author: MURRAY, Chief Justice.

text:
    CULLIGAN SOFT WATER SERVICE, Appellant, v. The STATE of Texas, Appellee.
    No. 14297.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 25, 1964.
    Rehearing Denied Dec. 30, 1964.

      Clemens, Knight, Weiss & Spencer, Theo. F. Weiss, F. N. Welmaker, San Antonio, for appellant.
    Waggoner Carr, Atty. Gen., T. B. Wright, Watson C. Arnold, F. William Colburn, Asst. Attys. Gen., Austin, for appellee.
   MURRAY, Chief Justice.

This is an eminent domain proceeding brought by the State of Texas against Culligan Soft Water Service to condemn, for highway purposes, a leasehold interest in certain lands located in Bexar County and fully described in the pleadings. The proceedings were instituted on October 14, 1958; special commissioners were appointed, and made their award on November 25, 1958, in the sum of $12,003.00. The State timely filed its objections to the amount of the award on December 5, 1958, and on May 14, 1959, deposited the amount of the award in the registry of the County Court, subject to the order of condemnee. On June 4, 1959, condemnee filed a pleading in the County Court, bearing the style and number of this cause, asking the court to allow it to withdraw the award without prejudice to its right to contest the case in the future, which permission was granted by a written order of the court. Thereafter condemnee withdrew the award. No citation was issued or served on condemnee,' nor was anything further done in the case until, on February 28, 1963, counsel for condemnor wrote to counsel for condemnee asking for an agreed setting of the case for May 13, 1963. Thereafter, settings for May 13, 1963, and August 26, 1963, were passed for the convenience of condemnee and its counsel. Citation was issued on May 15, 1963, and on September 19, 1963, condemnee filed a motion to dismiss the cause on the grounds of abandonment. This motion was heard and overruled by the court on September 30, 1963, and on that same day the case went to trial before the court and resulted in a final judgment decreeing to the State the leasehold interest in the land sought by it, fixing the amount of condemnee’s damages at $8,-000.00, awarding a judgment against con-demnee in the sum of $4,003.00, being the amount that the deposit, withdrawn by con-demnee, exceeded the damages, and containing the usual provisions of a judgment of this nature. From that judgment Culli-gan Soft Water Service has prosecuted this appeal. It is stated hy appellee that the appeal is only from the order overruling the motion to dismiss, but this is not true. Such an order is interlocutory, and no appeal can be taken from it.

There is no complaint as to the trial on the merits. The only complaint made by appellant relates to the action of the trial court in overruling appellant’s motion to dismiss the cause on the grounds that it has been abandoned by condemnor.

The first thing that occurs to us is whether this is such a cause of action that should be dismissed in its present condition, for want of prosecution. If the trial court had granted the motion it would have created a confused situation. The State had filed its objections to the award of the commissioners, thus transforming the theretofore administrative proceeding into a judicial proceeding. Such action had the further effect of wiping out entirely the award of the commissioners and preventing any judgment from being entered, based upon such award. This is made plain by Sections 6 and 7 of Art. 3266, Vernon’s Ann. Civ.Stats. 22 Tex.Jur. p. 372, § 259, p. 385, § 271. It is only where no objections are filed under the provisions of Sec. 6 that Sec. 7 comes into operation. 22 Tex. Jur.2d p. 366, § 252. The award of the commissioners neither divests the landowner of title to his property, nor renders the condemnor liable for the damages assessed. These things can only be done by a decree of the County Court. 22 Tex.Jur.2d p. 371, § 258. When objections to the award of the commissioners have been filed by either party under the provisions of Sec. 6, supra, the findings of the commissioners are wiped out and a trial de novo is contemplated and required. Milam County v. Akers, Tex.Civ.App., 181 S.W.2d 719, error ref. Under the provisions of Art. 3268, Vernon’s Ann.Civ.Stats., the State was authorized to deposit the amount of the commissioners’ award in the County Court, subject to the order of the condemnee, City of Houston v. Biggers, Tex.Civ.App., 380 S.W.2d 700; Nichols, The Law of Eminent Domain, 2d Ed., § 26.42, p. 192, and take possession of the land sought to be taken, subject to further litigation, and the con-demnee could accept this sum so tendered or deposited in the court, without prejudice to its right to further litigation in the cause, and under such circumstances the State holds the land on a temporary basis, and condemnee holds the money on the same temporary basis, subject to a final judgment rendered upon a trial de novo. Thomas v. Housing Authority of City of Dallas, 153 Tex. 137, 264 S.W.2d 93; City of San Antonio v. Astoria, 67 S.W.2d 321.

If the trial court had granted appellant’s motion to dismiss the cause, it would have left the parties where they were before the condemnation proceedings were begun, with the exception that the State would be in temporary possession of the land, without any title, and the condemnee would be in possession of the award on a temporary basis, without any permanent right to the money. The creation of such a situation is unthinkable.

It has been held that the condemnor who has deposited the money and taken the land under the provisions of Art. 3268, supra, will not be permitted to take a voluntary non-suit, even if he desires to do so, unless he abandons the condemnation project and returns the land to the con-demnee. Brazos River Conservation & Reclamation Dist. v. Allen, 141 Tex. 217, 171 S.W.2d 847; Thompson v. Janes, 245 S.W.2d 718, aff. 151 Tex. 495, 251 S.W.2d 953; Kansas City M. & O. R. Co. v. Kirby, 150 S.W. 228, error ref. If the condemnor will not be permitted to take a voluntary non-suit, he should not be required to take an involuntary one.

It occurs to us that where, as here, the State has instituted eminent domain proceedings, the commissioners have fixed the amount of the award to be paid to the condemnee, the State has filed its objections to the amount of the award, within the time allowed by law, has deposited the amount of such award in the County Court, subject to the order of condemnee, has taken the 2and and used it, presumably for highway purposes, and condemnee has withdrawn such award from the registry of the court, it could hardly appear that the State has abandoned its suit, unless and until it fully restores the land to the con-demnee, receives back the amount of the deposit, and entirely abandons the project for which the proceedings were instituted. There is nothing herein to indicate that the State intends to restore the land to condemnee and abandon its project, or that the condemnee intends to return the money it has withdrawn from the registry of the court.

Under such circumstances it would be improper to permit the State to dismiss the cause, much less for the court to require the State to do so. For the reasons pointed out, a condemnation proceeding pending in the County Court is different in many respects from an ordinary civil suit and cannot well be governed by the ordinary rules of dismissal for abandonment applied to ordinary civil actions.

Appellant made the motion to dismiss, and the burden was upon it to show by the evidence that the cause should be dismissed for want of prosecution. This motion was addressed to the judicial discretion of the trial court. Bevil v. Johnson, 157 Tex. 621, 307 S.W.2d 85; Howeth v. Davenport, Tex.Civ.App., 311 S.W.2d 480. The trial court overruled the motion to dismiss, and unless the court abused its discretion in doing so, its action should not be disturbed. Unless the evidence shows conclusively as a matter of law that the State had abandoned its cause of- action, the trial court did not abuse its discretion.

Appellant, by its two points, contends that the trial court erred because the State did not introduce evidence showing that it had not in effect abandoned its cause. The rule is to the contrary. The condemnee having made the motion to dismiss on the grounds of abandonment, had the burden of establishing the facts alleged in the motion, and unless condemnee offered evidence conclusively showing abandonment, the court did not err in overruling the motion. If condemnee offered evidence tending to establish abandonment, it only raised a fact issue addressed to the judicial discretion of the court, and its ruling thereon will not be disturbed.

As to the State’s failure to cause citation to issue, condemnee waived the necessity for the issuance of a citation by filing a pleading in the cause for an order of the court to permit it to withdraw the money deposited in the court without prejudice to its right to proceed with the suit. Rule 121 Texas Rules of Civil Procedure; Investors Diversified Services, Inc. v. Bruner, Tex.Civ.App., 366 S.W.2d 810.

It is true that condemnee could have withdrawn the deposit without appearing, but it elected to file its written pleadings in the case and ask for an order of the court, and by doing so entered its appearance in the case. In filing this pleading under the style and number of the case, condemnee demonstrated that it had notice of the pending suit. 22 Tex.Jur. p. 377, § 263.

Condemnee filed no objections to the award, and the only objection filed by the State related to the amount of the award, therefore, the only matter to be determined in the case was the amount of the damages condemnee had suffered by reason of the taking, and especially is this true where the condemnee has withdrawn, from the registry of the court, the deposit made by the condemnor. 22 Tex.Jur., p. 380, § 266.

The trial court properly overruled the motion to dismiss, and accordingly the judgment is affirmed.


source: Caselaw Access Project

author: DENTON, Chief Justice.

license: Public Domain

text:
    Billy Glynn WILLIS, Appellant, v. CITY OF LUBBOCK, Appellee.
    No. 7420.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 7, 1964.
    Rehearing Denied Jan. 4, 1966.
    James F. Moore, Lubbock, for appellant.
    Fred O. Senter, Jr., City Atty., Don Reed, Asst. City Atty., Lubbock, for appel-lee.
   DENTON, Chief Justice.

This suit was brought to recover benefits of accumulated vacation leave under the Civil Service Act, Article 1269m, Section 26(a), Vernon’s Ann.Civ.St. Billy Glynn Willis was a policeman for the City of Lubbock from March 1, 1958, until he voluntarily resigned on January 15, 1963. Subsequently the City paid Willis a lump sum of $713.17 as terminal pay which was based on thirty-four and one-fourth (34J4) days accumulated sick leave, fifteen (15) days accumulated vacation leave, plus longevity pay. Willis brought suit for an additional sum contending the City did not correctly calculate his salary in determining the total severance pay. The trial court, without a jury, held the City had miscalculated the pay due for accumulated sick leave but denied the relief sought as to accumulated vacation pay. Neither the City nor Willis has appealed from that portion of the judgment dealing with the sick leave benefits. This appeal concerns only the action of the trial court in refusing Willis additional vacation pay.

It was stipulated Willis had accumulated fifteen (15) days of vacation time, none of which had been taken. At the time Willis terminated his employment his base salary was $385.00 per month; The City computed his accumulated vacation pay by dividing the $385.00 monthly basic salary by. thirty (30) days and multiplying this -figure, by fifteen (15) days. It is appellant’s contention his accumulated vacation -pay should have been calculated by determining the daily salary on. the. basis of the -.number of working days included in a forty-bour week. Willis, along with other policemen, worked a regular forty-hour week.

Section 26(a) of Article 1269m reads as follows:

“Vacations; accumulations of vacation leave
“Sec. 26(a). All firemen and policemen in the classified service shall earn a minimum of fifteen (15) working days vacation with pay in each year. In computing the length of time during which a fireman of policeman may be absent from work for the vacation provided by this Section, only those calendar days during which the member would be required to work if he were not.on vacation shall be counted as. vacation. days. Vacation leave may not be accumulated from year to year, except as approved by the governing body of the city.”

Neither Section 26(a) or any other section of the Civil Service Act makes a provision for accumulated vacation pay for employees who have left, the classified service. This is not true in the case of accumulated sick leave. Section 26 of the Act specifically provides for such benefit. That section provides that “In the event a Fireman .or Policeman for any reason leaves the classified service, he shall receive, in a lump-sum payment; the full amount of his salary for the period of his accumulated sick leave, provided that such payment shall not be based upon more than ninety (90) working days of accumulated sick leave.” The Act makes no such provision for-, accumulated vacation leave, but specifically states that vacation leave may not be accumulated from year to year. We think it is the clear legislative intent that cities operating under the Civil Service statutes are not required to pay accumulated vacation pay as part of the severance or terminal pay of employees leaving the classified service. The City of Lubbock voluntarily adopted a policy of paying this vacation leave to those leaving the classified service. There being no requirement to make such payments, it follows the City’s method of calculating such payment is. not subject to judicial review. No Texas case has considered this question; however the reasoning and holding of the Supreme Court of Washington in State ex rel. Bonsall v. Case, 172 Wash. 243, 19 P.2d 927, supports our conclusion.

Appellant further complains of the failure of the trial court to allow attorneys’ fees in bringing this suit to recover a deficiency in accumulated sick leave and vacation pay. This contention is without merit. Article 2226, V.A.C.S., allowing reasonable attorneys’ fees for those suing for services rendered applies only to private corporations and does-not include public corporations such as the City of Lubbock. The City of Houston v. L. J. Fuller, Inc., (Tex.Civ.App.), 311 S.W.2d 285; City of Houston v. Howe & Wise, (Tex.Civ.App.), 323 S.W.2d 134 (Refused, NRE); Housing Authority of City of Dallas v. Hubbell, (Tex.Civ.App.), 325 S.W.2d 880 (Refused, NRE).

The judgment of the trial court is affirmed.

CHAPMAN, J., not sitting.


author: PARKER, Justice.

text:
    Ellis D. WHEELER, Appellant, v. S. E. WHITE, Appellee.
    No. 6692.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 12, 1964.
    Rehearing Denied Dec. 30, 1964.
    Adams & Browne, Beaumont, for appellant.
    Keith, Mehaffy & Weber, Beaumont, for appellee.
   PARKER, Justice.

This is a suit upon a written instrument drawn by laymen executed July 26, 1956, by the appellant Ellis D. Wheeler and the ap-pellee S. E. White. In this memorandum, for valuable consideration, White agreed to obtain $70,000.00 for Wheeler for the purpose of constructing improvements on land belonging to Wheeler described in the written contract. This loan was described as follows:

“The loan to be made by, or obtained by, Party of the Second Part for the Party of the First Part, and to be in the sum of Seventy Thousand and no/100 ($70,000.00) Dollars and to be payable in monthly installments over a term of fifteen (15) years and bear interest at a rate of not more than six (6%) per cent per annum.”

The loan was to be obtained on or before six months from the date of the contract, either from funds belonging to White or from third persons. In either event, appellant agreed to sign all necessary papers required of lender to create proper liens.

Since judgment for appellee was entered upon his exceptions to appellant’s pleadings, the substance of allegations contained in appellant’s pleadings are treated as facts herein. After the making of the contract, White assured Wheeler that he would provide the money for the new construction. At the request of White, and relying upon White’s statement the money for the loan was available, Wheeler razed the existing building and otherwise prepared for the prompt erection of a new building. Then White told Wheeler there would be no loan. White had ample funds to make the loan. Wheeler was unable to obtain a loan elsewhere. Appellant Wheeler sued White for damages as a result of his breach of the contract, the damages consisting of architectural fees of $400.00, the loss of the building demolished of a market value of $58,'500.00, and other damages amounting to $130,200.00 according to the allegations in appellant’s petition. Appellant also pleaded estoppel on the part of appellee to deny the validity of the contract, if it he indefinite in its provisions and too uncertain to he a contract, because appellee’s act in representing to appellant that the money would he forthcoming and urging appellant to make ready for the construction, was relied upon hy appellant, moving him to incur the damages sued for. In the trial court, appellee urged two exceptions, to-wit:

“SPECIAL EXCEPTION NO. 1
'“Defendant specially excepts to the whole of said petition for the reason that the same fails to state a cause of action in that the instrument sued upon is too indefinite and uncertain to authorize a judgment against the defendant for the following reasons:
“(a) The same does not contain the essential terms of a contract expressed with such certainty 'and clarity that it ■ may be understood without recourse to parol evidence to show the intention of , the parties in that the amount of the . monthly installments is not set forth.
J “(b) The same does not contain the essential elements o'f a contract with sufficient certainty to show the amount of interest due upon the obligation ‘not more than six per cent (6%) per an-‘num’ being vague, general, and indefinite, and requiring recourse to parol evidence.
' “(c) The same does not provide how and when the interest would be paid, i. e., would the interest be paid annually on the unpaid balance, or would the interest be amortized and provide.that the deferred balance be paid in unknown installments, or would the payment or interest be deferred until the last payment on principal? Thus, the said contract is not so expressed that the Court can with reasonable certainty determine what is the duty of each party and the conditions under which performance is due.
“(d) The terms of said instrument are so vague, general and indefinite, in the respects aforesaid, that it would be inequitable to carry a contract into effect where the Court is left to ascertain the intention of the parties by -mere guess or conjecture, because it might be guilty of erroneously decreeing what the parties never intended or (contemplated.
“SPECIAL EXCEPTION NO. 2
“Defendant specially excepts 'to Paragraph 7 of said petition for the reason that said paragraph and the facts therein alleged are insufficient as 'a matter of law 'to set up any ground of recovery by the plaintiff. In this connection, your defendant would show that by his plea of estoppel, plaintiff is attempting to give vitality to an otherwise Unenforceable agreement, and the allegations tendered in support thereof in such Paragraph 7 are insufficient as a matter of law to establish any ground of recovery in the premises.”

The trial -court sustained such special exceptions and granted appellant leave to amend his petition so as to. curé the defects in his third amended original petition *as were “pointed up by defendant’s special -exceptions”. Appellant declined to accept the leave granted to him by the trial court and declined to amend his petition. Thereupon, the trial -court dismissed the suit with the judgment providing that “plaintiff herein, Ellis D. Wheeler, shall take nothing from the defendant S. E. White, by reason of this suit, and the defendant S. E. White, shall go hence without day.”

Appellant’s first four points of error are as follows:

“1. Error of the court in holding that the instrument sued upon was too indefinite and uncertain to authorize a judgment against the defendant.
“2. Error of the court in holding that the written agreement sued upon did not contain the essential terms of the contract expressed with such certainty and clarity that it could he understood without recourse to parol evidence to show the intention of the parties as to the amount of the monthly installments.
“3. Error of the court in holding .that the written agreement sued upon was not sufficiently certain to show the amount.of interest due upon the obligation.
“4. Error of the court in holding that the wording of the written agreement: ‘not more than six (6%) per cent per annum’'was too vague,-general and indefinite requiring recourse to pa-rol evidence.”

Both appellant and appellee have cited the opinion of Bryant v. Clark (Tex.S.Ct.1962), 358 S.W.2d 614, 616, in which;.

“The contract provides for the payment of the -deferred balance of the -purchase price of the property in fifteen annual installments, but it contains .no provision with respect to the amount of the several installments. ⅜ * * ”

The Supreme Court held it could not write the contract for the parties by saying'that it was reasonable that the fifteen annual installments were to be paid in equal amounts since it was not otherwise provided.

Also in Bryant v. Clark, supra, the contract provided for six per cent (6%) interest on the deferred balance, but did not provide when the interest was payable or in what amounts. The Supreme Court held this provision was too uncertain to be enforced.

Appellant’s points 1, 2, 3 and 4 are overruled.

Appellant’s point 5 is as follows:

“Error of the court in holding that the allegations of estoppel by Wheeler are insufficient as a matter of law to establish any ground for recovery.”

The allegation of estoppel on the part of appellant includes the allegation that:

“ * * * if for any reason said contract is not sufficiently specific and definite, then nevertheless defendant is es-topped to so claim and to set up any insufficiency because of the defendant’s act in entering into said contract and exhorting plaintiff to clear the premises to make ready for the construction and defendant’s representations after the date of said contract to proceed with the demolition of said buildings and clearing the site and that the money would be-forthcoming andrthat.defendn ant would obtain said loan and if for any reason said money could not be obtained elsewhere then said defendant would himself loan 'the money and plaintiff in reliance on said contract and said exhortations and said representations, both in said contract and given verbally by the defendant after the date of said contract defendant is estopped to claim any deficiency of said contract. In this connection plaintiff shows that defendant’s failure and refusal to lend said funds himself wáá arbitrary and wilful because defendant was well able financially to lend said funds he being .a millionaire several times.”

Both parties signed the contract. Appellant and appellee had equal knowledge of the contents of the contract which made it invalid as a matter of law. Generally, -when one party has equal-means as the other party, of knowing facts and determining their consequence, estoppel will not lie. Richey v. Miller (1944), 142 Tex. 274, 177 S.W.2d 255, 257, 170 A.L.R. 832. The appellee did make representations that moved the appellant to change his position for the worse. Demolishing the old building was done by mutual consent. Appellant sustained damages. Appellee did not profit or gain in any manner by his dealings with appellant. In Wilson v. Fisher (1945), 144 Tex. 53, 188 S.W.2d 150, the Supreme Court said on p. 152:

“If the contract is insufficient it not only precludes recovery for specific performance but also for damages for the breach thereof. This is true because an ‘action for damages for the breach of a contract is, in effect, an action for its enforcement, and the statute, in denying an action for its enforcement, likewise denies an action for damages for its breach.’ Alworth v. Ellison, Tex.Civ.App., 27 S.W.2d 639, 640, writ refused.”

Appellant’s Point 5 is overruled.

Judgment of the trial court is affirmed.


author: WALTER, Justice.

text:
    STIM-O-STAM ENTERPRISES, INC., Appellant, v. The FIRST STATE BANK, ABILENE, Texas, Appellee.
    No. 3908.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 9, 1964.
    McMahon, Smart, Sprain, Wilson & Camp and J. M. Lee, Abilene, for appellant.
    Smith & Erwin and Frank Smith, Abi lene, for appellee.
   WALTER, Justice.

Stim-O-Stam Enterprises, Inc., filed suit against The First State Bank, Abilene, Texas, on a $2,000.00 check executed by W. E. McCook drawn on said bank and payable to Stim-O-Stam. The bank’s motion for summary judgment was granted and Stim-O-Stam has appealed.

In its motion for summary judgment, the bank pleaded res judicata and limitations.

It also pleaded there was a fatal variance in the pleadings and the proof in that the check was payable to Stim-O-Stam, Inc. and the appellant brought suit in the name of Stim-O-Stam Enterprises, Inc. It also asserted that appellant had forfeited its right to do business in Texas on July 16, 1963 for failure to pay its franchise tax as shown by a certificate of the Secretary of' State. Appellant’s original petition was filed on October 9, 1963. Judgment was rendered on March 16, 1964. The record does not reflect any effort on the part of appellant to pay its franchise tax or set aside the forfeiture of its charter. It has elected to remain in its outlawed status. For this reason it is prohibited by statute from doing business in the State and from suing in the courts.

The appellant presents one point as follows:

The Trial Court erred in passing upon the substantive merits of this case and in making a final disposition thereof in view of Appellee’s having called to the attention of the Court that Appellant’s right to do business in the State of Texas had been forfeited inasmuch as under such circumstances Appellant had and has no right to prosecute or defend actions in the Courts of this state, and the Trial Court accordingly was without jurisdiction or power to enter any final judgment in the case, and" should have abated same during the pendency of such suspension.”

The bank contends, and we agree, that the issue presented by appellant is now moot because Stim-O-Stam’s charter was forfeited. This is shown by an appropriate certificate of the Secretary of State. Ap-pellee in its prayer requests this court “— to set aside all previous orders and judgments and to dismiss this cause, including this appeal.”

In McNeill v. Hubert, 119 Tex. 18, 23 S.W.2d 331, (Commission of Appeals adopted by the Supreme Court), the court said:

“A case becomes moot when it appears that one seeks to obtain a judgment upon some pretended controversy when in reality none exists, or when he seeks judgment upon some matter which, when rendered, for any reason, cannot have any practical legal effect upon a then existing controversy.”

In Freeman v. Burrows, 141 Tex. 318, 171 S.W.2d 863, our Supreme Court said:

“When a cause become moot on appeal, all previous orders and judgments should be set aside and the cause, not merely the appeal, dismissed. * * * ”

All previous orders and judgments are set aside and this cause is dismissed without prejudice to the rights of any party hereto. . .


author: HUGHES, Justice.

text:
    VAN’S BALLROOM, INC., Appellant, v. The STATE of Texas, Appellee.
    No. 11279.
    Court of Civil Appeals of Texas. Austin.
    Dec. 16, 1964.

      Ted Musick, Houston, for appellant.
    Waggoner Carr, Atty. Gen., H. Grady Chandler, Cecil C. Rotsch, Asst. Attys. Gen., Austin, for appellee.
   HUGHES, Justice.

This suit was filed March 20, 1964, by the State of Texas against Van’s Ballroom Inc. and Irving S. Rubin Cafeterias, Inc. to recover taxes, penalties and interest allegedly due under Art. 21.02, Title 122A, Vernon’s Ann.Tex.Civ.St.

On April 15, 1964, Cafeterias Inc., answered.

On April 23, 1964, a default judgment was rendered against Van M. Bevill doing business as Van’s Ballroom. This judgment recited proper service on Mr. Bevill.

On May 14, 1964, Van’s Ballroom Inc. filed a plea of privilege to be sued in Harris County, and subject to the plea of privilege it filed an answer.

On May 18, 1964, the State filed a motion' to strike Van’s Ballroom Inc. plea of privilege on the ground that it was not filed within the proper time after service of citation, averred to have occurred on March 25, 1964. The State also in said motion moved to strike the original answer filed by Van’s Ballroom Inc. on the ground that it was filed subsequent to a default judgment rendered against it on April 23, 1964. This motion, in both respects, was granted by the trial court on June 10, 1964.

On- June 18, 1964, Van’s Ballroom Inc. filed a motion- for new trial. • This motion does not appear to have been presented to the trial court as no order regarding it appears in the record.

On July 7, 1964, Van’s Ballroom Inc. filed an appeal bond.

On September 3, 1964, Van M. Bevill, styling himself as “one of the defendants” in this cause filed a motion to sever the “Irving S. Rubin’s case.” from the case, or “judgment as to Van M. Bevill.” On the same day, the Court granted this motion severing the State’s case against Irving S. Rubin Cafeterias, Inc. from its case against Van’s Ballroom, Inc., which order recited that final judgment “had been entered as to Van M. Bevill.”

The State has filed a motion to dismiss this appeal on the ground, among others, that appellant was not affected by the judgment below and has no right to appeal from it. We grant the motion.

Art. 2249, V.T.C.S. provides, in part, that an appeal may be taken from every final judgment of the District Court in civil cases.

No party may appeal from a judgment unless he, or a party with whom he is in privity, is prejudiced or aggrieved by the judgment. Appeal and Error, Tex.Jur. 2d, Secs. 196-7, pp. 468-70.

No judgment has been rendered against appellant. No judgment has been rendered against any party with whom appellant is shown to be in privity.

A judgment has been rendered against Van M. Bevill. He has not appealed. The propriety or validity of such judgment is not before us.

The record does not show that appellant has been prejudiced or aggrieved by the judgment against Mr. Bevill. It, therefore, has no right to appeal therefrom.

This appeal is dismissed.

Appeal dismissed.


author: STEPHENSON, Justice.

text:
    The STATE of Texas, Appellant, v. L. L. WEIDEL et ux., Appellees.
    No. 6714.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 3, 1964.
    Rehearing Denied Dec. 31, 1964.
    W. G. Walley, Jr., Beaumont, for appellant.
    Marcus & Weller, Beaumont, for ap-pellees.
   STEPHENSON, Justice.

This is an eminent domain case, and involves the taking of a strip of land for highway right of way purposes. Judgment was rendered upon a jury verdict and the State appealed.

The State contends the trial court erred in refusing to permit a witness called by the State to give certain re-direct testimony. The witness, Willard Hall, was called by the State and gave testimony as to the value of the land taken. This testimony showed that Hall valued the land taken on a per acre basis. On cross-examination Hall was interrogated as to other appraisals that he had made in the area which showed that he had made such other appraisals on a per foot basis. Then on re-direct examination, the Court sustained objections to Hall’s testimony attempting to show additional appraisals made by Hall in the area, and in fact, two appraisals made of property lying both to the east and to the west of the property in question. The bill of exception shows these appraisals were made on a per acre basis, and for the purpose of condemnation.

The accepted rule in this state is that evidence concerning values at a forced sale is not admissible. Direct evidence of appraised values of other tracts of land would not be admissible, especially if involving tracts of land being acquired by condemnation. However, cross-examination of a witness as to other appraisals made by such witness of neighboring land made at a time which is not too remote would be fair cross-examination. City of Denison v. Corcoran, Tex.Civ.App., 253 S.W.2d 321; State v. Hartman, Tex.Civ.App., 338 S.W.2d 302. It was, therefore, entirely proper for the attorney to cross-examine the witness Hall as to other appraisals made by him. Following this testimony, on direct examination the witness Hall gave a full • explanation as to why he appraised some tracts on a per acre basis and other tracts on a per foot basis. Then, the attorney for the State asked this question:

' “Getting back to market value of subject property, have you appraised the tract to the East of Mr. Weidel, and West of Mr. Weidel, both?”

Upon objection, the State was not permitted to go further into such other appraisals. Other appraisals could not be used in arriving at the market value of the property taken, and no error was committed by the Court. In any event, a complete study of the record and this point does not demonstrate that this action of the Court amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment i'n this case. Rule 434, Texas Rules of Civil Procedure. The point is overruled.

Appellant has two other points, one that there was no evidence to support the verdict of the jury, and the second that the verdict of the jury was against the overwhelming weight and preponderance of the evidence. The case was submitted to the jury by a written charge containing three special issues. These points are not briefed so that this court can determine the specific points complained of. Both points are overruled.

Judgment of the trial court affirmed.


author: COLLINGS, Justice.

text:
    H. E. B. FOOD STORES, Appellant, v. Frank RODGERS, Appellee.
    No. 3931.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 20, 1964.

      Groce, Hebdon, Fahey & Smith, Damon Ball, San Antonio, for appellant.
    Evans & Egger, Peter Torres, Jr., San Antonio, for appellee.
   COLLINGS, Justice.

Frank Rodgers brought this suit against H. E. B. Food Stores in Bexar County for injuries alleged to have been sustained by plaintiff’s wife, Julia Rodgers, on or about October 12, 1963, while she was patronizing one of defendant’s stores in San Antonio. Plaintiff alleged that his wife’s injuries were sustained as a direct and proximate result of the defendant’s negligence in failing to maintain its premises in a reasonably safe condition for customers; that the defendant was negligent in maintaining in its store a high stack of bottles containing soft drinks, in failing to warn customers of the unsafe condition resulting therefrom, in allowing customers to continue taking bottles from the stack, in inducing customers to take bottles from an unsafe stack and in failing to maintain adequate safeguards around the stacks of bottles.

Defendant H. E. B. Stores filed a plea of privilege alleging that its principal place of business was in Nueces County, Texas, and sought to have venue changed to that county. Plaintiff filed a sworn controverting plea alleging that venue was properly in Bexar County under the provisions of subdivisions 9a and 23 of Article 1995, Vernon’s Ann.Tex.Civ.St. The plea of privilege was overruled and H. E. B. Stores have appealed.

In the order of the court overruling appellant’s plea of privilege it was found that appellant H. E. B. Food Stores is a private corporation and has a representative in Bexar County; that appellee Frank Rodgers, plaintiff in the lower court, has resided in Bexar County, Texas, at all times material to this suit; that appellee presented evidence showing a prima facie case of negligence against appellant in Bexar County but did not show by a preponderance of the evidence that appellant was guilty of the negligence alleged on the occasion in question.

In appellant’s first point it is contended that the action of the court in overruling the plea of privilege cannot be sustained under subdivision 9a of the venue statute because of the finding that appell’ee as plaintiff did not show by a preponderate of the evidence thát app'ellant was guilty 'of negligence complained of.! This point is-well taken. Compton v. Elliott, (Com.App.), 88 S.W.2d 91; Southland Beauty Shops, Inc., v. Foreman, Tex.Civ.App., 319 S.W.2d 737, (Writ Dis.); Texas Mutual Reserve Life Insurance Company v. Ormand, 115 S.W.2d 776.

In appellant’s second point it is. contended that the court erred in overruling'the plea' of privilege because of the finding that appellee did not show by a preponderance.of the evidence that appellant was guilty of negligence proximately causing the injuries, complained of, since a finding to the con-: trary was necessary to justify retention of. venue in Bexar County under subdivision 23 • of the venue statute. In our opinion this contention is also well taken. Subdivision 23 provides as follows: '

“Corporations and associations: Suits'' ' against a private corporation, associa-' tion, or joint stock company may be ' ' brought in the county in which its principal office 'is situated; or in the county in which the cause of action or part thereof arose; or in the county in’ which the plaintiff resided at the time the cause of action or part thereof, arose, provided such corporation, asso- . : ciation or company has an.agency-or )⅜ representative in such .county; or, if ¡ the corporation, association, or joint ,- stock company had no agency or .repre-, . sentative in the county in which the plaintiff resided at the time the cause of action or part thereof arose, then suit may be brought in the county nearest that in which plaintiff resided at said time in which the corporation, as- . sociation or joint stock company then. had an agency or representative. Suits against a railroad corporation, or against any assignee, trustee or receiver operating its railway, may also be' brought in any county through or into which the railroad of such corporation extends or is operated. Suits against receivers of persons and corporations may also be brought as otherwise provided by law.”

To maintain venue in a county other than that where appellant corporation had its principal office under subdivision 23, appellee had the burden of establishing by a preponderance of the evidence the existence of a cause'of action. It is held that when the-existence of a cause of action is essen--tial to support venue, each element of the cause of action must -be proved. Campbell v. McCown, Tex.Civ.App., 176 S.W.2d 226.-In the instant case he was required to establish the alleged negligent act by appellant or its agents, servants or employees committed in the county where suit is brought ,pr,oxi-mately causing the injury upon which the suit is based, or .to show that appellee resided and appellant had an' agent or representative in the county where the suit was brought at the time the cause of action arose. In the instant case appellee failed to estáblish venue in Bexar County because he failed to establish his cause of action by a' preponderance of the evidence.’ The trial' court specifically found that appellee did not show'by a preponderance of the evidence ■’ that appellant was guilty of the alleged' negligence of which appellee complains.1 The evidence does not conclusively show such negligence. The plaintiff failed to make proof of the venue facts required by subdivision 23 and the court therefore-erred in overruling appellant’s. plea of .privilege simply because appellee did make out a prima facie case. Victoria Bank & Trust Company v. Monteith, 138 Tex. 216, 158 S.W.2d 63; Rogers v. Fort Worth Poultry & Egg Company, Tex.Civ.App., 185 S.W.2d 165; Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91; Porter v. United Motels, Inc., Tex.Civ.App., 315 S.W.2d 340; Southland Beauty Shops, Inc. v. Foreman, Tex.Civ.App., 319 S.W.2d 737; Amarillo Coca-Cola Bottling Company v. Price, Tex.Civ.App., 378 S.W.2d 409; Magnolia Petroleum Company v. Heldt, Tex.Civ.App., 236 S.W.2d 255.

There is no indication that the case was not fully developed. The court found against appellee upon a controlling venue fact issue, that is, that appellee did not show-by a preponderance of the evidence that appellant was guilty of negligence proximately causing appellee’s damage as alleged. It is therefore our duty to render the judgment which the trial court should have rendered on such finding. Rule 434, Texas Rules of Civil Procedure; Great Plains ‘Oil & Gas Company v. Foundation Oil Company, 137 Tex. 324, 153 S.W.2d 452.

The judgment is reversed and judgment here rendered sustaining appellant’s plea of privilege.


author: COLEMAN, Justice.

text:
    Bertram SCHROEDER et ux., Appellants, v. GALVESTON COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO. 1, Appellee.
    No. 14418.
    Court of Civil Appeals of Texas. Houston.
    Dec. 17, 1964.
    Rehearing Denied Jan. 7, 1965.

      Palmer & Bell, Ralph L. Bell, Dickinson, for appellants.
    Fuhrhop & Green, John R. Green, Dickinson, for appellee.
   COLEMAN, Justice.

This is a condemnation suit. Appellee has condemned an easement across certain land owned by appellant on which a sewer line has been constructed. One tract of appellants’ property was a strip of land 60 feet in width and 170 feet in length. An easement over 20 feet of this property, along the north property line, was taken. A deep water well was'lb'cát'ed about 5 feet north of the south property line. Prior to the construction of the sewer line appellant sold water from this well to other property owners. After the sewer line was constructed he discontinued selling the water.

Appellant testified that he stopped the operation of the well and discontinued the water service because the sewer line was placed very close to the well. There was testimony by the Chief Sjanitary Officer of the Galveston County Health Department that the Texas State Department-of Health had promulgated certain rules and regulations binding on Galveston County and that under certain conditions it is dangerous to health to place a sewer line within 50 feet of a water well. His further testimony might be construed as being to the effect that the well could be safely used if it is enclosed in concrete and might be safe under other conditions. He also testified that if the sewer line was constructed properly of epoxy lined cement asbestos pipe with rubber sealed joints a water well 45 feet away would be safe. There is testimony from which it might be inferred that the Water District used this type of construction though there was no direct testimony to this effect.

A consulting engineer of the District testified that in constructing sewer lines he tried to avoid laying them as close as 47 feet to a water well. He stated that there is a regulation prohibiting water wells within 50 feet of a sewer line, but he did not state who made, or enforces, the regulation.

On a bill of exceptions appellant testified that the water well was unusable because the sewer line created a hazard. Appellant had operated the water well since 1953 and during that time he had become familiar with the requirements for keeping a water well free from contamination primarily from booklets, and rules and regulations outlining the requirements for water wells and sewer lines furnished him by the Chief Sanitary Officer of Galveston' County. He testified that his well was 498 feet deep and encased in a four inch galvanized steel pipe, and that a water well located between 50 feet and 75 feet, of a sewer line should be encased in cement. Based on his experience with water wells, it was his opinion that, considering the construction of his well, it could not be safely operated for human consumption since the sewer line had been constructed within 50 feet of it.

This testimony was refused by the- court on the ground that appellant did not qualify as an expert with regard to the technical matters to which he testified and that appellant’s information with regard to damages to the well was based on hearsay. An additional objection to the testimony was that the proffered testimony related to damage to a business rather than to the land as such. ....

Appellant’s first three points of error relate to the action of the trial court in refusing the proffered testimony concerning damage to the-water well; in refusing to permit reference to damage to the. water well in argument to the jury; and in refusing to instruct the jury that they should •consider the damage to the water well.

Although the evidence was not clear and specific on the question, there was evidence from which it could be reasonably inferred that the Texas State Department of Health had promulgated certain Rules and Regulations pertaining to the operation of water wells and that one of these regulations prohibited the operation of a water well within 50 feet of a sewer. While this was secondary evidence, it was admitted without objection and is competent evidence. McCormick and Ray, Texas Law of Evidence (2d Ed.), § 1579.

If by this regulation water from water wells within 50 feet of a sewer line cannot be lawfully produced, there would be damage to the well and distribution system. The evidence shows that the present well is 47 feet from the sewer line as installed and is only 5 feet from the south property line, leaving a strip of land only two feet in width outside of a 50 foot zone from the sewer line. None of appellant’s land would be 50 feet away from the south line of the easement taken.

The trial court submitted issues re-quiring the jury to find the value of the '“land” in the remainder before the taking ■and after the taking. The word “land” -was defined as meaning “the soil, vegetation and trees thereon, if any.” Appellant ■ orally objected to the definition because it ■omitted “improvements.” If the objection -was subsequently transcribed and the ■court’s ruling and official signature endorsed thereon, and if the objection was filed with the clerk, in time, to be included in the transcript, as required by Rule 272, Texas Rules of Civil Procedure,. it is not included in the official transcript.. There is, therefore, no sufficient bill of exceptions to the action of the court in refusing to amend his charge, in.the. particular desired, before this Court,.and the oral .objection must be considered waived. Cannon v. Canida, Tex.Civ.App., 321 S.W.2d 631, error ref., n. r. e.; Allen v. Matthews, Tex.Civ.App., 210 S.W.2d 849, error ref., n. r. e. Apparently no issues requested by appellant were refused by the court.

Appellant’s point of error pertaining to the refusal to admit testimony is too general and docs not specify the exact testimony which he contends was admissible. In his argument under the point he discusses only that portion of the testimony in which appellant said that he knew the value of the well and that the value of the well and distribution system was $3,949.90. Neither this witness nor any other attempted to estimate the depreciated value of the well. He testified that the $3,949.90 was replacement cost. The trial court did not err in refusing this evidence in the absence of testimony concerning depreciation. State v. Doom, Tex.Civ.App., 278 S.W. 255; Housing Authority of City of Galveston v. Henderson, Tex.Civ.App., 267 S.W.2d 843.

There is no evidence that the distribution system is valueless. So far as the evidence shows, the well could be relocated and the same distribution system used. There is no evidence of the salvage value of the pipes, pumps and tanks. These items were not on the property taken. Under these circumstances the replacement cost of the well and entire distribution system was irrelevant to the issues in this case since it would have been of no assistance to the jury in determining the value of the land remaining to appellant after the easement was condemned. The court did not err in excluding this evidence.

There is no evidence in the record which would assist the jury in determining the loss in money to appellant’s water well or to guide the jury in determining the loss in value which the land suffered by reason of damage to the well. Any consideration the jury might have given to the damage to the well would have been purely speculative and conjectural. The action of the trial court, in advising the attorney for appellant that reference to the water well would be immaterial and improper, was not error.

The judgment of the trial court is affirmed.


author: STONE, Judge.

text:
    Mary John HAMMONTREE, Plaintiff-Respondent, v. CENTRAL MUTUAL INSURANCE COMPANY, a corporation, Defendant-Appellant. Mary John HAMMONTREE, Plaintiff-Appellant, v. CENTRAL MUTUAL INSURANCE COMPANY, a corporation, Defendant-Respondent.
    Nos. 8361, 8362.
    Springfield Court of Appeals. Missouri.
    Jan. 5, 1965.

      Daniel, Clampett, Ellis, Rittershouse & Dalton, Springfield, for plaintiff.
    Stewart, Reid & Turner, Springfield, for defendant.
   STONE, Judge.

. In this court-tried action at law. on a “homeowners policy” issued to plaintiff, Mary John Hammontree, by defendant, Centra] Mutual Insurance Company, judgment was entered awarding plaintiff $300' for the “mysterious disappearance” of a necklace and diamond pendant on May 10, 1963, under circumstances hereinafter detailed, but denying plaintiff’s prayer for damages and an attorney’s fee on account of defendant’s alleged vexatious refusal to pay the loss. V.A.M.S. § 375.420. We have consolidated defendant’s appeal from the judgment for $300, here docketed as Case No. 8361, and plaintiff’s appeal from denial of damages and attorney’s fee, here docketed as Case No. 8362.

Defendant’s policy No. H955575 (herein referred to as the policy), issued to plaintiff for a policy term of three years beginning March 15, 1961, provided coverage against various perils, including Coverage 'C with respect to "unscheduled personal •property” (on the described premises, i. e., • at plaintiff’s home address, and away from ; those premises while “owned, worn or used” by plaintiff) against the peril of "Theft, meaning any act of stealing or attempt .thereat * * *.”

For an additional premium of $11, defendant attached to the policy an endorsement effective August 23, 1962, with the caption “EXTENDED THEFT COVERAGE” followed by two numbered paragraphs, the first of which read: ‘‘Inclusion of Mysterious Disappearance: So much of the description of the peril of theft under the caption ‘Perils Insured Against,’ in Section 1 of the form attached to this policy, as reads: ‘Theft, meaning any act of stealing or attempt thereat’ is amended to read: ‘Theft, meaning any act of stealing or attempt thereat, or mysterious disappearance (except mysterious disappearance of a precious or scmi-prccious stone from its setting in any watch or piece of jewelry).’” The second numbered paragraph, not material here, deleted an exclusion in the policy and thereby extended coverage to personal property “while unattended in or on any automobile.”

In the course of dressing at her home about 6 P.M. on May 10, 1963, for a dinner engagement with two friends, Mrs. Velma Askins and Mrs. Opel Hooper, plaintiff placed the necklace around her neck and fastened the “spring-ring” clasp herself by reaching behind her neck and fitting together the two rings which comprised the clasp. Although she could not see the clasp, she fastened it “in the usual manner” and followed her customary practice of pulling the necklace “a little to see for sure it [was] on there tight.” She had worn the necklace much of the time after it had been given to her at Christmas 1961, and the clasp on the necklace had given no trouble and had required no repair or replacement.

With no further thought about the necklace, plaintiff and her two friends set forth •in plaintiff’s automobile to celebrate the birthdays of plaintiff and Mrs. - Askins. They went first to The Grove, where they entered the . cocktail lounge, remained “around forty-five minutes,” and “had one drink.” Then they drove several miles across Springfield to Shady Inn, where Mrs. Hooper thought that her -husband might be having dinner; but, failing to locate him, plaintiff and" her companions entered the dining room and, in due course,, ordered their meal. When .she. happened to put her hand to her neck, plaintiff discovered that her necklace was missing. It then was 8:30 to 9:00 P.M. The loss was reported to the manager at Shady Inn, and plaintiff and her companions unsuccessfully searched for the necklace there and, after eating dinner, looked for it in plaintiff’s automobile. Then they returned to The Grove, talked with the manager there, and searched in the dimly-lighted cocktail lounge and in the outside area where plaintiff’s automobile had been parked. Plaintiff later searched in her home, her garage, and again in her automobile, but the necklace was not found. Her last recollection of having the necklace was when she fastened it around her neck about 6 P.M. at her home; she first missed it about 8:30 to 9:00 P.M. at Shady Inn; and she had no information or knowledge as to when or where, during the intervening period, the necklace had disappeared.-

Both The Grove and Shady Inn were “crowded” — there were “just lots of people at both places.” But there was no evidence that plaintiff had been shoved or jostled, or that she had danced or otherwise, had come into physical contact with anyone. In a signed statement taken from plaintiff on June 5, 1963, she said that: “I did not dance with anyone and I wasn’t real close to anyone. I feel that the necklace just fell off and someone picked it up.” At the trial she offered the safe, alternative that “it was efthbr lost or stolen.”

The trial court’s judgment for plaintiff was predicated upon his holdings (a) that “mysterious disappearance” in the policy provision in suit, i. e., ‘‘Inclusion of Mysterious Disappearance: * * * ‘Theft, meaning any act of stealing or attempt thereat, or mysterious disappearance * * * ’ » (hereinafter referred to as the “inclusion-meaning” provision), is “not a part of the definition of ‘theft’ ” but is “a risk covered by the policy,” and (b) that the disappearance of the necklace was a “mysterious disappearance” within the coverage afforded by the "inclusion-meaning” provision. Defendant contends that both holdings were erroneous.

Is "mysterious disappearance?” a risk covered by the policy? The earlier cases construing so-called “mysterious disappearance” clauses involved claims presented under what is referred to as the "presumptive theft” provision, to wit: “The word ‘theft’ includes larceny, burglary and robbery. Mysterious disappearance of any insured property shall be presumed to be due to theft.” Davis v. St. Paul Mercury & Indemnity Co., 227 N.C. 80, 40 S.E.2d 609, 610, 169 A.L.R. 220. Under the "presumptive theft” provision, a showing of “mysterious disappearance” simply served to raise a rebuttable presumption of theft and created a rule of evidence binding on the parties, but obviously did not broaden the coverage to include and insure “mysterious disappearance” as such. Seward v. Assurance Co. of America, 218 Cal.App.2d Supp. 895, 32 Cal.Rptr. 821, 823.

In recent years, the "presumptive theff’ provision has given way to various revisions, namely (a) that which we refer to as the “simple coordinate” provision (i. e., “[t]his Company agrees to pay for loss by theft or attempt thereat or mysterious disappearance * * * ”) found in the policies involved in Englehart v. Assurance Co. of America, La.App., 139 So.2d 108, 110, and Seward, supra, 32 Cal.Rptr. at 822, (b) that which we refer to as the “including” provision (i. e., “[t]heft, including attempted theft, mysterious disappearance, larceny, burglarly (sic), robbery * * *”) found in the policy involved in Midlo v. Indiana Lumbermen’s Mutual Ins. Co., La.App., 160 So.2d 314, 315, and (c) the hereinbefore-quoted “inclusion-meaning” provision found in the policies involved in the instant suit, Conlin v. Dakota Fire Ins. Co., N.D., 126 N.W.2d 421, 424, and Austin v. American Casualty Co., D.C.App., 193 A.2d 741.

Under the “simple coordinate” provision, “ ‘[m]ysterious disappearance’ no longer raises a presumption of theft which constitutes a contractual ‘rule of evidence binding on the parties’ to the insurance contract” but “becomes a risk covered by the policy” and “[t]here is no necessity to show possibility or probability that the loss resulted from theft.” Seward, supra, 32 Cal.Rptr. at 823. To the same effect, see Englehart, supra, 139 So.2d at 112-113.

Under the "including” provision “[t]heft is * * * defined so as to include attempted theft (which is of course not in fact theft) and mysterious disappearance (which may or may not be in fact theft), etc.,” and (as under the “simple coordinate” provision) “the possibility or probability of theft need not be shown * * Midlo, supra, 160 So.2d at 315.

In Austin, supra, 193 A.2d at 742, the District of Columbia Court of Appeals construed the “inclusion-meaning” provision as simply reducing “the quantum of proof necessary to establish a theft by permitting a finding of theft from proof of a mysterious disappearance under circumstances which suggest the probability of theft.” But in Conlin, supra, the Supreme Court of North Dakota construed the same policy provision as requiring only proof of a “mysterious disappearance” within the widely-accepted judicial definition of those terms, i. e., “that the disappearance be under unknown, puzzling, and bailing circumstances which arouse wonder, curiosity, or speculation, or under circumstances which are difficult to understand or explain * * 126 N.W.2d at 425. And, as we have noted, the trial court in the instant case likewise held that recovery under the same policy provision might be had by showing a “mysterious disappearance” since that is (so the court concluded) “not a part of the definition of 'theft’ ” but “a risk covered by the policy.”

Turning again to the language of the “inclusion-meaning" provision under scrutiny (i. e., “Inclusion of Mysterious Disappearance. * * * Theft, meaning any act of stealing or attempt thereat, or mysterious disappearance * * * ”), insertion of the comma after “thereat” suggests that the subsequent words “or mysterious disappearance” are not to be included in and as a part of the phrase “meaning any act of stealing or attempt thereat” which is definitive of “theft,” but rather denote and identify “mysterious disappearance” as a separate and coordinate risk. And the descriptive paragraph heading "Inclusion of Mysterious Disappearance” under the caption “EXTENDED THEFT COVERAGE” persuasively indicates an intention to include “mysterious disappearance” within the coverage afforded by the policy. On its face, the "inclusion-meaning” provision is, in language and apparent intent, conspicuously different from the “presumptive theft" provision but somewhat similar to the “simple coordinate” and "including” provisions which have been construed as affording coverage for “mysterious disappearance” without a showing of possibility or probability of theft.

It is a favorite and familiar principle of insurance law that, if the meaning of a policy provision is doubtful and the language thereof is fairly susceptible of different constructions, the courts must adopt the construction least favorable to the insurer and most favorable to the insured. Accordingly, believing (as we do) that the "inclusion-meaning” provision under scrutiny is fairly susceptible of the construction accorded to it by the trial court, to wit, that the words “or mysterious disappearance” were “not a part of the definition of ‘theft’ ” but denoted “a risk covered by the policy,” we accept and approve that construction.

Was there a "mysterious disappearance” of the necklace? The earnest contention of defendant’s counsel that the disappearance of plaintiff’s necklace was not a “mysterious disappearance” is predicated upon their definition of “mysterious disappearance,” to wit: “ * * * the separation of an item of personal property from its owner’s possession by the owner’s intentional placing of it in an identified [fixed] location, followed by its disappearance under unexplained circumstances, constitutes the circumstances under which the disappearance is 'mysterious.’ On the ■other hand, there is nothing mysterious about losing or mislaying property; it is a ■common, everyday occurrence.” This definition emphasizes the first of two “conditions” (i. e., that “the disappearance must 'be from a clearly identified location” and that “the circumstances should suggest theft ■as the logical explanation” of the disappearance) which, so a distinguished legal representative of the insurance industry asserts, the draftsmen of the first “mysterious disappearance” clause (i. e., the presumptive theft” provision) had in mind and which the industry still believes to be •essential to a “mysterious disappearance.” Kelly, “Mysterious Disappearance” Defined, .28 Ins. Counsel J. 72, 76-77, 83 (1961).

It is true that, in some of the earlier •cases dealing with claims under the "presumptive theft” provision, the courts understandably held that, to constitute a “mysterious disappearance” within the meaning ■and coverage of that provision, the circumstances should, permit an inference of theft, because, as appropriately pointed out in Davis, supra, 40 S.E.2d at 611, 169 A.L.R. at 223 (a case under the "presumptive theft” provision): “The hazard insured against is that of theft. It does not cover or purport to cover property mislaid or lost. Nor do-es it-insure against any and all mysterious disappearances. It merely provides that 'mysterious disappearance of any insured property shall he presumed to be due to theft.’" (Emphasis ours.)

However, in Davis, supra, 40 S.E.2d at 611(4), 169 A.L.R. at 223, the court defined “mysterious disappearance” as embracing “any disappearance or loss under unknown, puzzling or baffling circumstances which, arouse wonder, curiosity, or speculation, or circumstances which are difficult to understand or explain. A mysterious disappearance is a disappearance under circumstances-which excite, and at the same time baffle, wonder or curiosity.” The quoted judicial' definition has been approved in most of the-reported “mysterious disappearance” cases,, including cases under each of the several', policy provisions hereinbefore noted. Doubting our ability to improve upon this definition, we likewise will use it.

To those participating in or familiar with development of this particular coverage, one or both of the industry’s “conditions,” i. e., that “the disappearance must be from a clearly identified location” and that “the-circumstances should suggest theft as the-logical explanation” of the disappearance-, may be implicit in “mysterious disappearance.” However, the courts do not necessarily accept the construction accorded to-policy terms by astute insurance specialists or perspicacious counsel but rather are concerned with the meaning which the ordinary insured of average intelligence and common understanding reasonably would give to the words or language under consideration. Neither the above-quoted judicial definition nor the “inclusion-meaning” provision under consideration indicates that, to permit a finding of “mysterious disappearance,” “the disappearance must be from a clearly identified location” or “the circumstances should suggest theft as the logical explanation” of the disappearance; and we are not .persuaded that the words “mysterious disappearance” carry any such connotation to the ordinary insured of average intelligence and common understanding. If insurers desire to “condition” the meaning of “mysterious disappearance,” it would be relatively easy for them so to do frankly and openly by a policy definition of those words. In the meantime, the courts have neither right nor duty to impose “conditions” under the guise of construction.

We need not review and rewinnow the facts. Suffice it to conclude at this point that we are of the considered opinion that, under the hereinbefore-quoted judicial definition of “mysterious disappearance,” the instant record reasonably would have per-mitted, although not compelled, the finding of the trial court that the disappearance of plaintiff’s necklace was a “mysterious disappearance.” Accordingly, having held that “mysterious disappearance” is a risk cov■ered by the policy in suit, and being unable to say that the judgment for plaintiff in the sum of $300 (there being no issue as to the reasonable value of the necklace) was “clearly erroneous” [V.A.M.R. Rule 73.01 •(d): V.A.M.S. § 510.310(4)], it becomes •our duty to-affirm upon defendant’s appeal ■docketed as our Case No. 8361.

Plaintiff's appeal, here docketed as Case No. 8362, is from the trial court’s denial of damages and attorney’s fee on account of defendant’s alleged vexatious refusal to pay the loss. V.A.M.S. § 375.420. The agency, through ’which the policy in suit was issued, referred -plaintiff’s claim to the Springfield office of United Adjustment & Inspection Company; and an adjuster from that office interviewed plaintiff, took a signed statement from her (in which, as we have noted, plaintiff said that “I feel that the necklace just fell off and someone picked it up”), and forwarded that statement to defendant’s home office with the adjuster’s report which included the recommendation, “we feel that this is another case of lost article rather than mysterious disappearance and we feel that the claim should be denied on that basis.” After defendant denied the claim, plaintiff employed counsel who wrote defendant’s home office on September 9, 1963. That letter is not in evidence; but, from defendant’s reply of September 18 which is before us, it appears that plaintiff’s counsel had urged that Englehart v. Assurance Co. of America, La. App., 139 So.2d 108 (involving a claim under the "simple coordinate” provision) was controlling. In reply, defendant commented that “the facts surrounding the occurrence of the Englehart loss” were different and attached photocopies of. the opinions in Casey v. London & Lancashire Indemnity Co. of America, 3 Misc.2d 918, 160 N.Y.S.2d 114, and Deckler v. Travelers Indemnity Co., La.App., 94 So.2d 55 (involving claims under the “presumptive theft” provision).

Plaintiff’s argument here follows the line that defendant “may have had some question as to coverage when this loss was first reported,” that however it “should have received some illumination when it read the Englehart, Casey and Decider cases,” that “any doubt remaining should have been swept away when cited to the Seward case [Seward v. Assurance Co. of America, 218 Cal.App.2d Supp. 895, 32 Cal.Rptr. 821],” and that “a failure to pay the loss at that juncture can only be termed vexatious.” Passing the frailty that nothing in the transcript on appeal indicates when defendant was “cited to the Seward case,” it may be observed that both the Seward and Engle-hart cases dealt with claims presented under the “simple coordinate” provision and that, although we here have expressed our view that the “inclusion-meaning” provision in suit bears some similarity to the "simple coordinate” provision, we cannot join in the statement of plaintiff’s counsel that the two provisions are “so similar * * * that the two may fairly be called identical.”

At the time of the exchange of correspondence between plaintiff’s counsel and defendant’s home office in September 1963, there apparently had been no reported judicial construction of the “inclusion-meaning” provision; and at the time of trial on March 17, 1964, the only reported case involving that provision which was then available in the National Reporter System was Austin v. American Casualty Co., D.C.App., 193 A.2d 741, where the "inclusion-meaning” provision had been construed in accordance with the contention of instant defendant.

The controlling legal principles are well-settled. V.A.M.S. § 375.420 is highly penal and must be strictly construed. Before the trier of the facts may consider the issue of vexatious refusal to pay, there must be evidence from which it reasonably may be found that the insurer’s refusal to pay was willful and without reasonable cause as the facts would have appeared to a reasonable and prudent man prior to tidal. And merely because the verdict or judgment upon trial may be adverse to the insurer is no reason for inflicting the penalty.

Since an insurer has the right to entertain an honest difference of opinion as to its liability, it is clear that, where there is an open question of law or an issue of fact determinative of its liability, an insurer, acting in good faith, may insist upon a judicial determination of such question or issue without being penalized. “It is only when it persists in its refusal to pay. * .* . ‡ after it is aware that it has no meritorious defense that it becomes subject to penalties for vexatious delay.” The statute never should be invoked to intimidate a good faith defense.

When viewed in the light of the stated principles, certainly the instant situation neither required nor justified the imposition of a penalty for vexatious refusal to pay. The conscientious trial judge pointed out that “this is a case of first impression in Missouri” and stated his belief that “defendant’s denial of the claim was made in good faith.” Being of like mind and approving his holding that damages and attorney’s fee for alleged vexatious refusal to pay should not be allowed, it becomes our duty to affirm upon plaintiff’s appeal docketed as our Case No. 8362.

The judgment of the circuit court is, in all respects, affirmed.

RUARK, P. J., and HOGAN, J., concur.

      . Davis v. St. Paul Mercury & Indemnity Co., 227 N.C. 80, 40 S.E.2d 609, 610, 169 A.L.R. 220; Caldwell v. St. Paul Mercury & Indemnity Co., 210 Miss. 320, 49 So.2d 570, 571; Levine v. Accident & Cas. Ins. Co., 203 Misc. 135, 112 N.Y.S.2d 397, 400; Casey v. London & Lancashire Indem. Co. of America, 3 Misc.2d 918, 160 N.Y.S.2d 114, 115, affirmed 5 A.D.2d 724, 168 N.Y.S.2d 692; Loop v. United States Fid. & Guar. Ins. Co., La.App., 63 So.2d 247; Deckler v. Travelers Indemnity Co., La.App., 94 So.2d 55, 56; Ruby v. Farmers Mutual Auto. Ins. Co., 274 Wis. 158, 79 N.W.2d 644, 645; Sigel v. American Guarantee & Liab. Ins. Co., 173 Pa.Super. 434, 98 A.2d 376, 377; Gordon v. Eureka Casualty Co., 187 Pa.Super. 636, 146 A.2d 379, 381.

      . Davis, supra, 40 S.E.2d at 610(1), 611(3, 5), 169 A.L.R. at 222, 223; Caldwell, supra, 49 So.2d at 572; Levine, supra, 112 N.Y.S.2d at 402 (6-8) ; Gordon, supra, 146 A.2d at 381-382(2, 3).

      . Even if the “inclusion-meaning” provision were construed as including the words “mysterious disappearance” in the phrase definitive of “theft,” the end result might not he different [Midlo v. Indiana Lumbermen’s Mutual Ins. Co., La.App., 160 So.2d 314, 315(1)]; hut, in our view of the instant case, that question need not be ruled.

      . Meyers v. Smith, Mo., 375 S.W.2d 9, 16-17(11, 12); Cain v. Robinson Lumber Co., 365 Mo. 1238, 1243, 295 S.W.2d 388, 391(3); State ex rel. Security Mut. Life Ins. Co. v. Allen, 305 Mo. 607, 616, 267 S.W. 379, 381(3); Basore v. Allstate Ins. Co., Mo.App., 374 S.W.2d 626, 629(4); Phillips Hotel Operating Co. v. Liberty Mutual Ins. Co., Mo.App., 366 S.W.2d 54, 56(1).

      . We doubt that the frequency of disappearances in any given factual category should he determinative as to whether those disappearances are “mysterious.” For, if the fact that “it is a common, everyday occurrence” to lose or mislay personalty bars such disappearances from being regarded as “mysterious,” disappearances by reason of theft, unfortunately also “a common, everyday occurrence,” no more logically or reasonably could be regarded as “mysterious.”

      . Loop, supra, 63 So.2d at 249(4); Deckler, supra, 94 So.2d at 59; Gordon, supra, 146 A.2d at 382(7); Caldwell, supra, 49 So.2d at 572, 573(5).

      . Under “presumptive theft” provision,. Loop, supra, 63 So.2d at 248; Deckler, supra, 94 So.2d at 58; Caldwell, supra, 49 So.2d at 572; Sigel, supra, 98 A.2d at 378; Gordon, supra, 146 A.2d at 381— under “simple coordinate” provision, Englehardt v. Assurance Co. of America, La.App., 139 So.2d 108, 113; Seward v. Assurance Co. of America, 218 Cal.App.2d Supp. 895, 32 Cal.Rptr. 821, 823 — under “including” provision, Midlo, supra, 160 So.2d at 315 — under “inclusion-meaning" provision, Conlin v. Dakota Fire Ins. Co., N.D., 126 N.W.2d at 425.

      . Farmer v. Railway Mail Ass’n., 227 Mo.App. 1082, 1086, 1089, 57 S.W.2d 744, 745(2), 747; Arms v. Faszholz, Mo.App., 32 S.W.2d 781, 782(4); Robinson v. Commonwealth Casualty Co., 224 Mo.App. 969, 971, 27 S.W.2d 49, 51; Cass Bank & Trust Co. v. National Indemnity Co., 8 Cir., 326 F.2d 308, 310(3); 44 C.J.S. Insurance § 294, at p. 1159. See Liberty Storage Co. v. Kansas City Term. Warehouse Co., Mo.App., 340 S.W.2d 189, 192(4, 5).

      . Loulos v. United Security Ins. Co., Mo.App., 350 S.W.2d 87, 89(2) ; Robinson v. Benefit Ass’n. of Railway Employees, Mo.App., 183 S.W.2d 407, 413(7); Schaeffer v. Northern Assur. Co., Mo.App., 177 S.W.2d 688, 693(14).

      . State ex rel. Continental Life Ins. Co. of Kansas City v. Allen, 303 Mo. 608, 621, 262 S.W. 43, 46; State ex rel. John Hancock Mut. Life Ins. Co. v. Hughes, Mo., 152 S.W.2d 132, 134; Patterson v. American Ins. Co. of Newark, N.J., 174 Mo.App. 37, 44, 160 S.W. 59, 62.

      . Non-Royalty Shoe Co. v. Phoenix Assur. Co., Limited, of London, England, 277 Mo. 399, 210 S.W. 37, 43(11); Aufrichtig v. Columbian Nat. Life Ins. Co., 298 Mo. 1, 249 S.W. 912, 916-917(9); Scott v. Missouri Ins. Co., Mo.App., 246 S.W.2d 349, 355(15).

      . Howard v. Aetna Life Ins. Co., 350 Mo. 17, 164 S.W.2d 360, 366(9); Ireland v. Manufacturers & Merchants Ind. Co., Mo.App., 298 S.W.2d 529, 534; Jones v. Farm Bureau Mutual Ins. Co., Mo.App., 284 S.W.2d 11, 15(5).

      . Rohlfing v. State Farm Fire and Casualty Co., Mo.App., 349 S.W.2d 472, 477(5); Haase v. Business Men’s Assur. Co. of America, Mo.App., 275 S.W.2d 381, 385(6); Ewing v. Dubuque Fire & Marine Ins. Co., Mo.App., 237 S.W.2d 498, 502(8).

      . State ex rel. Continental Life Ins. Co. of Kansas City v. Allen, supra, 303 Mo. at 621, 262 S.W. at 46; Rohlfing, supra, 349 S.W.2d at 477; Ireland, supra, 298 S.W.2d at 534(8).

      . Haase v. Business Men’s Assur. Co. of America, supra, 275 S.W.2d at 385(5); Sanderson v. New York Life Ins. Co., 239 Mo.App. 688, 194 S.W.2d 221, 228(18); Suburban Service Bus Co. v. National Mut. Cas. Co., 237 Mo.App. 1128, 183 S.W.2d 376, 378(3).


author: WILLIAMS, Judge.

text:
    J. Brandon PRICE et al., Appellants, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellee.
    Court of Appeals of Kentucky.
    Dec. 18, 1964.
    ; J. Brandon Price, Paducah, for appel- . lants. ' • ■ ' .
    John B. Breckinridge, Atty. Gen., Wil- ' liam A. Lamkin, Jr., Asst. Atty. Gen., Richard H. Peek, Paducah, for appellee.
   WILLIAMS, Judge.

The appellee, Commonwealth of Kentucky, Department of Highways, filed suit in the McCracken County Court to condemn certain property belonging to the appellants for the purpose of widening an existing road. After the commissioners had filed their report the appellants answered and asserted ownership of an additional strip of land bordering the road. They requested the court to direct the commissioners to make a new report reflecting the additional land. The Commonwealth amended its petition to show that a dispute existed over title to that area. A revised commissioners’ report was thereafter filed. Upon entry of judgment in the county court fixing the value of the property and declaring that the Commonwealth had the right to condemn, both parties appealed to the McCracken Circuit Court.

The circuit court sustained a motion to try first the issue on the question of title to the property, and judgment was entered declaring title to be in the Commonwealth.

The appellants allege that the commissioners who made the revised report in county court were not properly appointed and sworn, and also that the circuit court erred in finding that the Commonwealth had title to the disputed property.

The county court record does not contain an order appointing or reappointing commissioners to make the revised report, but it does contain the revised report of the commissioners which was signed by each of them, and in which it is stated that they were duly sworn. From the language of that report, and from the judgment approving the report, it must be ar:umed that the commissioners were properly appointed and sworn according to law. (KRS 177.-083)

In any case the question is now moot. The principal reason for the county court procedure is to enable the Commonwealth to obtain possession pending trial. This being so, the only practical purpose of an attack in circuit court on the technical propriety of the county court proceeding would be to defeat this preliminary possessory right. In this case, however, the Commonwealth took possession and commenced construction before the case was heard in circuit court. An attack on the county court judgment now, even if successful, could not accomplish a repossession of the property by the appellants.

Since possession by the Commonwealth is now an accomplished fact, this leaves only two questions to be considered: (1) The amount of compensation to which the owners are entitled; and (2) the title to the property. KRS 177.087 provides that the amount of compensation shall be determined by a circuit court jury. Original jurisdiction is exclusively delegated to the circuit court where title to land is in question. KRS 23.010. It is evident that the questions remaining to be decided are before the court which must decide them.

The land in dispute here is a strip 9 x 251 feet, which abuts U. S. 45 just within the city limits of Paducah. Previously a strip 21 feet out from the center line of the road had been used for surface, shoulder and ditches. By this action a strip 30 feet from the center line out will be utilized. The city of Paducah deeded whatever interest it had in the 30-foot strip to the Commonwealth'. Appellants claim they have title to the property at least up to the 21-foot boundary.

The McCracken Circuit Court found as a fact that the Commonwealth owned all of the strip 30 feet out from the center line. This finding was based on plats of subdivisions in the area, an actual plat made

of appellants property by reference to visible boundary markers thereon, and a plat made from the description of the property as found in appellants’ deed.

The findings of fact by a circuit court will not be set aside unless clearly erroneous. CR 52.01. The plat made of the property based on the boundary markers showed the appellants’ property line to be almost exactly 30 feet from the center line of the highway. A plat made according to the description in their deed places the property line even farther from the center line of the highway. These facts alone are sufficient to authorize the conclusion that the findings of the circuit court are not clearly erroneous.

The judgment is affirmed.


author: DAVIS, Commissioner.

text:
    Willie Mae BARKER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 26, 1964.
    Rehearing Denied Jan. 29, 1965.

      Louis P. McHenry, Hopkinsville, Robert P. Hastings, Louisville, for appellant.
    John B. Breckinridge, Atty. Gen., David Murrell, Asst. Atty. Gen., Frankfort, James P. Hanratty, Commonwealth’s Atty., Hop-kinsville, for appellee.
   DAVIS, Commissioner.

Willie Mae Barker was convicted of the murder of Orlena Denton. He appeals the judgment of the Christian Circuit Court imposing the life sentence according to the jury’s verdict.

. Two grounds of error are argued: (1) Appellant was entitled to directed verdict due to the lack of adequate corroboration of the evidence of an accomplice, and (2) appellant was denied the constitutionally guaranteed “speedy trial.”

, Twice this court considered appeals by the alleged accomplice of the present appellant. Manning v. Com., Ky., 346 S.W.2d 755; Manning v. Commonwealth, Ky., 328 S.W.2d 421. In the cited cases Manning was. on trial for the slaying of H. M. Den-ton, the husband of the victim in the present case.

Sometime during the early morning hours of July 20, 1958, H. M. Denton and Orlena Denton were brutally murdered. During the evening of the killings neighbors of the Dentons heard disturbing sounds emanating from the Denton home. The Hopkinsville police were called to the scene by one of the neighbors. However, when the officer inquired whether any help was desired, he was informed by a voice from within that nothing was amiss. The officer assumed the answer came from H. M. Denton, although it is doubtful that it did.

The officer departed. The neighbors continued to be apprehensive, and shortly heard Mr. Denton beg for mercy. These witnesses heard sounds of blows and cries of anguish from the victim, H. M. Denton; there was no showing that any outcry from Orlena Denton was heard.

Thereupon the police were called again. On the second visit, the police went into the Denton home, where the body of Or-lena Denton was discovered. She had been beaten beyond recognition. H. M. Denton was still alive, but horribly beaten and disfigured. He died shortly, but not before he told the officers “they” had beaten his wife to death. He expressed his belief of his own impending death. He did not identify the assailants.

Silas Manning ultimately was convicted of the murder of H. M. Denton. Manning testified that appellant was involved with him in the crime. The question is whether Manning’s testimony was corroborated as required by RCr 9.62. The test is met if the accomplice’s testimony is corroborated by other evidence tending to connect the defendant with the commission of the offense. Corroboration is not sufficient if the other evidence merely shows that the offense was committed and the circumstances thereof. We have concluded that the corroboration required was presented.

Appellant’s automobile was found parked approximately 100 to 150 yards from the Denton residence, just after the discovery of the murder. In the car was found an insurance policy of H. M. Denton.

Forthwith the sheriff ascertained that appellant was the owner of the automobile just mentioned. The sheriff then went to find appellant at appellant’s sister’s home. The evidence of the sheriff as to what happened when he first encountered appellant is significant, and is:

“ * * * and Willie Mae said, ‘Mr. McKinney, what do you want with me?’ And I said, ‘Willie Mae, you should know what I want with you.’ He said, ‘If anything has happened to those old people, I know who done it.’ He said, ‘Silas Manning stole my car last night and he’s the guy that done it.’ So I said, ‘All right, come on and let’s go and we’ll see if we can find Silas Manning.’ And he got in the car with me, never turned a word, he got in the back seat and we started hunting Silas Manning.”

Appellant testified in his own behalf, but made no showing that he had been informed of the finding of his car near the scene. He sought to explain that the sheriff had first said, “You and Silas Manning killed those old people.” It may be that the jury regarded his explanation as more incriminating than the evidence he sought to explain — because if the sheriff’s account is to be believed, Silas Manning’s connection with the murders was not then suspected or thought of by the sheriff or anyone else.

The officers testified that so much blood was in the Denton home that anyone who had entered the area would have necessarily been bloodstained. Appellant points out that no one produced any bloodstained clothing attributable to him. However, he claimed an alibi — saying that he had spent the night, somewhat intoxicated, at Silas Manning’s home. Yet, when the sheriff located him early on the morning of the crime, appellant was at his own place of residence; no search was made for appellant’s clothing. The sheriff said that appellant told him that he had come to his sister’s house from Manning’s “to change some clothes.”

It is our view that the circumstances just related afford that degree of corroboration required by RCr 9.62. Williams v. Com., 257 Ky. 175, 77 S.W.2d 609, and cases there discussed.

As noted, the crime occurred July 20, 1958. Appellant was indicted September 15, 1958. The actual trial occurred October 9, 1963. Sixteen continuances were granted to the prosecution. Appellant was not released from jail on bail until June 3, 1959, when the bail bond was fixed at $5,-000.

However, there is no showing that appellant made any objection to the delay until February 12, 1963, when his counsel filed motion for dismissal for lack of prosecution and because of the denial of a speedy trial.

The trial court denied that motion to dismiss, when the prosecution responded showing that Silas Manning’s trial had not terminated until December, 1962, and that the instant case had been scheduled for trial in February, 1963, but trial then could not be had because of the serious illness of the former sheriff — a material and vital witness. Silas Manning, of course, was not available as a witness so long as he remained unconvicted, as his evidence would have incriminated himself. On June 17, 1963, the trial court ordered that the prosecution present the case for trial at the ensuing term of court on pain of dismissal for lack of prosecution. The case was tried pursuant to that order.

Kentucky Constitution, § 11, guarantees the right to a “speedy public trial by an impartial jury of the vicinage.” We have few cases dealing with the topic; it is likely that this is true because most criminal cases are tried promptly — and often the defendant has no desire to expedite the trial. However, it appears settled that the right to speedy trial is one that may be waived. People of the State of New York v. Prosser, 309 N.Y. 353, 130 N.E.2d 891, 57 A.L.R.2d 295. See annotation in 57 A.L.R.2d 302, et seq. The courts have not uniformly determined what amounts to waiver. We regard as sound the rule which regards the failure of the accused to demand trial as his waiver of his right to a speedy trial. 57 A.L.R.2d. p. 326, § 10. Therefore, nothing that happened prior to appellant’s demand for trial on February 12, 1963, shall be considered.

The delay from February to October, 1963, was not, in our judgment, such delay as deprived appellant of a speedy trial. The reason for the delay was the illness of an important witness. There is no showing that the delay was sought for any sinister purpose. More importantly, there is no showing that appellant thereby lost any portion of his defense. In short, there is no indication that any prejudice to appellant’s complete right to a fair trial was caused by the delay in question. Under these circumstances, we conclude that the claim of violation of Kentucky’s Constitution is without merit.

It is observed that appellant did not avail himself of the remedy of mandamus as was done in Hoskins v. Wright, Ky., 367 S.W.2d 838.

There was no infringement of any right of appellant under the United State Constitution. The speedy trial provision of the Sixth Amendment, U. S. Constitution, does not apply in state prosecutions. Odell v. Burke, 281 F.2d 782 (7CA), cert. den. 364 U.S. 875, 81 S.Ct. 119, 5 L.Ed.2d 96. However, the due process clause of the Fourteenth Amendment, U. S. Constitution, is applicable.

In United States ex rel. Von Cseh v. Fay, 313 F.2d 620 (2dCA), a prisoner sought release by habeas corpus based on his assertion that undue delay of his trial in New York State Court had deprived him of due process. In rejecting the claim the Circuit Court of Appeals, 2nd Circuit, wrote: “To establish a violation of the due process clause appellant must prove that the delay precluded a fair determination of the charges against him.”

The court pointed to four factors relevant to consideration of whether denial of a speedy trial assumes due process proportions. Those four factors are: the length of the delay, the reason for the delay, the prejudice to defendant, and waiver by the defendant. In Fay the delay was three years and seven months, and this was characterized as “unusually long.” However, since the prosecution’s principal witness was in India, it was deemed that the reason for delay was valid. There, as here, the prisoner failed to demonstrate that any prejudice resulted from the delay. Under these circumstances, we conclude that the assertion of error is without merit.

The judgment is affirmed.


author: WOODLEY, Judge.

text:
    Gene Lafette MARABLE, Appellant, v. The STATE of Texas, Appellee.
    No. 37495.
    Court of Criminal Appeals of Texas.
    Jan. 13, 1965.
    James B. Turner, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Cletus A. Davis and Bohn Phillips, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The appeal is from a conviction for aggravated assault upon Barbara Prescott with premeditated design and by the use of means calculated to inflict great bodily harm, to-wit: “a salt shaker and her feet.” (Art. 1147, Sec. (8), Vernon’s Ann.P.C.) Appellant was found guilty by the jury and her punishment was assessed at 30 days in jail and a fine of $100.

Barbara Prescott, the injured party, was employed as a bar maid at La Bomba Lounge owned by George A. Nash and managed by Don Reed.

The appellant, a nurse, had frequented the Lounge on previous occasions when disturbances had occurred and had been barred from the Lounge by the owner and had been told by Don Reed “not to come in there any more.”

In company of her friend Dena Williams, appellant came into the Lounge about 10 P.M. and, after going to the rest room, which she stated was their reason for entering the Lounge, they came over to the bar and Dena Williams sat down and ordered a beer.

Barbara, the bar maid, had been instructed by Don Reed not to serve either of the women because they were drunk and appellant was barred from the Lounge. Barbara remained behind the bar where she had what appeared to be a pistol, but which was in fact a blank pistol with a plugged barrel.

The manager, Don Reed, told the two women to get out and appellant argued as to why they would not serve Dena Williams. Officers were called, but before they arrived the appellant threw what is described as a regular cafe-restaurant size salt shaker, approximately 1¼ inches around and 2½ inches tall, with a metal cover, striking Barbara in the mouth and knocking her down. While she was down on her back, appellant came behind the bar and kicked or stomped Barbara in the face.

The manager, Don Reed, came behind the bar after the assault and there suffered a fatal heart attack. When the officers arrived the appellant was giving him mouth to mouth resuscitation.

Appellant’s claim of self-defense raised by the evidence was rejected by the jury.

The evidence, viewed from the state’s standpoint, shows: Barbara Prescott, the injured party, testified that when Don Reed said something about calling the police, the appellant said “ ‘Nobody is going to call the law.’ And she said ‘If you open your mouth, I will get you too.’ And she pointed at me.”

Don or someone said “You better leave her alone. She has got a gun behind the bar and she will use it.”

Barbara picked up the blank pistol but Don said “Lay the gun down” and she dropped it. The next thing she knew, the appellant lunged at her and threw the salt shaker and, after stunning her and knocking her down, stomped her in the face. Her lips were cut and a cap on a front tooth was broken.

There was other testimony that Barbara “was just standing there” when she was assaulted. Barbara testified that she never threatened appellant with the pistol nor spoke a word to her “during the whole ordeal.”

There was testimony that both the appellant and her companion were intoxicated.

The evidence, viewed in the light most favorable to the verdict, is sufficient to sustain the conviction. Ohlrich v. State, 162 Tex.Cr.R. 502, 287 S.W.2d 478.

The principal ground upon which reversal is sought is the overruling of appellant’s motion for continuance based upon the absence of witnesses.

The overruling of the motion for continuance was not complained of in appellant’s motion for new trial and no affidavit of the witnesses is found in the record. The overruling of the motion for new trial shows no error. Parsons v. State, 160 Tex.Cr.R. 387, 271 S.W.2d 643; Encinas v. State, 161 Tex.Cr.R. 293, 276 S.W.2d 817; Morris v. State, 158 Tex.Cr.R. 516, 251 S.W.2d 731.

The informal bills have been considered and no reversible error appears.

The judgment is affirmed.


author: BELCHER, Commissioner.

text:
    Ex parte Adan RIOS.
    No. 37731.
    Court of Criminal Appeals of Texas.
    Jan. 13, 1965.

      J. M. Fly, Victoria, for appellant
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

Relator, an inmate of the Texas Department of Corrections seeks his release by writ of habeas corpus. After a hearing on his application for such writ before Judge T. M. Gupton of the 23rd Judicial District Court of Fort Bend County, the writ was made returnable before this court in accordance with Art. 119, Vernon’s Ann. C.C.P.

On June 24, 1960, the relator was convicted in Cause No. 41 in the District Court of Borden County for the offense of murder and his punishment was assessed at fifteen years. The validity of this conviction is not questioned.

Relator attacks the life sentence he is serving for the offense of murder which was pronounced against him on June 27, 1960, in Cause No. 2092 in the 132nd Judicial District Court of Scurry County, after a change of venue from Borden County.

The fifteen year sentence for the murder conviction in Borden County has not expired and no showing is made that it has ceased to be effective.

This court is not authorized to enter a declaratory judgment but only to in-tuiré into the legality of the confinement •®r ¡restraint of the prisoner. Ex parte Herring, 160 Tex.Cr.R. 357, 271 S.W.2d 657.

From the record it appears that if the attack on the validity of the Scurry County conviction was upheld, the relator would not be eligible for discharge. Ex parte Timberlake, 160 Tex.Cr.R. 127, 267 S.W.2d 408; Ex parte Nash, 165 Tex.Cr.R. 87, 304 S.W.2d 121.

The Supreme Court of the United States has definitely settled the question in McNally v. Hill, 293 U.S. 131, 137, 55 S.Ct. 24, 27, 79 L.Ed. 238, wherein it says:

“There is no warrant in either the statute or the writ for its use to invoke judicial determination of questions which could not affect the lawfulness of the custody and detention, and no suggestion of such a use has been found in the commentaries on the English common law.”

See also Lee v. Swope, 9 Cir., 225 F.2d 674, cert. denied, 350 U.S. 967, 76 S.Ct. 436, 100 L.Ed. 839.

The relief prayed for is denied.

Opinion approved by the Court


author: WOODLEY, Presiding Judge.

text:
    Corbet Loyd DOWDY, Appellant, v. The STATE of Texas, Appellee.
    No. 37379.
    Court of Criminal Appeals of Texas.
    Dec. 16, 1964.
    Rehearing Denied Jan. 27, 1965.

      O. H. Harris, Dallas, for appellant.
    Henry Wade, Dist. Atty., Don Koons, Howard Weinberger, Ross Teter and C. M. Turlington, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is drunk driving; the punishment, 15 days in jail and a fine of $75.

The issue of whether the appellant was intoxicated was closely contested, the state relying upon the testimony of two police officers who formed and expressed the opinion that appellant was “very intoxicated.”

The appellant, a truck driver with an. impediment by reason of an injury to his* knee, and a passenger in his car, testified] that appellant was sober.

A .45 caliber pistol was found & the glove compartment of the car. Evidence of such fact was admissible. Ross v. State, 169 Tex.Cr.R. 313, 334 S.W.2d 174.

The state went further, however, and injected the fact that a case was pending against appellant for unlawfully carrying the pistol. Also, the appellant, who had testified as to the pistol being in the glove compartment, was asked on cross-examination: “Have you ever had any trouble before — carrying a concealed weapon? ” and “ * * * weren’t you arrested for carrying a concealed weapon on July 3rd of 1957?” “ * * * How about 1954 * * * for the same thing.” All of these questions were answered in the negative.

Aside from the fact that no conviction was shown, arrests for carrying a pistol, misdemeanor offenses not involving moral turpitude, were not admissible for impeachment of appellant’s testimony (also elicited by the state) that he did not think it was illegal to have the pistol in the car.

The prejudicial effect of the questions was emphasized in the argument complained of by formal bill of exception where, in answer to argument of appellant’s counsel to the effect that the state was trying to make a criminal out of the defendant, counsel for the state said “that might not be too difficult to do.”

The errors mentioned were prejudicial j deprived the appellant of a fair trial for the offense for which he was on trial, and require reversal.

The judgment is reversed and the cause is remanded.