A.T.S., may condemn a public road that has been abandoned or closed and obstructed by fences preventing use thereof. It may by means of condemnation proceedings open, re-open, construct, reconstruct, straighten, widen or otherwise improve a road for public purposes when the Commissioners Court finds it necessary to do so. “The power of eminent domain may be exercised to widen or otherwise improve an existing highway, * * *." 29 C.J.S. Eminent Domain § 33, p. 829; Barnhart v. City of Grand Rapids, 1926, 237 Mich. 90, 211 N.W. 96; Sherlock v. Mobile County, 241 Ala. 247, 2 So.2d 405; Galveston, H. & S. A. Ry. Co. v. Baudat, 18 Tex.Civ.App. 595, 45 S.W. 939; Thompson v. Janes, Tex.Civ.App., 245 S.W.2d 718, aff’d 1952, 151 Tex. 495, 251 S.W.2d 953; Pois v. Sharman, Tex.Civ.App., 296 S.W. 665, error ref.

All of the statutory requirements antecedent to the hearing in court were complied with. The matters complained of by appellees in their objections to the award of the commissioners in the main part involve issues of fact which should be determined by the trial court when the case is tried on the merits. They do not go to the jurisdiction of the court to hear and determine such issues. The matter of determining the necessity for the construction and location of public roads of the kind in question is left to the sound discretion of the Commissioners Court. The appellate courts have repeatedly held that the judgments of the Commissioners Courts in all matters over which they are given jurisdiction by the Constitution and Statutes are entitled to the same consideration as those of other courts provided by the Constitution. Tarrant County v. Shannon, 1937, 129 Tex. 264, 104 S.W.2d 4, and authorities cited.

Some of the objections made by ap-pellees would be pertinent and perhaps controlling if the condemnation proceedings in question had been brought under Articles 6702-6716, V.A.T.S. This proceeding, however, was brought under Article 3264a, V.A.T.S., and hence Articles 6702-6716 do not in any way control. Tarrant County v. Shannon, supra.

We do not agree with appellees that the Commissioners Court may not employ an attorney for the purpose of instituting and prosecuting a condemnation suit. There is no statute requiring that the county attorney represent the county in such matter. City Nat. Bank v. Presidio County, Tex.Civ.App.1894, 26 S.W. 775; Grooms v. Atascosa County, Tex.Civ.App., 32 S.W. 188; Gibson v. Davis, Tex.Civ.App.1921, 236 S.W. 202; Art. 334, V.A.T.S. Furthermore, the agreement of the interested landowners with the Commissioners Court to reimburse Burleson County for the costs of acquiring the right of way along the road the County seeks to re-open, does not affect the validity of the condemnation proceedings. Phillips v. Stockton, Tex.Civ.App. 1954, 270 S.W.2d 266, reversed on other grounds, 275 S.W.2d 464; McClintock v. Bovay, 1924, 163 Ark. 388, 260 S.W. 395.

Reversed and remanded,


author: PER CURIAM.

text:
    HIDALGO COUNTY WATER CONTROL & IMPROVEMENT DISTRICT NO. 1 et al., Appellants, v. K. C. BOYSEN, District Clerk, et al., Appellees.
    No. 13943.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 7, 1962.
    Rehearing Denied Feb. 28, 1962.

      A. G. Haigh, Edinburg, Ewers, Toothaker, Ewers, Elick, Jones & Abbott, McAllen, Sawnie B. Smith, Kelley, Looney, McLean & Littleton, Edinburg, Smith, Mcllheran & Jenkines, Weslaco, Hill, King & McKeith-an, Mission, for appellants.
    Frank R. Nye, Jr., Rio Grande City, L. Hamilton Lowe, Austin, Longoria & Evins, Edinburg, Truett Hubbard, Donna, A. J. Vale, Rio Grande City, Carter, Stiernberg, Skaggs & Koppel, Harlingen, for appellees.
   PER CURIAM.

This is an appeal from an order denying a temporary injunction. Appellants sought the injunction to restrain the payment of attorney’s fees to the attorney for the water master in a pending suit. They claimed that the attorney was appointed by a void order. The issue is whether two District Judges who entered orders were disqualified, one because he was an attorney in the case, and the other because of his relative’s interest.

The Hon. Magus F. Smith, as Judge ot the 93rd Judicial District, entered an order during February, 1961, which discharged one attorney and appointed John Snedeker to represent the water master in matters arising out of a pending lawsuit. Appellants contend that the order was void. The presiding judge of the Fifth Administrative Judicial District assigned Hon. Woodrow Laughlin, Judge of the 79th District Court, to serve as Judge of the 93rd District Court during the month of August, 1961. While so serving, Judge Laughlin entered an order which undertook to confirm the earlier appointment by Judge Smith and to reappoint Mr. Snedeker. Appellants urge that Judge Smith was disqualified because he was formerly counsel for named parties in the pending water case. They urge that Judge Laughlin was also disqualified by reason of the interest of his relatives within the prohibited degrees of relationship. Because of these disqualifications, appellants urge that the District Clerk should make no payment of attorney’s fees under the two void orders.

Judge Smith was disqualified. Pri- or to his elevation to the bench, the record shows that Judge Smith, as attorney, signed and filed two separate pleadings on behalf of named parties, and by those pleadings took a legal position by asserting legal claims to the waters under the management of the court through the water master. By a third pleading, Judge Smith’s name appears as attorney on behalf of still another named party, but the pleading is signed by his former law associate. These pleadings by Judge Smith settle the issue about his former appearance as an attorney in the case.

Section 11, Article 5, of the Texas Constitution, Vernon’s Ann.St., provides that “No judge shall sit in any case * * * when he shall have been counsel in the case.” Judge Smith, by reason of his pleadings on behalf of the parties, was an attorney in the case prior to his becoming a judge and was disqualified to appoint the water master’s attorney. Newcome v. Light, 58 Tex. 141; Slaven v. Wheeler, 58 Tex. 23; Woody v. State, Tex.Cr.App., 69 S.W. 155; Pinchback v. Pinchback, Tex.Civ.App., 341 S.W.2d 549; Turner v. Chandler, Tex.Civ.App., 304 S.W.2d 687; Kruegel v. Williams, Tex.Civ.App., 194 S.W. 683; Johnson v. Johnson, Tex.Civ.App., 89 S.W. 1102; Gaines v. Hindman, Tex.Civ.App., 74 S.W. 583.

Judge Laughlin later entered his order relating to the same matter. Appellants urge that he too was disqualified, and, further, that his order merely approved that which was void. Judge Laughlin has a cousin who owns two city lots in Edinburg, which are within the boundaries of and use water furnished by the Hidalgo County Water Control and Improvement District No. 1, a party to the main water suit. The judge’s cousin testified that he was not involved in the lawsuit, had spent no. money on it, was not a party so far as he knew, and had hired no one to represent him. Judge Laughlin also has a second cousin whose wife owns 19.6 acres of land as her separate property which is within and is furnished water by the Hidalgo Water Improvement District No. 3, another party to the main water suit. Neither of these relatives of Judge Laughlin is named as a party. Appellants contend, however, that they are dependent upon water furnished by named parties, and that the Water Districts are their agents.

Section 11, Article 5, of the Texas Constitution provides that “No judge shall sit in any case * * * where either of the parties may be connected with him, either by affinity or consanguinity, within such a degree as may be prescribed by law * Article 15, R.C.S., fixes that degree at the third degree. Judge Laughlin’s relatives are within that degree.

Whether Judge Laughlin was disqualified turns upon the scope of the term “parties” within the intent and meaning of the Constitution and statute. Neither his cousin nor his second cousin’s wife was named as a party. This fact is not always controlling, if the interest of the relative is a direct one. The Supreme Court’s opinion in Postal Mutual Indemnity Co. v. Ellis, 140 Tex. 570, 169 S.W.2d 482, 484, is helpful. The closeness of a decision is there illustrated. An attorney who is related to the judge and whose fee is contingent upon the outcome of the case has only an indirect interest and the judge is not disqualified. But, if the judge must pass directly upon the amount of the fee and approve the amount, the attorney then has a direct interest in the subject matter of the suit, and the judge is disqualified. From this we learn that the facts of each case must be examined to determine whether the relative’s interest is direct or indirect. An unnamed person who owns property or will be liable in community with a named party is directly interested. Fry v. Tucker, 146 Tex. 18, 202 S.W.2d 218. An unnamed partner is directly interested with a named partner. Grubstake Investment Ass’n v. Kirkham, Tex.Civ.App., 10 S.W.2d 184; Stephenson v. Kirkham, Tex.Civ.App., 297 S.W. 265.

The relationship to the judge does not, however, disqualify when the judge is related to the officers and stockholders of a defendant corporation. Campbell v. Moore, Tex.Civ.App., 12 S.W.2d 806; Kingman Texas Implement Co. v. Herring Nat. Bank, Tex.Civ.App., 153 S.W. 394; Houston Cemetery Co. v. Drew, 13 Tex.Civ.App. 536, 36 S.W. 802; Lewis v. Hillsboro Roller-Mill Co., Tex.Civ.App., 23 S.W. 338. The relative’s interest is indirect though an attorney will receive a contingent fee, Winston v. Masterson, 87 Tex. 200, 27 S.W. 768; though a relative is a certificate member of a Marketing Association, Texas Farm Bureau Cotton Ass’n v. Williams, 117 Tex. 218, 300 S.W. 44; and though an unnamed relative is a member of a class in a class action. International & G. N. Ry. Co. v. Anderson County, Tex.Civ.App., 174 S.W. 305, 327-329.

In applying the rule of disqualification for a relative’s interest we should endeavor to follow the spirit and intent of the Constitutional rule. The rule is based upon ethical principles. Justice should not have even the appearance of extraneous influence. The line has been drawn at that point where one can determine from the facts that the relative’s interest is direct and real instead of indirect and remote. Even this general rule may be limited by necessity. This is so, because the Constitution does not contemplate that judicial machinery shall stop. When the law afforded no other alternative, Chancellor Kent refused, under the doctrine of necessity, to disqualify himself though his brother-in-law was plaintiff. Moers v. White, 6 Johns Ch. 360 (N.Y.1822). See, 30 Am.Jur., Judges, §§ 91-92; 39 A.L.R. 1476; 56 Yale Law Journal 605; 33 C.J., Judges, § 130; 48 C.J.S. Judges § 74. Lest the judicial process wholly fail, judges have been compelled to decide whether judges should pay income taxes. Evans v. Gore, 253 U.S. 245, 40 S.Ct. 550, 64 L.Ed. 887, 11 A.L.R. 519. Back of those decisions which hold that a judge is qualified in suits against municipalities, though the judge is a resident of the city, we are told, is this principle of necessity. City of Dallas v. Peacock, 89 Tex. 58, 33 S.W. 220.

Mr. Justice Hickman alluded to this practical doctrine of necessity in Hidalgo County Water Improvement Dist. No. 2 v. Blalock, 157 Tex. 201, 301 S.W.2d 593, out of which the present suit grew. He said, “We face a condition unique in the history of our jurisprudence.” Judge Blalock owned lands like those which named parties claimed were riparian, with riparian rights. The Court commented upon the unique size of the case, the difficulty in obtaining a judge who might try the case, and the importance of litigating th'e issues, and held that Judge Blalock was qualified. One water allotment report in this record, filed for the month of August, 1961, shows more than seven hundred named cities, water districts, and individual diverters, who are in the court’s jurisdiction. A former appeal shows that more than a million acres of land are affected in several counties. State v. Valmont Plantations, Tex.Civ.App., 346 S.W.2d 853. This is a class action, and in an indirect sense every person in several counties has an interest .in the result of this litigation. Cases which have few parties make discovery of interest or of relationship rather simple. Judges can and do recuse themselves in such cases. Cases with a mass of unknown members of a class present different problems. Relationship may not be revealed until decades later. We are not without precedent in such instances. “It is thought that it is not enough * * * to render a judge incompetent under terms of the law that he is related to some unnamed or inchoate party merely who may be affected by the judgment. As before said, a different construction would extend the provision of law beyond its letter and spirit so as to cast uncertainty upon all rights acquired under judicial proceedings.” International & G. N. Ry. Co. v. Anderson County, Tex.Civ.App., 174 S.W. 305, 329. See also, City of Dallas v. Armour & Co., Tex.Civ.App., 216 S.W. 222. If that were not the rule, judgments in class suits, and those with multitudes of parties, could serve as traps. They would have no durability. Precedents should be protected from such hidden and destructive forces. In multiparty actions, the interest of unnamed relatives should not only be direct, it should be substantial. In our opinion, it was upon this principle that the Supreme Court refused to hold judges disqualified in Hidalgo County Water Improvement Dist. No. 2 v. Blalock, supra, in Texas Farm Bureau Cotton Ass’n v. Williams, 117 Tex. 218, 300 S.W. 44, and in Love v. Wilcox, 119 Tex. 256, 28 S.W.2d 515. Judge Laughlin was not disqualified.

A final point remains. Did Judge Laughlin in fact appoint Mr. Snedeker as attorney? Judge Smith’s February orders were void, but Judge Laughlin, who was not disqualified, purported to make an order. His order as a whole reveals its intent. The order states that, if the order by Judge Smith is invalid, he, Judge Laughlin, intends as an original matter to do what is essential to make the appointment of Mr. Snedeker a valid appointment. Judge Laughlin thus not only confirms the earlier appointment, but does more. He states that Mr. Snedeker “is on this date reappointed as attorney * * This order was made on August 7, 1961, and in our opinion that is the date on which Mr. Sned-eker was validly appointed as attorney “to represent the Special Water Master.” Younger v. McCoy, Tex.Civ.App., 53 S.W.2d 165; Comstock v. Lomax, Tex.Civ.App., 135 S.W. 185. We accordingly affirm the judgment.

      . “It appearing to this Court that a question has been raised concerning the qualification of the said Magus E. Smith, and the Court being of the opinion that it is imperative to the rights of all parties concerned in this lawsuit that the proper administration of the matters pertaining to the Special Water Master should be carried out and the necessity exists for an attorney to handle the filing and prosecution of all matters pertaining to ■ said Special Water Master’s administration of the waters impounded by the Court, and in order to eliminate any • - question concerning the legality of the ap-i pointment of an attorney to represent the Special Water Master, the Orders heretofore entered by the Honorable Magus E. Smith -are in all things confirmed; therefore, it is ORDERED, ADJUDGED AND DECREED that the Order heretofore entered by the said Honorable Magus P. Smith terminating the services of the said Hollis H. Rankin and appointing the said John S. Snedoker as attorney representing the Special Water Master is in all things confirmed, and the said John S. Snedeker is on this date reappointed as attorney to represent the Special Water Master at a monthly salary of Five Hundred and No./100. ($500.00) Dollars per. month.”


text:
    TEXAS LIQUOR CONTROL BOARD, Appellant, v. Clarence O. SPIVEY, Appellee.
    No. 15954.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 2, 1962.

      Will Wilson, Atty. Gen., and Cecil Cam-mack, Jr., and Norman V. Suarez, Asst. Attys. Gen., for appellant.
    Shwiff & Wheeler, Dallas, for appellee.
   WILLIAMS, Justice.

Clarence O. Spivey filed his application for “beer retail on-premises license.” Art. 667-5, Vernon’s Ann.Penal Code. Following a hearing, and by order dated January 24th 1961, the County Judge of Dallas County, Texas refused the application. Spivey appealed from this order to the District Court of Dallas County, Texas. The District Judge, in a non-jury trial, reversed the order and directed the issuance of a license. The Texas Liquor Control Board, through the Attorney General, appeals, contending that the trial court erred in holding that the applicant, Spivey, had discharged his burden of proof showing that the order of the County Judge was not supported by substantial evidence or was arbitrary and illegal.

The sole question for determination is whether the order of Jhe County Judge refusing appellee’s application for “beer retail on-premises license” finds reasonable support in substantial evidence.

Appellant correctly states that the action of the County Judge was an administrative act rather than a judicial act. Jones v. Marsh, 148 Tex. 362, 224 S.W.2d 198. An appeal from an order of the County Judge issued in the performance of his administrative duties is treated not as a judicial appeal but as an appeal from an administrative board, and this being the case, the burden of proof is upon appellee, Spivey, as the person attacking the administrative decision of the County Judge to show that the order of the County Judge was not reasonably supported by substantial evidence. Ramos v. Austin (Civ.App.) 220 S.W.2d 528; Texas Liquor Control Board v. Armstrong (Civ.App.) 300 S.W.2d 146, writ ref.; State v. Peeler (Civ.App.) 200 S.W.2d 874; Texas Liquor Control Board v. Marine Exchange Social Club (Civ.App.) 127 S.W.2d 967; Texas Liquor Control Board v. McGee (Civ.App.) 314 S.W.2d 678.

Certain fundamental principles must be observed in the proper application of. the substantial evidence rule. These principles were concisely stated by Mr. Justice Wilson of the Waco Court of Civil Appeals in the recent case of Texas Liquor Control Board v. Scott, 347 S.W.2d 841, err. ref. n. r. e., as follows:

“Basic concepts involved in applying the substantial evidence rule have been established by the Supreme Court in decisions, many of which are cited in Texas Liquor Control Board v. Armstrong, Tex.Civ.App., 300 S.W.2d 146, writ refused, where Justice Pope concisely collates some of the controlling canons. Those pre-eminently controlling here are (a) that the question of law (not fact) involves determination of reasonableness, which negatives the idea the ‘court is to try anew the statutory issues tried by the Board,’ for it is not a typical de novo trial; (2) that the decision ‘cannot be made on facts found on the trial as in other civil cases’, since a law question is involved ; and therefore, preponderance of evidence is not the test. Southern Canal Co. v. State Board, etc., 159 Tex. 227, 318 S.W.2d 619. (3) ‘The court is not (authorized) to substitute its discretion for that committed to the agency by the Legislature:’ Hawkins v. Texas Co., 146 Tex. 511, 209 S.W.2d 338, 340; Board of Firemen’s Relief, etc. v. Marks, 150 Tex. 433, 242 S.W.2d 181, 183, 27 A.L.R.2d 965. (4) The test is whether the evidence is such that ‘reasonable minds could not have reached the conclusion that the agency-must have reached in order to justify its actions.’ Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424, 441; Texas Liquor Control Board v. Armstrong, supra.

Appellant relies on the provisions of Art. 667-5(3) (i) Vernon’s Ann.Penal Code,, which provides that the County Judge may refuse to issue a license to any applicant if he has reasonable grounds to believe and finds that the applicant has failed or refused to furnish a true copy of his application to" the Texas Liquor Control Board District office in the District in which the premises sought to be covered by license is located." The instructions contained in the application itself provided that a copy of said application must be filed with the District Of-' fice of the Texas Liquor Control Board. The order of the County Judge recited that a lawful reason existed to warrant his denial of the application.

Upon the trial in the District Court ap-pellee Spivey testified to various facts contained in his application but offered no evidence whatsoever that he had complied with the provisions of the law relating to supplying a copy of the application with the State authorities.

The question here is a simple one, could reasonable minds not reach the conclusion that the County Judge reached in order to justify his action. Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424. The appellee makes no contention that he offered any proof whatsoever to satisfy this parcicular requirement of the law concerning notice. Appellee contends that such may be inferred from the fact that a hearing was held. With this we cannot agree. From this record as a whole it is evident that appellee failed to sustain his burden of proof. We are unable to say that reasonable minds could not have reached a conclusion that was reached by the County Judge and therefore we resolve this question of law against appellee.

The judgment of the trial court is reversed and here rendered that the order of the County Judge dated January 24, 1961 be reinstated and confirmed.

Reversed and rendered.


text:
    R. T. GIBBS, Justice of the Peace (The State of Texas), Appellant, v. Virgil Vernon MELTON, Appellee.
    No. 16054.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 16, 1962.

      J. S. Grisham, Canton, for appellant.
    Clyde Elliott, Jr., Canton, for appellee.
   WILLIAMS, Justice.

This is an attempted appeal from the District Court of Van Zandt County, Texas, wherein the court granted a writ of mandamus requiring the Justice of the Peace of Precinct #5 to transfer a misdemeanor complaint to the Justice Court of Precinct #7, both in Van Zandt County.

Appellee, Virgil Vernon Melton, was arrested by a peace officer for the alleged violation of a traffic law, which offense, if any, was committed in Precinct #7. The complaint was filed with the Justice of the Peace of Precinct #5 of Van Zandt County. Thereafter, appellee filed a motion with the Justice of the Peace of Precinct #5 seeking to have the case transferred to Justice Precinct #7, the Precinct in which the alleged offense, if any, was committed, pursuant to Art. 60a, Vernon’s Ann.C.C.P'. The court overruled the motion to transfer and set the case for trial. Thereupon, ap-pellee filed an application in the District Court of Van Zandt County for a temporary restraining order and for a temporary injunction against the Justice of the Peace of Precinct #5 to restrain him from proceeding to the trial of the case. Temporary restraining order was granted and upon final hearing the court found that the offense, if any, alleged against Melton occurred in Precinct #7 of Van Zandt County, Texas; that Precinct #7 has a duly elected, qualified and acting Justice of the Peace; that the Justice of the Peace of Precinct #7 has jurisdiction and venue over the case. The trial court issued a writ of mandamus directing the Justice of the Peace of Precinct #5 to transfer the case to Precinct #7. It is from this order that the State of Texas appeals.

The State contends that Art. 60a, V.A. C.C.P., which provides that no person shall be tried in any misdemeanor case in any Justice Precinct Court except in the Precinct in which the offense was committed, or in which the defendant resides, contravenes the Criminal Jurisdiction of the Justice Court granted to said Court by § 19, Art. V, of the Constitution of the State of Texas, Vernon’s Ann.St., and is therefore void,

At the outset of our consideration of this appeal we are immediately confronted with the question of jurisdiction of this Court to do what the State request us to do, i.e., to hold unconstitutional a criminal procedural statute in connection with a criminal prosecution. While neither the State of Texas nor the appellee has raised the question of jurisdiction, this Court is required to determine its own jurisdiction and to take notice of its want of appellate jurisdiction when disclosed by the record. The jurisdiction of the Courts of Civil Appeals is derived from the law and it cannot he conferred by consent or stipulation of the parties, nor may it be waived either by the Court or by a party litigant. 3-A Tex.Jur. § 33, p. 42; Straley v. Commissioners’ Court of Lampasas County (Tex.Civ.App.), 266 S.W.2d 469; Ortiz v. Associated Employers Lloyds (Tex.Civ.App.), 294 S.W.2d 880; Glenn v. Armstrong (Tex.Civ.App.), 284 S.W.2d 165; Ellison v. Panhandle & Santa Fe Ry. Co. (Tex.Civ.App.), 306 S.W.2d 909; Smith v. Crouch (Tex.Civ.App.), 323 S.W.2d 73.

The Constitution provides that Courts of Civil Appeals have appellate jurisdiction coextensive of their respective districts, extending to all civil cases of which the District Courts or County Courts have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law. Constitution, Art. V, § 6. The Legislature has provided that appellate jurisdiction of Courts of Civil Appeals shall extend to all civil cases within the limits of their respective districts of which the District and County Courts have or assume jurisdiction when the amounted controversy or judgment rendered shall exceed $100 exclusive of interest and cost. Art. 1819, Vernon’s Ann.Civ. St. It is elementary that the jurisdiction of the Courts of Civil Appeals is controlled by the Constitution and Statutory provisions and is not unlimited or absolute. Myers v. Smitherman (Tex.Civ.App.), 279 S.W.2d 173; Harbison v. McMurray, 138 Tex. 192, 158 S.W.2d 284.

The State of Texas brings this appeal seeking, as its sole admitted purpose, to have this Court, which is clothed with civil jurisdiction, to strike down and declare invalid a provision of the Code of Criminal Procedure which has to do with the filing and prosecution of criminal misdemeanor cases in Justice of the Peace Courts. The record does not demonstrate a question involving any private property rights nor the redress of a private wrong. No contention is made that any civil action arises out of the transaction herein involved. The statute in question is so closely interrelated to Criminal cases that there can be no distinction drawn between the nature of the two.

The question of the jurisdiction of the District Court of Van Zandt County is not here in dispute. The District Court of Van Zandt County is clothed with both civil and criminal jurisdiction. Our jurisdiction, however, as pointed out above, flows solely from constitutional or statutory authority which expressly prohibits us from deciding criminal actions.

The case of Austin Fire & Police Departments v. City of Austin, 149 Tex. 101, 228 S.W.2d 845, being the only case cited by the State in support of its contention that this Court has jurisdiction, is clearly not applicable. In that case the question presented to the Supreme Court clearly involved private property rights growing out of pensions and though it did involve Art. 1583 of the Vernon’s Ann.Penal Code, Chief Justice Hickman stated that the Supreme Court would take jurisdiction only because a real civil action was based upon the Article of the Penal Code. Many other cases wherein the Courts of Civil Appeals and the Supreme Court have taken jurisdiction of cases arising from Penal Statutes, may be cited but none have application to the facts here. In all of those cases a cause of action based upon private property rights are involved. Ex parte Sterling, 122 Tex. 108, 53 S.W.2d 294; Ex parte Phares, 122 Tex. 104, 53 S.W.2d 297; Law v. Texas Delivery Service, Inc., 335 S.W.2d 653.

It is significant to note that the authorities relied upon by the State to hold Art. 60a, Vernon’s Ann.Code of Criminal Procedure invalid are cases decided by the Court of Criminal Appeals.

Being of the opinion that this case is not a “civil action” within the meaning of the Constitution and Statutes conferring jurisdiction upon this Court, it necessarily follows that the appeal must be dismissed.

Appeal dismissed for want of jurisdiction.


author: RENFRO, Justice.

text:
    Lynda HENDERSON, Appellant, v. Margaret Cameron SMITH, Appellee.
    No. 16292.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 9, 1962.
    Rehearing Denied March 9, 1962.
    James J. Hultgren, Dallas, for appellant.
    Bailey & Williams and James A. Williams, Dallas, for appellee.
   RENFRO, Justice.

This suit grew out of an intersection collision between automobiles driven by plaintiff Henderson and defendant Smith.

The jury found that plaintiff failed to keep a proper ■ lookout and such failure was a proximate cause of the collision. Based upon said findings, judgment was entered for defendant, and plaintiff appealed.

Plaintiff’s first two points are based on contentions of no evidence to support the jury findings on proper lookout, and other points contend the findings are against the great preponderance and weight of the evidence. ■■

The accident occurred about 5:30 P.M. at the intersection of Northwest Highway and Hathaway Street in the City of Dallas. Northwest Highway has four lanes, two for west bound traffic and two for east bound traffic. Hathaway Street is a residential street which enters the Highway from the north. Traffic from Hathaway Street into the Highway is controlled by a stop sign. Defendant approached the Highway on Hathaway. Plaintiff was driving west on the outside, or north, lane of the Highway. When the impact occurred defendant’s car was partly across the “east-west divider” of the Highway. Plaintiff’s car was in the inside west bound lane of the Highway. The left front side of defendant’s car was damaged and the left front fender of plaintiff’s car was damaged. Plaintiff’s car left 35 feet of skid marks, angling from the north lane to the point of impact.

Plaintiff testified in person and portions of her prior deposition were introduced. Viewing the evidence from the standpoint most favorable to the jury findings, her testimony is in substance that she was traveling west about 40 miles per hour as she entered an underpass east of the point of collision; she continued west and as she emerged from the underpass she saw defendant’s car on Hathaway and “it looked to me like it was stopped”, so she continued to drive forward. At that time the defendant’s car was about 240 feet away. In her deposition plaintiff testified that after she first saw defendant’s car from the underpass she did not see it again until the impact. At another point she testified she saw defendant’s car again when plaintiff was about 80 feet from the point of impact at which time defendant’s car was moving onto the Highway. As to whether or not defendant’s car was moving when plaintiff first saw it she answered, “No, I don’t — no—she may have been. I saw her car off to my right and it seemed that this car was stopped and waiting for me, like any other car. Q. * * * You assumed that she was stopped — * * *? A. Yes. Q. Rather than actually observing whether she was stopped or moving? A. That is what I said.” Again, “Q. Did you see her from the time you first saw her, up until the time of the accident? — Now what was your answer? A. I said, no, I was watching the road.”

Ordinarily, proper lookout is a question for the jury. Texas & Pacific Ry. Co. v. Day, 145 Tex. 277, 197 S.W.2d 332. The appellate court must consider that evidence, if any, which viewed in its most favorable light supports the jury findings. Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359.

It was within the jury’s province to judge the credibility of the witnesses and the weight to be given their testimony, and to resolve conflicts and inconsistencies in the testimony of any one witness as well as the testimony of different witnesses. Austin Fire Ins. Co. v. Adams-Childers Co., Com.App., 246 S.W. 365.

The jury is not only the judge of the facts and circumstances proven but may also draw reasonable inferences and deductions from the evidence adduced before it.

In view of plaintiff’s uncertainty as to whether or not defendant’s car was stopped when she first observed it, the jury was justified in finding that she was negligent in proceeding without again observing the defendant’s car. It is a reasonable inference that had she looked again, or continued to look after first seeing defendant’s car, she would have seen defendant’s approach onto the Highway and could have reduced her speed or otherwise have avoided the accident.

The fact that plaintiff had the right of way did not excuse her from exercising ordinary care for her own safety. Although not required to anticipate negligent or unlawful conduct on the part of others, she was not entitled to close her eyes to that which was plainly visible and which would have been observed by a person of ordinary prudence similarly situated. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273.

The points of error are overruled and the judgment of the trial court is affirmed.

Affirmed.


author: DENTON, Chief Justice.

text:
    Mrs. Claudia WESTERMAN v. VERNON INDEPENDENT SCHOOL DISTRICT.
    No. 7099.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 19, 1962.
    R. D. Oswalt, Vernon, for appellant.
    C. L. Chance, Austin, for appellee.
   DENTON, Chief Justice.

The Vernon Independent School District sued Claudia Westerman for delinquent ad valorem taxes on real property owned by her for the years 1946 through 1959. This property consisted of two houses located on two adjoining lots in the City of Vernon. The State of Texas, Wilbarger County, and the City of Vernon were impleaded as party defendants, but their claims were settled prior to judgment, hence they are not parties to this appeal. The trial court entered judgment non obstante veredicto for the school district and the defendant has perfected this appeal.

According to the record, the school district assessed real property on the basis of 40 per cent of the reasonable cash market value. Appellant makes no objection to this policy or method of assessment, but is contending that the valuation placed on her property was unfair and was not uniform and equal to other comparable property located within the school district. We are therefore not called upon to determine the validity of the tax system used by appellee, but rather to decide if the system was improperly applied to the property belonging to appellant. The school district made out a prima facie case of establishing the validity of the assessed valuations by introducing a certified copy of the official records into evidence. Appellant’s property was assessed at a value of $2600.00 for tax purposes, and the jury found the fair taxable value to be $2200.00. Upon proper motion the trial court entered judgment non obstante veredicto in favor of the appellee school district.

Upon the appellee making out its prima facie case, appellant attempted to go forward with her burden to avoid the valuation of her property by showing other houses and lots were valued at a lower figure. These properties were located in various parts of the City of Vernon, and they consisted of different sizes, types of construction and so forth. The record reveals that appellant had not rendered the property in question during the years involved here with the school district, and no protest had ever been made of the action of the board of equalization.

It is well settled that the assessment of property for tax purposes is a quasi-judicial function of boards of equalization, and that no attack on such valuations fixed by such boards will be sustained in the absence of proof of fraud, want of jurisdiction, illegality, or the adoption of an arbitrary and fundamentally erroneous plan or scheme of valuation. State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569; State v. Houser, 138 Tex. 28, 156 S.W.2d 968; Druesdow v. Baker (Com.App.) 229 S.W. 493, opinion adopted. It is also settled that when such a board’s action is attacked it will be presumed that the board discharged its duty according to law and acted in good faith. Zachary v. City of Uvalde (Com.App.) 42 S.W.2d 417; Lubbock Hotel Co. v. Lubbock Independent School Dist. (Civ.App.) 85 S.W.2d 776 (no writ history). Appellant has neither pleaded nor attempted to prove fraud, want of jurisdiction, or an illegal or erroneous plan of valuation.

Although a grossly excessive valuation has been held to be sufficient to establish fraud or illegality so as to render the valuation fraud (French Independent School Dist. of Jefferson County v. Howth, 134 Tex. 211, 134 S.W.2d 1036), no such excessiveness is present in the instant case. It has also been held that where a valuation fixed by a board of equalization is attacked on grounds of discrimination, as is here asserted by appellant, it is not sufficient to show, comparatively, that in other isolated instances property of equal value as the property in question was valued at less. Dallas County v. Dallas Nat. Bank, 142 Tex. 439, 179 S.W.2d 288; State v. Whittenburg, supra.

Even though it may be assumed that the ad valorem tax system used by appellee was invalid, which is not contended and we do not so find, the tax payer must show the system worked to his substantial injury. State v. Whittenburg, supra; State v. Federal Land Bank of Houston, 160 Tex. 282, 329 S.W.2d 847; Doneghy v. State (Civ.App.) 334 S.W.2d 506 (refused n. r. e.). Appellant’s pleadings and proof do not raise this question. We therefore conclude appellant has totally failed to sustain her burden in an effort to avoid the valuation assessed against her property.

We are therefore of the opinion, and so hold, the trial court properly entered a judgment non obstante veredicto in favor of the appellee. The judgment of the trial court is affirmed.


author: ..PALMORE, Judge..

text:
    Daniel BENTLEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 23, 1962.
    Stanley R. Hogg, Whitesburg, for appellant. , ■
    John B. Breckinridge, Atty. Gen., Martin Glazer, Asst.Attjt Gen.,, for appellee.
   ..PALMORE, Judge..

’ Having shot his wife, hppellant was convicted under an' indictment for malicious shoótíng and wounding and sentenced to 10 years in prison. KRS 435.170. 'He claims prejudicial error in the trial court’s failure to' instruct on the so-called common law offense of wounding by the reckless, wanton or grossly careless handling of a gun.

The wife’s version of the affair was' that during the course of a brief argument' in which he slapped her and 'she retaliated in kind he said, “I’ll kill you for that,” and then picked, up a shotgun, proceeded to load it, and pointed.it toward her. She reached out and tipped the barrel upward as the gun fired. The charge entered her shoulder.' His story was that it was the wife who picked up and had possession of the shotgun, and that it accidentally fired as he tried to wrest it from her.

The court instructed on the principal of-' fense, malicious shooting and wounding (KRS 435.170), the lesser offense of malicious shooting and wounding in sudden heat and passion or in a sudden affray (KRS 435.180), and the defenses of accidental' shooting and self defense.

In the case of Balee v. Com., 1913, 153 Ky. 558, 156 S.W. 147, a shooting and wounding took place under such circumstances that a jury might well have found that it was not intentional, but resulted from gross negligence. The trial court did not instruct on any theory of accident, whether reckless or otherwise. In reversing, this court said that if “the shooting was not malicious, but the result of the wanton, reckless, or grossly careless handling of the pistol, the offense * * * is punishable at common law with fine and imprisonment,” and directed that on another trial an instruction to that effect be given. Cited, however, in support of this proposition were cases of homicide, not wounding.

At common law an intentional wounding, by shooting or otherwise, was an assault and battery. KRS 435.170 and 435.-180 are a statutory reclassification of certain types of assault and battery. We do not find that negligent wounding, as such, was a crime at common law unless the defendant’s conduct was so wanton and in disregard of the probable consequences to others that it was considered to be wilful, in which event it was an assault and battery. Wharton’s Criminal Law § 339, Vol. 1, pp. 686-687; Roberson, § 1107, p. 1329. (By the same token, one who fires a shot into a crowd of people, not actually intending to injure anyone, may nevertheless be found guilty'of wilful murder. Hill v. Com., 1931, 239 Ky, 646, 40 S.W.2d 261, 262. See also Holmes, The Common Law, pp. 55, 56.) “Gross negligence” has been recognized as less culpable than “reckless and wanton” conduct. Marye v. Com., Ky.1952, 240 S.W.2d 852. Nevertheless, at least since the. Balee case, wounding through gross negligence has been considered a common law: misdemeanor in Kentucky. See Denny v. Com., 1928, 225 Ky. 158, 7 S.W.2d 1061; McCown v. Com., 1933, 250 Ky. 574, 63 S.W.2d 601; Sumpter v. Com., Ky.1952, 251 S.W.2d 852; Small v. Com., Ky.1953, 257 S.W.2d 906. The statement in Sumpter v. Com., supra, to the effect that the degrees of shooting and wounding correspond with the three degrees of homicide is not strictly accurate, however, because in this jurisdiction a homicide by “reckless and wanton” conduct falls within the second degree, voluntary manslaughter, and a homicide by “gross negligence” falls in the third, involuntary manslaughter, Marye v. Com., Ky.1952, 240 S.W.2d 852, whereas a shooting and wounding through either gross negligence or reckless and wanton conduct falls in the third, and is an assault and battery.

Failure to instruct in this case on the misdemeanor of shooting and wounding unintentionally but as the result of the appellant’s wanton, reckless or grossly careless handling of the shotgun was error, but we are of the opinion that it was not prejudicial in view of the form of the instruction on the defense of accidental shooting, which was as follows:

“If you believe from the evidence that the shot which wounded Georgia Bentley was accidentally or unintentionally fired by the defendant, and that his act was not wilful as set out in Instruction No. 1 or No. 2, then you should find the defendant not guilty.”

When the instructions embrace all three degrees of shooting and wounding' and the defense of accidental shooting as well, the instruction on accidental shooting miist contain the proviso that the act was neither wilful, as set out in the two instructions on KRS 435.170 and KRS 435.180, nor the result of the defendant’s wanton, reckless or grossly careless handling of the weapon, as set out in the instruction on that theory. JJnder the above quoted instruction, however, it was the duty of the jury to acquit unless it found the shooting to have been intentional, regardless of whether it resulted from wanton, reckless or grossly careless handling of the weapon. That was more favorable treatment than appellant was entitled to have.

The error being of no prejudice except to the Commonwealth, the judgment is affirmed.


author: WILLIAMS, Judge.

text:
    Cora SLONE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 23, 1962.
    Woodrow W. Burchett, Tackett & Tack-ett, Prestonsburg, for appellant.
    John B. Breckinridge, Atty. Gen., Wm. F. Simpson, Asst. Atty. Gen., for appellee.
   WILLIAMS, Judge.

The appellant, Cora Slone, was tried in the Floyd Circuit Court for the crime of willful murder. She was convicted of voluntary manslaughter and sentenced to two years in the State penitentiary. This appeal is prosecuted from the judgment pronounced upon the verdict.

The appellant testified that she, her husband and her 12-year-old son were in their home on the night of June 11, 1960, and that her husband had been drinking heavily. He began making preparations to leave the house and intended to take a pistol with him. Knowing this the appellant took the pistol from a table drawer and put it in her dress pocket. When she refused to relinquish possession of the pistol her husband advanced upon her and brandished a boy scout ax. She retreated but he threw the ax at her and struck her on the mouth, causing a severe laceration. He then began slapping her on the head, whereupon she lost her senses and fired the pistol. The first shot went astray, but the second shot struck her husband in the abdomen. He died in a hospital approximately two weeks later.

The appellant rests her case on the ground that the verdict is not sustained by the evidence. It is argued that the case for the prosecution was based upon a dying declaration which was incompetent and which was so absurd and in conflict with the physical facts as to be wholly unbelievable. However, there was other evidence that appellant shot her husband and had previously threatened to kill him. As a matter of fact appellant testified that the gun was in her possession during the struggle and one of her neighbors testified that appellant said she had shot her husband. That testimony was sufficient to take the case to the jury. It was said in Shepherd v. Commonwealth, 236 Ky. 290, 33 S.W.2d 4:

“Furthermore, the killing of a human being with a deadly weapon raises an inference of malice and casts upon the defendant the burden of excusing his act, and the jury, under all the evidence, is the tribunal fixed by law to de-' termine the guilt or innocence of the accused.”

Testimony concerning the dying declaration was given by James Slone, who talked to deceased in the hospital,- and was told by deceased that he was not going to live. His statement follows:

“He said she shot him in the chest and then shot the other shot in the ceiling, and he said he throwed a coca cola bottle after she shot the shot in the ceiling and he didn’t know he was hurt too bad and walked in there and laid down on the bed.”

James Kendrick also stated that while deceased was in the hospital he told him he was not going to get well, and then described the altercation as follows:

“He said he laid down and tried to rest and he got up and got him a drink and he laid back down and tried to rest .and couldn’t do any good and he got up and started putting his clothes on and he said he put on his pants and his undershirt and I believe his socks and started to put his shoes on and heard Cora come to the door and she asked him where he was going and he said he was going out awhile and she told him he wasn’t going out and he said: ‘You know my temper,’ and he said: ‘When she said that, I raised up and when I raised up a blaze of fire went through my body,’ and he said he fell back over in the bed and he said he could remember some things but that was as far as he would go.”

It is true the facts as deduced from the dying declaration differ from the facts as testified to by appellant and her witnesses. That does not render the dying declaration incompetent. Upon receipt of conflicting evidence it is within the province of the jury to determine which witnesses to believe. Higginbotham v. Commonwealth, 291 Ky. 463, 165 S.W.2d 19. The facts deduced from the dying declaration were sufficient to uphold the verdict if the dying declaration was properly admitted.

The admission of a dying declaration is an exception to the general rules of evidence. It must appear that the declaration was made in extremity, when the person was at the point of death, and when every hope of recovery was gone, every motive to falsehood was silenced and the mind was induced by the most powerful considerations to speak the truth. It is not absolutely necessary that the declarant express in so many words his apprehension of such death. It is enough if it satisfactorily appears in any mode that the decía-ration was made under that sanction. Petty v. Commonwealth, 178 Ky. 483, 199 S.W. 20. Only the acts done and statements uttered at the time of the final encounter, the res gestae in a strict sense, are admissible as a dying declaration. Caudill v. Commonwealth, 220 Ky. 191, 294 S.W. 1042. James Slone and James Kendrick affirmatively testified that decedent stated that he was not going to live. Repetition of a statement made by him detailing the events that took place at the time the shooting occurred was competent.

There was ample evidence submitted to the jury to sustain the verdict.

Judgment affirmed.


author: WADDILL, Commissioner.

text:
    Luther LOWERY, Appellant, v. BLUE DIAMOND COAL COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 23, 1962.
    Doyle & Doyle, Harlan, for appellant.
    James Sampson, Harlan, for appellees.
   WADDILL, Commissioner.

The appeal is from a judgment affirming an order of the Workmen’s Compensation Board which dismissed appellant’s claim seeking compensation for disability due to silicosis. Dismissal was based on a finding that appellant did not give timely notice under KRS 342.316(2).

Appellant worked in appellee’s mines from 1933 to June 25, 1957, when the mines ceased operations. During 1953 appellant was told by a Doctor Ball that his difficulty in breathing was probably caused by the presence of rock dust in his lungs. In that same year appellant observed that he tired easily and that his physical capacity to perform arduous labor was reduced. Upon his request he was examined by two physicians who were regularly employed by the appel-lee coal company. One of these doctors diagnosed appellant’s complaint as attributable to asthma, the other concluded he was suffering from ulcers but was of the opinion that he could continue working if he felt like it. Appellant continued to work for appellee hut was permitted to perform duties which required less physical effort than those he had previously performed in the mines.

Appellant’s physical condition did not improve and he again sought medical advice. On July 11', 1957, he was advised by a lung specialist that he had contracted silicosis. Appellant immediately notified appellee’s office manager of this diagnosis and on September 9, 1957, he filed an application with the Workmen’s Compensation Board seeking compensation benefits.

The Board found that appellant had not been able to perform heavy work in appel-lee’s mines since 1953 because of shortness of breath and that the information obtained from Doctor Ball about the rock dust in his lungs was sufficient to apprise him of his disability from an occupational disease. The Board concluded that appellant’s failure to give appellee prompt notice that he had contracted an occupational disease in 1953 was fatal to his claim.

Prior to August 1, 1956, KRS 342.316(2) required an employee to give his employer notice of his disability as soon as practicable after the employee had knowledge that he had contracted an occupational disease. Therefore, the question arises whether the Board erred in determining that the information given to appellant by Doctor Ball in 1953 was sufficient to impart knowledge to appellant that he had contracted an occupational disease.

. The information given by Doctor Ball cannot reasonably be held to have placed appellant on notice that he had contracted an occupational disease. While it did alert him to seek further medical opinions from physicians employed by the appellee company (who did not diagnose his condition as silicosis), it does not support the Board’s finding that appellant knew he had an occupational disease upon being told that he had rock dust in his lungs. Since we have determined as a matter of law that appellant was not required by KRS 342.316(2) prior to the 1956 amendment to give appel-lee notice under these circumstances, the Board erred in dismissing the application for compensation on that ground.

The judgment is reversed with directions to remand the case to the Workmen’s Compensation Board for further proceedings not .inconsistent with this opinion.


author: STEWART, Chief Justice.

text:
    Lewis C. (Fats) TREADWAY, Appellant, v. Francis G. MILLER, Appellee.
    Court of Appeals of Kentucky.
    Feb. 23, 1962.
    H. M. Shumate, Shumate & Shumate, ■Irvine, for appellant.
    Darrell B. Hancock, James R. Richardson, Fowler, Rouse, Measle & Bell, Lexington, for appellee.
   STEWART, Chief Justice.

On April 8, 1961, appellee, Francis G. Miller, filed with the Estill County Court Clerk his declaration as a candidate for the Republican nomination for Mayor of Irvine, a fourth-class city, subject to the Republican primary election to be held on May 23, 1961. He had no opposition, so he became the nominee of his party without the placement of his name on the ballot.

Appellant, Lewis C. (Fats) Treadway, was certified to be the Democratic nominee. In the general election held on November 7, 1961, appellee received 741 votes to 670 for appellant. The latter then filed this contest, contending appellee’s election should be set aside because he failed to file his nomination papers not less than 45 days before the day fixed by law for the holding of primary elections, as required by KRS 86.225 which governs primary elections in cities of the fourth class.

The trial court dismissed the action, aft-er making the following findings:

1. Appellant, as the nominee for mayor on the Democrat ticket, was without authority to challenge the certificate of nomination issued to appellee as the Republican candidate for the office, since the certificate was regular on its face.

2. Under KRS 446.030(1) and KRS 86.225, the day of the primary must be excluded in counting the time but the day of filing must be counted as one day and part of the time; and, using this rule, appellee filed forty-five days before the day of the primary election.

This appeal is from these two rulings. However, we shall give consideration only to the second holding of the trial court, namely, that appellee’s declaration was filed in conformity with the applicable provisions of law. We believe the determination of this point will dispose of this appeal.

KRS 86.225 requires a candidate for any elective city office in a fourth-class municipality operating under the councilmanic form of government, which Irvine does, to file nomination papers with the county court clerk “not less than forty-five days before the day fixed by law for the holding of primary elections.” KIRS 446.030(1), which has to do with the computation of time and which must be taken into account in construing KRS 86.225, reads in part:

“If a statute requires an act to be done a certain time before an event, the day on which the event occurs may be included in computing the time, but if the act is required to be done a certain time before the day on which an event occurs, the day on which the event occurs must be excluded; in either case the day on which the act is done may be counted as one day and part of the time. * * * ” (Emphasis added)

In Duncan v. Queenan, Ky., 259 S.W.2d 60, in its interpretation of KRS 119.080 and 118.130(2), which statutory provisions deal with the filing time of nomination papers and certificates of nominations to fill vacancies, as to candidates for certain offices, this Court held the day of the primary election should be included in the count, under the language of KRS 119.080, and excluded from the count, under the language of KRS 118.130(2). In neither instance was the day of filing reckoned in connection with the forty-five-day period involved there. The method of calculation in that case disregarded the above underscored portion of KRS 446.030(1), which plainly states that the day on which the act is done (the day of filing), in either of the alternatives mentioned in the subsection, “may be” counted as one day and part of the time.

In the case at bar, pursuant to KRS 86.-225 the day of the primary election must be omitted in computing the forty-five-day period, since this statute provides that the candidate must file his declaration not less • than forty-five days before the day fixed by law for the election. In the count back • from May 22nd, which was the day before the primary election in question, the forty-fifth day fell on April 8th, the date on • which appellee filed his declaration. Relying upon Duncan v. Queenan, supra, appellant contends forty-five “full” days were not embraced within this span of time, with the result that any nomination papers filed after the commencement of the forty-fifth day would be filed too late. That case, in fact, held the county court clerk would not be required to accept nomination papers after midnight of the forty-sixth day of the period of time for filing.

This holding runs counter to the phraseology of KRS 446.030(1) which declares in no uncertain terms that the day on which the act is done (the day of filing) may be enumerated as one day and part of the time. Thus under this provision the privilege is extended to the candidate of including the day of filing in the forty-five-day period. KRS 446.030(1) controls statutes which fix time limits by providing a method of computing time. It follows that appellee’s nomination papers were filed in time.

To the extent that Duncan v. Queenan, supra, conflicts with the conclusion we have reached in this case it is overruled.

Wherefore, the judgment is affirmed.


author: CLAY, Commissioner.

text:
    The UNITED ELECTRIC COAL COMPANIES, Appellant, v. Jesse BROWN et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 23, 1962.
    Nichols & Nichols, Madisonville, for appellant.
    Vert Ct Fraser, Province, for appellees.
   CLAY, Commissioner.

Appellee plaintiffs recovered a $5,000 judgment for alleged permanent damage to their farm which they claimed was caused .by the discharge of “copperas” water from appellant defendant’s strip mining operation.

In 1952 plaintiffs purchased a 286 acre farm in Hopkins County. Its most productive part consists of about 70 acres of bottom land traversed by Buffalo Creek. Several times a year this bottom is flooded by the overflow. A mile or more above the farm, in the vicinity of the headwaters of the creek, defendant had for many years been engaged in the strip mining of coal.

According to plaintiffs’ evidence, their tillable land produced good crops in the years 1953, 1954 and 1955. Plaintiffs claim that in 1956 the fish in the stream disappeared, the cattle would not drink the water, and the land would not, produce a good crop. No alteration in defendant’s operations was shown to have created a change of conditions. The situation had not improved when this suit was filed in 1959.

There was testimony the water in the creek, or at least the sediment, had a reddish color, and an attempt was made to trace the condition of the stream to the seepage from one or more of defendant’s dump pits. There was some evidence of dead trees, bushes and other vegetation on or near the stream in the vicinity of the mining operation.

Plaintiffs’ witnesses described the water in the creek as being “copperas” water. As if there were some magic in this descriptive term, plaintiffs did not introduce any evidence of the chemical properties of the water, or the nature and extent of' its contamination, if any, nor did they attempt to show that it contained substances injurious to land.

Defendant contends it was entitled’ to a directed verdict because plaintiffs’ proof was insufficient to establish (1) that the water in Buffalo Creek was contaminated by it, or (2) that the water, if contaminated, was injurious to their land, or (3) that the damage was permanent. While there may have been adequate evidence with respect to item (1), showing that to some extent Buffalo Creek had been contaminated by seepage from defendant’s pits {along with seepage from other pits not owned or controlled by defendant), we find a fatal deficiency in the evidence with respect to items (2) and (3).

As indicated above, there was no. direct evidence that the water flowing in Buffalo Creek contained chemical properties injurious to plaintiffs’ land or crops, nor was there any direct evidence that the injuries, if any, were of a permanent nature. Plaintiffs’ case is built entirely on circumstantial evidence and our question is whether or not it was sufficient to present a jury issue of liability.

A civil claim may be proved by circumstantial evidence but it must do more than suggest liability as a matter of conjecture, surmise or speculation. Steely v. Hancock, Ky., 340 S.W.2d 467. A fact is not proved by circumstantial evidence if it is merely consistent with such fact. Byland v. E. I. Du Pont De Nemours Powder Co., 93 Kan. 288, 144 P. 251, L.R.A.1915F, 1000; Wilbur v. Emergency Hospital Ass’n, 27 Cal.App. 751, 151 P. 155. In other words, the circumstantial evidence must go far enough to induce a reasonable conviction that the facts sought to be proved are true and must tend to eliminate other rational theories. 20 Am.Jur., Evidence, Section 1139 (page 1043); Burgess v. Small, 151 Me. 271, 117 A.2d 344, 51 A.L.R.2d 1149. As we said in Steely v. Hancock, Ky., 340 S.W.2d 467, 470, with regard to certain physical evidence (which was clearly circumstantial), “it must substantially support a’definite conclusion, excluding all reasonable conflicting hypotheses”. See also Esso Standard Oil Co. v. Stewart, 190 Va. 949, 59 S.W.2d 67, 18 A.L.R.2d 1319.

With these principles in mind, we reexamine the plaintiffs’ evidence. The sum and substance of their proof was that some reddish substance had seeped from one or more of defendant’s pits.; that Buffalo Creek at times had a reddish or yellowish color, or a red sediment on the bottom, that fish had disappeared from the creek, that plaintiffs’ cattle refused to drink the water, and that since 1956 the festtesn land failed to produce crops as bountifully as it had for three years prior thereto. Why the fish left the stream or the cattle refused to drink the water we do not know. In any event, plaintiffs sought damages for permanent injury to their land and our question is whether or not the above facts are sufficient to induce conviction in the minds of reasonable men that defendant’s wrongful acts caused plaintiffs such damage. See Wadkins’ Adm’x v. Chesapeake & Ohio Railway Co., Ky., 298 S.W.2d 7.

We may assume the facts shown by the plaintiffs are consistent with a claim of injury. On the other hand, there are additional facts in the case either admitted by the plaintiffs or proved beyond question that offer a reasonable, if not more probable, explanation of the apparent loss of fertility of plaintiffs’ soil. The tillable land in the bottom was subject to constant flooding, which was shown not only to affect its fertility but at times actually prevented plaintiffs from harvesting their crops. In addition, it was established by witnesses for both plaintiffs and defendant that this bottom land is deficient in lime, potash and phosphorus content. It was also shown that the soil is of sandstone origin, which tends to make it acid. There are in this record many explanations of the loss in productivity of plaintiffs’ land other than injurious substances, if any, in Buffalo Creek.

In Bryan v. Gilpin, Ky., 282 S.W.2d 133, 135, we observed:

“It may be said that before a case is submitted to a jury on circumstantial evidence the proven facts must justify a fair inference of liability. An inference of liability is not a fair one if other inferences of non-liability are equally as reasonable.”

Considering all the circumstances shown by this record, a reasonable inference of nonliability is equally as strong as, if not more plausible than one of liability. Therefore the plaintiffs failed to carry the burden of proof and the jury should not have been permitted to speculate. McAtee v. Holland Furnace Company, Ky., 252 S.W.2d 427; Luckett v. Adolphus Cleaners, Ky., 262 S.W.2d 191; Kentucky Power Company v. Combs, Ky., 305 S.W.2d 105.

In our opinion the trial court should have directed a verdict for defendant, and not having done so, should have sustained its motion for a judgment notwithstanding the verdict. It is unnecessary to consider other aspects of the case.

The judgment is reversed with directions to enter judgment for defendant.


text:
    Wanda Jean GAMBLIN, Appellant, v. Darold GAMBLIN, Appellee.
    Court of Appeals of Kentucky.
    Feb. 23, 1962.

      L. B. Weir, Madisonville, for appellant.
    Franklin & Franklin, Carroll S. Franklin, Madisonville, for appellee.
   WILLIAMS, Judge.

The appellant, Wanda Jean Gamblin, and the appellee, Darold Gamblin, were divorced in November 1957. Custody of their two children, who were four and two years old at that time, was granted to Wanda Jean. A property settlement agreement between the parties was incorporated in the divorce judgment. Darold got a small farm and an automobile and Wanda Jean got the household furniture. In addition, Dar-old agreed to pay $30.00 per month for support of the children. A few months after the divorce was granted the furniture was repossessed by the seller and Darold was ordered by the court to pay its value to Wanda Jean at the rate of $20.00 per month. On several occasions Darold did not make the support payments as they came due and it became necessary to serve garnishment process upon his employer. In 1958 Wanda Jean moved the court to increase the support payments, which the court refused to do. In the meantime Darold married again and purchased a new automobile. He is obligated to pay $112.00 per month to a bank on money borrowed to purchase the automobile. In addition, he has incurred other recurring expenses occasioned by his second marriage. Wanda Jean was working at the time of the divorce, but quit because of ill health. Now, on occasion, she keeps children in her home for a fee.

This motion to increase support payments was made in 1960. In January and February of that year Darold averaged about $400.00 per month by virtue of his employment as a coal miner. One of the children was in school. The chancellor was asked to increase the support payments to $60.00 per month for each child. After considering the circumstances the chancellor increased the payments to $30.00 per month for each child. Wanda Jean now complains that that was an insufficient increase and asks that the chancellor’s decision be reversed.

The determination of the amount of support is a matter which rests in the sound discretion of the chancellor. Deference is to be given the chancellor, who is presumed to have considered all the circumstances in the case and ascertained the needs of the one' as well as the ability to pay of the other. His decision will not be disturbed unless it is clearly erroneous. Petrie v. Petrie, Ky., 262 S.W.2d 182; Combs v. Combs, Ky., 314 S.W.2d 689.

Had we been making the determination at the outset we possibly would have awarded a greater amount for the support of each of these children. A father s first duty is the support of his children. They are to be given preference over new automobiles and new wives. We note that over a year has elapsed since this motion was brought before the chancellor. In the meantime conditions doubtless have changed. The second child should be in school by this time, and the overwhelming debts to which Darold subjected himself should be substantially reduced. Such being the case, it is in order to make a new motion seeking a reasonable amount for the support of the two children.

Judgment affirmed.