text:
    In re Damon A. VAUGHN, Dixon, Kentucky.
    Court of Appeals of Kentucky.
    June 14, 1963.
    John B. Breckinridge, Atty. Gen., for complainant.
    Woodward, Bartlett & McCarroll, Clarence Bartlett, Owensboro, for respondent.
   PER CURIAM.

The Kentucky State Bar Association charged Damon A. Vaughn with unlawful and unprofessional conduct in the practice of law on seven separate counts. A Trial Committee was appointed by the President of the Bar Association to hear evidence concerning the charges made. After hearing evidence the Trial Committee made its report to the Board of Bar Commissioners. The Board found Vaughn to be guilty of unprofessional conduct on four counts. He was found guilty of (1) having made a statement in a brief to this Court which he knew to be false and which was calculated to mislead this Court; (2) having bodily assaulted another attorney; (3) having solicited employment; and (4) having permitted a client to be convicted and imprisoned in order to make, a case of false imprisonment against a magistrate. The first count was submitted on the record filed in this Court. The second was admitted by Vaughn. There was conflicting testimony regarding the third and fourth, but the proof established was sufficient to sustain the findings of the Board.

It is recommended by the Board that Damon A. Vaughn be reprimanded by way of censure and that he be required to pay the costs incurred in this action.

Having fully considered the charges made, the proof taken, the briefs of respondent, of the Attorney General and of Amicus Curiae, it is our opinion that Damon A. Vaughn was properly found to be guilty of unprofessional conduct on four counts and he is hereby censured and reprimanded therefor, and he is required to pay the entire costs incurred in this action which are in excess of one thousand dollars.

PALMORE, J., not sitting.


source: Caselaw Access Project

author: MONTGOMERY, Judge.

license: Public Domain

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Anna Laura EUBANK et al., Appellees.
    Court of Appeals of Kentucky.
    June 14, 1963.

      John B. Breckinridge, Atty. Gen., Frankfort, H. D. Reed, Jr., Asst. Atty. Gen., Leslie D. Aberson, Lawrence L. Pedley, Legal Section, Department of Highways, Frankfort, for appellant.
    Lewis A. White, Mt. Sterling, for ap-pellees.
   MONTGOMERY, Judge.

The Department of Highways appeals from the condemnation judgment in favor of Anna Laura and Asa Eubank wherein damages were awarded for two parcels of land, one owned by Anna Laura and the other owned jointly with Asa, her husband. No question is raised concerning a third parcel owned by Asa. The right of way condemned was for the construction of Highway 1-64.

Appellant contends that: (1) The trial judge made prejudicial remarks during the trial; (2) Anna Laura Eubank was erroneously permitted to testify concerning the income derived from her farming operation; (3) appellees were erroneously permitted to introduce testimony relating to interference and inconvenience in the use of their lands and certain restoration costs; (4) testimony relating to amounts paid for other rights of way was erroneously admitted; and (5) pictures of comparable land were erroneously rejected.

Henry L. Jones testified as an expert appraisal witness for appellees. He was subjected to a rigorous cross-examination in which it was revealed that Jones had attended two night classes in appraisal problems conducted by Ben F. Storey, Jr. Storey was employed by appellant as Assistant Director of the Division of Right of Way. Among other qualifications, he testified that he had “taught appraisal” at the University of Kentucky for five years. He was referred to as “Professor.”

After Storey had testified for appellant and Jones had testified for appellees, the following transpired as Jones was leaving the witness stand:

“BY THE COURT: Mr. Jones, instead of you being the student I think you ought to be the professor.
“BY MR. JONES: Thank you, sir, I appreciate that deeply.”

Appellant contends that the court’s remark was prejudicial as impeaching the testimony of Storey and was an improper evaluation made by the court of the testimony given by Storey and Jones. Counsel for appellees describes the remark as a “barb” and “facetious.” Unseemly jesting concerning the testimony of a witness is an improper discrediting of such testimony by a trial judge. As applied to the present case, the comment of the trial judge indicated to the jury that he regarded Jones’ testimony more highly than Storey’s and regarded Storey’s lightly. This is an improper invasion of the jury function of evaluating the evidence. Lee v. Stamper, Ky., 300 S.W.2d 251.

The Court has condemned as prejudicial' improper comments of a trial judge made-in the presence of a jury. Louisville & N. R. Co. v. Utz, 297 Ky. 70, 178 S.W.2d 958; Martin v. Tipton, Ky., 261 S.W.2d 809; Collins v. Sparks, Ky., 310 S.W.2d 45; Rose v. Vasseur, Ky., 358 S.W.2d 540. Similar conduct has been condemned elsewhere. Levy v. Reilly, 18 A.D.2d 632, 234 N.Y.S.2d 1021 (App.Div.1962); Agee v. Lofton, 287 F.2d 709 (8 C.C.A.1961); and! authorities cited in Collins v. Sparks, supra. Application of the principles of these cases requires that the comment of the trial judge be condemned as prejudicial and reversible error.

Over the objection of appellant, appellees were permitted to introduce testimony to the effect that during the past five years the average annual income from the 58-acre farm owned by Anna Laura Eubank had been $2,400 from tobacco, $2,000 from milk, and $750 from calves, for a gross annual income of $5,150. Appellees seek to justify such testimony on the basis of Kentucky Water Service Co. v. Bird, Ky., 239 S.W.2d 66. Therein the landowner was permitted to testify that the gross receipts from his farm averaged $700 per acre over the five-year period before the taking. The Court there ambiguously said “ * * * we know of no better way to ascertain the fair market value of land than to learn its gross production — but not the profits made on it.” It was further pointed out that the production could be measured in bushels and pounds and “may as well be measured in dollars as in crops grown, since they are reduced to dollars.”

The productivity of agricultural land might well be shown by testimony concerning the amount of a crop measured in pounds or bushels when produced with appropriate fertilization, standard cultivation practices, and under normal or seasonable weather conditions. Such would eliminate many variable factors which influence farm income such as costs of production, market conditions, crop controls, and availability of agricultural lands, as well as skill of the individual.

The Bird case has been approved in so far as holding that the productivity of agricultural land in the way of crops is a proper item to consider. City of Newport Municipal Housing Comm. v. Turner Advertising, Inc., Ky., 334 S.W.2d 767. In that case the Court further held that “the injury to business or loss of profits is not a proper element of compensation for land taken.” In Commonwealth, Dept. of Highways v. Heath, Ky., 354 S.W.2d 752, introduction of evidence as to diminution in net farm profit by reason of the taking was held to be error, although not. prejudicial, because the verdict was sustained on the whole record. However, where the income sought to be shown is derived mainly from the skill of the operator of a business rather than from the productivity of the property, any testimony pertaining to that income should be excluded. Commonwealth, Dept. of Highways v. Smith, Ky., 358 S.W. 2d 487.

Anyone who has ever farmed or has engaged in agricultural pursuits knows that the productivity of the farming operation may be directly proportionate to the skill of the one doing the farming. The finest tobacco land and the best cows will not produce a profit unless the farmer is skilled in the raising and harvesting of tobacco and in the taking care of cows. Income, whether from a fatal or business, which is dependent on the skill of the farmer or businessman is a highly speculative criterion of damages, making the loss incapable of reasonable ascertainment. This was pointed out in Henderson v. City of Lexington, 132 Ky. 390, 111 S.W. 318, 22 L.R.A.,N.S., 20, wherein it was held that the property holder is entitled only to compensation for loss sustained to his property,, and this loss is the difference in the market value of his property and does not include loss occasioned by injury to his business. See also Commonwealth, Dept, of Highways v. Sherrod, Ky., 367 S.W.2d 844. See further DeFrietas v. Town of Suisun, 170 Cal. 263, 149 P. 553, holding that the growing of crops is too speculative to furnish a proper basis for damages in a condemnation case. It, therefore, is concluded that it was error to admit testimony concerning the income from tobacco, calves, and milk, and such part of the Bird opinion as may be considered inconsistent is overruled.

Appellees were permitted to ask their witnesses to take into consideration the interference with the use and enjoyment of their property by reason of “the construction operation * * * in front of the home and also alongside of the tract” and tile rock and dust blown into the yard. Appellees relied on Producers’ Wood Preserving Co. v. Commissioners of Sewerage of Louisville, 227 Ky. 159, 12 S.W.2d 292, wherein the Court, quoting from an earlier case, said:

“In condemnation proceedings landowners should be allowed to show all facts existing before the taking which a seller would adduce in attempting to make a sale and all facts resulting from the taking to which a purchaser would call attention in an effort to beat down the price.”

This question as to inconvenience seems to have been settled adversely to appellees’ contention. See Commonwealth, Dept, of Highways v. Sherrod, Ky., 367 S.W.2d 844. The factors suggested are not incident to the taking as required by Producers’ Wood Preserving, but are incidental to the construction after the taking for which liability would arise only from negligence or a failure to follow contractual specifications. Hunt-Forbes Construction Co. v. Robinson, 227 Ky. 138, 12 S.W. 2d 303; Combs v. Codell Construction Co., 244 Ky. 772, 52 S.W.2d 719; Edge v. Hook, Ky., 303 S.W.2d 310. Testimony as to restoration costs was also inadmissible. Commonwealth, Dept. of Highways v. Rankin, Ky., 346 S.W.2d 714.

Appellant objected to cross-examination of its witness concerning comparable appraisals made of adjacent land. The objection was based on the theory that testimony relating to the amounts paid by the condemnor for other rights of way was inadmissible. See Stewart v. Commonwealth, Ky., 337 S.W.2d 880, for discussion of the ground for denying the admission of testimony of such comparable sales.

In the present case the witness had testified to the appraisals placed on the Eubank lands. On cross-examination he was asked concerning the appraisals made by him just a week before on the trial of Commonwealth, Dept. of Highways v. Farris, Ky., 351 S.W.2d 526, and why he had placed a higher evaluation on the Farris land. The Farris and Eubank farms were on opposite sides of the road. Such cross-examination was proper in order to test the witness’ knowledge of the land and to determine his qualifications as an expert witness. The rule of the Stewart case as to comparable sales is not applicable to cross-examination concerning comparable appraisals.

There was no error by reason of failure to allow appellant to introduce pictures of comparable lands in the vicinity because the ■record does not reveal that appellant offered to introduce the pictures and the court was not asked to rule on the question.

Judgment is reversed with direction to grant a new trial in conformity herewith.


author: NORVELL, Justice. CULVER, Justice

text:
    VALLEY STOCKYARDS COMPANY, Petitioner, v. Dan W. KINSEL, Jr., Respondent.
    No. A-9273.
    Supreme Court of Texas.
    June 19, 1963.
    Greenwood & Russell, Martin P. Ferrero, Harlingen, for petitioner.
    Ewers, Toothaker, Ewers, Elick, Jones & Abbott, O. C. Hamilton, Jr., and Geo. D. Byfield, McAllen, Will Wilson, Austin, for respondent.
   NORVELL, Justice.

Respondent’s motion for rehearing is overruled. We adhere to our order reverS' ing the judgments of the Court of Civil Appeals and the District Court and remanding this cause to the latter court for another trial. However, the opinion handed down in this cause on March 13, 1963, is withdrawn and the following substituted therefor:

The trial court granted a summary judgment in favor of plaintiff, Dan W. Kinsel, Jr., and against defendant Valley Stockyards Company, for $17,451.02, upon the theory that the stockyards company had converted 158 head of Kinsel’s cattle. The Court of Civil Appeals affirmed, 360 S.W.2d 817.

It is doubtful if much is gained by attempting to dispose of a case of this type by use of the summary judgment procedure. A restatement, exception, or a refinement of a rule of law is not involved, but rather the application of a rule of law to a particular factual situation. The controlling question is whether or not at the time Kinsel delivered the 158 head of cattle to a cattle trader named Will Ed. Wiley, he intended that title to the cattle should pass to the said Wiley. Seemingly, it would not be a very difficult task to determine this issue upon a preponderance of the evidence basis, where the trier of facts would be entitled to consider the credibility of witnesses and the weight to be given their testimony. However, it is another thing to determine from affidavits and deposition statements which are equivocable in nature and subject to varying inferences whether or not a genuine fact issue is .raised. In determining this issue, the same rule is applied as that used to test the evidence in a conventional trial in deciding whether or not an instructed verdict should be given. The evidence (the affidavit and deposition statements) must be viewed in the light most favorable to Valley Stockyards Company, the party against whom the judgment was rendered. When statements and circumstances are subject to more than one inference or interpretation, that version most favorable to the petitioner must be accepted. In other words, the judgments of the courts below must be reversed unless we can say that it appears conclusively as a matter of law that at the time the cattle were delivered to Wiley, Kinsel did not intend that title should pass.

It appears that after the cattle had been weighed and delivered to Wiley, and the amount of money due Kinsel had been finally computed, Wiley delivered a check for the calculated purchase price to Kinsel. The check was not honored by the bank upon which it was drawn. It is Kinsel’s contention that he never parted with title to the cattle; and consequently when Valley Stockyards purchased the cattle from Wiley (without notice of Kinsel’s claim) and resold the cattle in the usual course of business, the stockyards company became liable to Kinsel as a converter.

In our opinion this proposition cannot be sustained. A jury might well agree with it, but the problem is one for the trier of facts and cannot be resolved as a matter of law.

This brings us to a somewhat detailed consideration of the facts. Wiley did not testify. Both Kinsel and Valley Stockyards Company were victims of a swindle which was perpetrated by him, and he had apparently decamped to parts unknown. Kinsel’s deposition statements are all that were available to show the nature of the transaction between him and Wiley. He was a highly interested witness, and hence his statements need not necessarily be credited, unless, of course, they could have been easily contradicted if untrue. A jury would be entitled to accept a portion of Kinsel’s testimony and reject other portions. With these rules in mind and viewing the affidavit and deposition statements in the light most favorable to petitioner, we make the following statement of the facts:

Kinsel had known Wiley for more than a year. He knew that Wiley was a “trader in livestock,” — that is, that he bought cattle for resale. He said he did not know what Wiley intended to do with the cattle which were the subject matter of this lawsuit, but it may be inferred from his account of his past dealings with Wiley that he knew that a resale of the cattle would take place shortly after he delivered the cattle to Wiley. In fact, he testified that in attempting to trace the cattle after their sale to Wiley, he discovered that certain cattle delivered to Wiley on Friday, November Sth, had been sold the following day in at least two separate sales yards in the Lower Rio Grande Valley. Kinsel met Wiley in the spring of 1960; and before the transaction of November 5th and 6th, 1961, which gave rise to this lawsuit, he had sold Wiley two or three bunches of his own cattle and one bunch of cattle owned by a partnership in which he had an interest. In none of these previous transactions had he delivered a bill of sale to Wiley. Kinsel testified that in selling cattle, he very seldom delivered a bill of sale, but that there were a number of “bill of sale drafts that are given and that sort of thing for cattle.” He was evidently referring to “a form of instrument (sometimes) used where a bill of sale is given and is conditioned upon the draft’s being honored.” Kinsel in all his transactions with Wiley including the one which is the subject matter of this litigation accepted ordinary bank checks signed by Wiley.

The sale here in dispute took place on November 4th and 5th of 1961. The cattle were sold by the pound, and the terms of the sale were agreed to on Friday, November 4th. The cattle were delivered by Kin-sel to Wiley in installments. Kinsel lived in Cotulla in La Salle County. He transported the cattle by truck to Encinal where they were weighed and delivered to Wiley. About 69 head were delivered on Friday, the fourth, and the remainder (89 head) on Saturday, the fifth. After the delivery of the final installment of cattle on Saturday, Wiley came to Kinsel’s home near Cotulla where the amount due for the cattle under the agreement of the parties was figured up, and Wiley delivered Kinsel his check for such amount. This was late in the afternoon of the fifth.

Kinsel’s deposition testimony hearing directly upon the delivery of the cattle and the acceptance of the check was as follows:

“Q: And, of course, he paid by check on November 4th and 5th for the cattle he got at that time? A: That is right.
“Q: And, of course, if this hadn’t been acceptable to you, you wouldn’t have delivered the cattle to him, would you? The payment by check. A: I delivered the cattle to him, yes.
“Q: That is what I mean. If it hadn’t been acceptable, you wouldn’t have delivered him the cattle? A: I guess the delivery speaks for that, doesn’t it.
“Q : Well, I am just trying to get you to say so. That is all. In other words, when he delivered you the check, the cattle were paid for and you delivered him the cattle and you knew he was taking them off from your ranch ? A: When he gave me a check, I delivered him the cattle, yes, that is right, and he took the cattle.
“O': And you accepted the check in payment for the cattle? A: I accepted the check for the cattle, yes.
“Q: Now, I guess you told Will Ed that these weren’t his cattle until the check cleared the bank, didn’t you? A: I don’t recall telling him that.
“Q: Well, if you had told him under the circumstances, you would have recalled it, would you not? A: I suppose I would.
“Q: You didn’t say for instance, ‘Now, Will Ed, you hold on to these cattle until this check clears,’ did you? A: No, I didn’t say anything of that nature.
“Q: Well, you said that now that you didn’t tell Will Ed not to dispose of the cattle when he purchased them, is that correct? A: No, I didn’t tell him.
“Q: In other words, it was unconditional delivery by you to him of the cattle? I mean you turned them over to him knowing he was going to put them in the trucks and take them off? A: That is right.
“Q: It was unconditional? A: I turned them over to him knowing that he was going to put them in the trucks and take them off, that is right.
“Q: And when he took them off in the truck, you knew, knowing by having known Will Ed, that he was likely to take them to a sale yard and sell the cattle? A: I did not know what he was going to do with the cattle.
“Q: Well, I know that you said he didn’t specifically tell you but you knew that he was in that business and that he very likely would take at least part of them to a sale yard and sell them? A: I will say I knew there was possibility that he would put them in a sale yard. I didn’t know what he was going to do with them. Possibility of him doing nearly everything with a group of cattle just like anybody, or any time you sell cattle, you don’t know exactly what you are going to do with them. They won’t tell you.
“Q: Well, even knowing that possibility, you didn’t make any statement to him in connection with the check being honored, you delivered the cattle to him unconditionally and accepted his check in payment ? A: I delivered the cattle to him and accepted his-check and he put them in his-truck and hauled them off, yes-sir.
“Q: All right. And he put them in his-truck and you knew that is what: he was going to do ? A: I didn’t, know what he was going to do. with the cattle.
“Q: That he was going to put them ini the truck and haul them off? A:: That is right.
“Q: He wasn’t going to leave them' there? A: That is right.”

Respondent relies upon the general rule that where a cash sale is involved and personal property is delivered in exchange for a check, there is a presumption that the parties did not intend that title to. the property should pass until the check was honored by the drawee bank. Lang v. Rickmers, 70 Tex. 108, 7 S.W. 527; Middlekauff v. State Banking Board, 111 Tex. 561, 242 S.W. 442; Berlowitz v. Standley, 117 Tex. 362, 5 S.W.2d 963; Muldrow v. Texas Frozen Foods, Inc., 157 Tex. 39, 299 S.W.2d 275. This presumption, however, is not conclusive but may be rebutted. If a jury could conclude from the evidence now in the affidavit and deposition form that the delivery of the cattle was made with the intention of passing title to Wiley at that time, it would necessarily follow that Valley Stockyards could not be held liable as a converter by purchasing the cattle from Wiley. Unless we are prepared to say that an intention to pass title at time of delivery must be shown by an expressed agreement to overcome the presumption above noticed, then we must hold that the circumstances disclosed in the present record are sufficient to take the case to the jury. In our opinion, circumstances may be relied upon to overcome the presumption. Here a contract was made. This was followed by delivery of a number of truckloads of cattle extending over a two-day period. The delivery was made to a “cattle trader,” and it is possible, if not probable, that some of the cattle were resold by Wiley before the check had been delivered. Kinsel said that he “accepted the check for the cattle.” A jury could conclude that, in view of the past dealings and relationship between the parties, it was their intention that as soon as the weight of each particular lot of cattle was ascertained and the cattle were loaded into the trucks which Wiley had provided, they became Wiley’s property to sell and dispose of as he saw fit; that is, that title to the cattle passed to Wiley with delivery of possession, and that thereby a debt arose payable when the weight of the entire lot of cattle sold had been ascertained and the full amount of payment had been calculated.

Kinsel seems to have treated the check as a cash item after he received it on November 5th. He did not deposit it in a bank for collection, but on the contrary delivered it to his creditor, Winter Garden Production Credit Association, as a partial payment upon an indebtedness due to such Association.

We think petitioner’s contention that there is a genuine issue of fact involved in the case has support in the authorities.

While the facts stated in the opinion of this Court in MacDonald v. Carlisle, 146 Tex. 206, 206 S.W.2d 224, are stronger than those disclosed by the present record, it was there held as a matter of law that although the check given by MacDonald to Carlisle and wife for a royalty deed was dishonored by the bank upon which it was drawn, nevertheless the title to the property described in the deed passed to MacDonald upon acceptance of the check by the Carlis-les. This Court said:

“Their course with respect to the check after receiving it, together with their testimony, discloses that they accepted it unequivocally. * * * MacDonald’s check, or draft, was actual payment for the royalty interest described in the deed since the circumstances disclose that both MacDonald and the Carlisles so intended.”

The question of whether a sale is absolute or conditional may often be one of fact. In Continental Bank & Trust Co. v. Hartman, Tex.Civ.App., 129 S.W. 179, no writ history, it was said:

“The next question is: Did the undisputed evidence show that plaintiffs sold the cotton in question unconditionally with the intention of passing the title, or if sold upon condition that it should be paid for in cash, such condition, after delivery, was waived? We do not think the testimony conclusively established either such a sale or such waiver. On the contrary, we think that whether the sale of plaintiffs’ cotton was to be for cash, and payment a condition precedent to the passage of title or whether, if such payment was a condition precedent to the vesting of title in Fletcher & Son, such condition was by the acts of plaintiffs waived, were questions of fact for the determination of the jury. That a sale of personal property made for cash, the delivery thereof being subject to the condition of a cash payment being made, passed no title, seems to be a well-settled principle. It is equally well settled that such a condition may be waived by the seller, and that in such event the title passes, and he cannot thereafter reclaim the possession of the goods. This condition of payment or its waiver may be either express or implied; neither, however, need be express, but can be inferred from acts and circumstances.”

See also, Lang v. Rickmers, supra; State Life Ins. Co. of Indiana v. Little, Tex.Civ.App., 264 S.W. 319, wr. ref.; McAdow Motor Co. v. Luckett, Tex.Civ.App., 131 S.W.2d 267, no wr. hist.; Littlejohn v. Johnson, Tex.Civ.App., 332 S.W.2d 439, no wr. hist.

The opinions in the cases above cited disclose varying factual situations, but the rules of law deduced therefrom are capable of being stated clearly, although their application may present difficulty. In a transaction where a check is given in exchange for property, the title received by the purchaser is not necessarily conditioned upon the check’s being paid by the bank upon which it is drawn. The cases speak of a check being delivered unequivocally. This means that the property was sold unconditionally with the understanding that the title should then pass. This understanding or intention may be shown not only by direct evidence but may be inferred from circumstances giving rise to a reasonable inference that title was to pass upon delivery of the property.

The circumstances above mentioned if taken singly or in part only might not be sufficient to support a theory of unconditional delivery; but a jury would be entitled to consider all of them and draw the inference that because of their past relationship, Kinsel had no doubts as to the worth of Wiley’s check; that he accepted it in payment for the cattle which he delivered and then proceeded to use the check to make a payment upon the debt owed by him to the credit association. Kinsel may have been overtrusting, and certainly he was careless as to his own welfare. Anyone familiar with the check-bill of sale procedure, who deliberately agreed to accept an ordinary check for an amount as large as $17,451.02, must have had great confidence in the maker of the check and a jury would be authorized to so conclude.

This is undoubtedly a hard case, as-are all cases where one of two innocent parties must suffer because of the fraud: of a third party, but we are convinced that, the record discloses genuine fact issues.

In view of our holding upon the point discussed, it is not necessary to consider the question of estoppel mentioned in the briefs. The record upon another trial probably will be more complete than that now before us, and a consideration of such matters now would be of little assistance to the trial judge in conducting another trial.

SMITH, CULVER and WALKER, JJ., dissenting.

STEAKLEY, J., disqualified and not sitting.

CULVER, Justice

(dissenting).

The court lays considerable stress on the fact that circumstances indicate Kinsel believed that Wiley’s check would be honored upon presentment at the bank, saying that one who deliberately agreed to accept an ordinary check for an amount as large as $17,451.02 must have had great confidence in the maker of the check and the jury would be authorized to so conclude. In my opinion that fact is established beyond any doubt. Of course Kinsel believed that the check was good, otherwise he would not have accepted it in the first place. I proceed from that premise.

As stated by the court, it is the well-recognized rule in Texas that, when a sale is made for cash and payment is by check, title to the chattels sold does not pass until the check is honored by the drawee bank, the payment by check being presumed to be conditional payment, and if accompanied by delivery of the chattels, such delivery is also presumed to be conditional. The acceptance of a check by the seller does not imply an extension of credit to the buyer.

The rule is thus phrased in Lang v. Rickmers, 70 Tex. 108, 7 S.W. 527:

“ * * * When the contract of sale is that the goods sold shall be paid for with cash, or notes executed by the vendee or a third person,, the sale is on condition that the payment be made, and until this is done the title to the goods remains in the vendor notwithstanding they may have come into the possession of the vendee, unless it appears that they were delivered to the purchaser with intent to waive the condition of payment. * * * ”

This was a cash transaction. Kinsel did not expressly or by implication extend ■credit to the purchaser. The question is then not whether Kinsel had confidence in Wiley but whether he delivered the cattle with the intent to waive the condition of payment or intended to accept the check in full, final and complete payment regardless of whether it should be later honored or ■dishonored.

Only by Kinsel’s deposition and affidavit and by circumstances does Valley Stockyards seek to overcome the presumption that the check was accepted by Kinsel conditionally. A party to a transaction of this nature may not testify subjectively as to what his intention was at the time and such testimony will not be considered unless it be by way of an admission. Although pressed repeatedly by leading questions calling for conclusions, considered fairly, Kinsel’s answers are not contradictory nor is there to be found in his deposition or affidavit any •admission of an intent to convey title unconditionally. In my opinion it denotes no more than that Kinsel accepted the check and delivered the cattle.

I think the conduct of Kinsel in endorsing the check over to the Credit Association was not such a circumstance as would indicate an intention on his part to have passed title to the cattle unconditionally or to Rave accepted the check in absolute and final payment any more than his depositing the check in his own bank for collection would so indicate. The fact that Kinsel, after he learned that payment on the check had been refused, tried to ascertain the disposition of the cattle, and to find Wiley to me indicates only the conduct of an ordinarily prudent seller in an effort to protect his own interest. What else was there for him to do? The cattle had been sold and dispersed. Any effort to recover possession of them would have been futile.

The authorities cited by the court in support of its holding have little, if any, application to the facts here and are clearly distinguishable. To begin with the court quotes at some length from Continental Bank & Trust Co. v. Hartman, Tex.Civ.App., 129 S.W. 179, no writ history. In that case the payee brought a suit against the maker of the checks given in the cotton transaction and against the bank on which the checks were drawn, alleging that the bank had authorized the maker to give checks on it for all cotton purchased and guaranteed that the bank would honor the same. In the alternative the plaintiff alleged that they sold the cotton for cash and that the bank had converted the cotton sold to the maker of the checks. Obviously in that case the plaintiffs themselves not only brought suit on the checks but by pleading and proof raises a fact question as to the bank’s guarantee of payment.

In Lang v. Rickmers, supra, title to the chattels was held not to have passed because the purchaser had failed to execute and deliver the notes as called for in the contract. State Life Ins. Co. of Indiana v. Little, Tex.Civ.App., 264 S.W. 319 did not involve a sale but rather a check given in payment of a life insurance premium. On receipt of the check the company issued its receipt and although the company had notice that the check was protested for nonpayment and returned, the company had not communicated further with the deceased prior to his death. The court further pointed out that the company by retaining possession of the check acquired a right against the insured, which it did not have theretofore since it could treat the check as a personal obligation and collect by suit.

McAdow Motor Co. v. Luckett, Tex.Civ.App., 131 S.W.2d 267, no writ history, is illustrative of a case where the evidence raises a fact question as to whether Mc-Adow subsequently to the transaction waived the condition of payment. In that case the dealer sold an automobile to another dealer whose check given in payment was dishonored. The seller had executed and delivered a bill of sale, together with the car to the purchaser. After payment of the check was refused the dealer redeposited the check for collection and made several trips thereafter in an attempt to collect the amount of the check from the purchaser.

As to the holding in Littlejohn v. Johnson, Tex.Civ.App., 332 S.W.2d 439, no writ history, the court recites that the sole issue in that case was whether or not the tender of payment to Littlejohn was sufficient. The check was given by Texaco, Inc. in payment of a money judgment. All that the payee had to do to receive his money was to endorse the check and present it for payment. He refused to so do because the name of his attorney was included as a payee, although the check had been endorsed by the attorney and given to Littlejohn.

In MacDonald v. Carlisle, 146 Tex. 206, 206 S.W.2d 224, the vendor executed and delivered to the vendee a warranty deed to a certain royalty interest for the sum of $1,000.00. An implied vendor’s lien was retained. Payment of the check given in that amount was refused and the vendee on ascertaining that fact tendered to the vendors the money for the full amount. The Carlisles, although refusing the tender,, retained possession of the check for more than five years until it was later offered in evidence on the trial. The point on which the application for writ of error was granted alleged that the Carlisles in the light of undisputed facts were not entitled to cancellation of the deed executed and delivered by them and that they had waived such right if it ever existed. These cases seem rather to negative the idea that under the facts in the case here, a jury would be warranted in finding that Kinsel intended to accept the check in full and complete payment.

Ewing v. Sylvester, Tex.Civ.App., 94 S.W. 405, no writ history, is a case somewhat similar to McAdow. Restating the rule announced in Lang v. Rickmers, the court said: “A waiver must be made voluntarily, and it is a question of fact that must be made to clearly and plainly appear.” In that case the terms of the sale were part cash and installment notes. The check for the cash payment was dishonored. The seller allowed the purchaser to retain the machine notwithstanding the fact that the check was not paid and notwithstanding the purchaser’s repeated and unfilled promises during many weeks to pay the same. Even after one of the notes became due the seller was still insisting upon the cash payment and attempting to make collection. That evidence was held sufficient to justify a finding that the seller had waived a condition in the contract requiring the payment of a portion of the purchase price in cash. Globe Milling Co. v. Minneapolis Elevator Co., 44 Minn. 153, 46 N.W. 306, 307, is authority for the proposition that: “To constitute a waiver there must be not only an act of delivery, but an intent not to insist on immediate payment as a condition of the title not passing.”

The court is hard pressed to point out any certain fact or circumstance that would support the theory of unconditional delivery. The court says that, while any one taken separately might not be sufficient in itself, but considered altogether, apparently on the theory that zero plus zero equals one, the jury might draw the inference that Kinsel believed Wiley’s check would be paid on presentation; that he accepted it in payment of the cattle and used the check to apply on his debt to the Credit Association. The inference to be drawn, if any, to justify submission of this case to the jury is that Kinsel, at the time he accepted the check, ■waived payment upon presentation. Such an inference, in my opinion, is not justified. To submit this case to a jury is to invite mere speculation.

I can conceive of a situation where one in possession of perishable commodities, or for some other like reason, might he so anxious to sell, that he would intend title to pass upon delivery and take a chance on the check being paid or collected subsequently, but where the goods are sold at the prevailing price and the seller is confident that the check will be paid on presentation, the contrary would seem to be almost conclusive.

Stockyards Company alleged in its answer that it was the custom and usage in La-Salle County “to buy, sell, transfer, convey and deliver possession and ownership of cattle without asking for or giving any muniment of title or bill of sale,” and they further say that the existence of such custom and usage is supported by Kinsel’s testimony. Actually all that is alleged simply means that people customarily buy and sell cattle without giving or requiring a bill of sale. It does by no means assert that it is the custom in LaSalle County, for the seller on acceptance of a check whether the check be good or not to pass immediately to the purchaser the unconditional title. So far as the testimony of Kinsel is concerned he says no more nor less than that he does not very often give a bill of sale and that few cattle men do.

The court speaks of the Winter Garden Production Association’s custom in its cattle transactions of using a combination check and bill of sale document with which Kinsel was thoroughly familiar. Of course if the sale had been expressly conditioned on title not passing until the attached check was paid the case would not be here for decision. It was Wiley’s check that Kinsel accepted. I think it will not do to say that because Kinsel did not insist on Wiley’s using the combination check suggested by the court that this failure would be taken as evidence that it was Kinsel’s intention to waive payment of the check any more so than Kinsel’s failure to require the cash or a cashier’s check from Wiley before delivery of the cattle.

I might point out that Art. 6903, Vernon’s Ann.Civ.Stats., requiring a written transfer in cattle sales is applicable in LaSalle County, though not in Hidalgo County (Art. 7005). The article plainly provides in part that possession of any animal absent a written transfer shall be “prima facie illegal.”

As said in Wells v. Littlefield, 59 Tex. 556,

“ * * * The penalty for not taking such a written instrument upon receiving possession of cattle is that the possession shall be deemed prima facie illegal. It is not made conclusively unlawful, but is open to explanation; and nothing prevents a title to such property from passing without a hill of sale if it can be proved that it was bona fide made, upon sufficient consideration, and that no evasion of the law was intended.”

Stockyards Company has failed to assert or prove any such custom or usage as would serve to raise any fact question in this case.

The court recites that Kinsel was over-trusting and careless as to his own welfare. While this is also beside the point he was no more so, I think, than Valley Stockyards who purchased and paid Wiley for the cattle evidently with no inquiry as to title and not only that but resold some of the same cattle to Wiley and accepted in payment therefor his worthless check.

I would affirm the judgments of the trial court and Court of Civil Appeals.

SMITH and WALKER, JJ., join in this opinion.

      . The appeal was transferred from the Fourth to the Eleventh Supreme Judicial District upon an equalization of the dockets of the Courts of Civil Appeals in accordance with the provisions of Article 1738, Vernon’s Ann.Tex.Stats.


author:
CALVERT, Chief Justice.
      GREENHILL, Justice

text:
    Anna HEIEN et al., Petitioners, v. W. T. CRABTREE, Administrator, et al., Respondents.
    No. A-9469.
    Supreme Court of Texas.
    May 22, 1963.
    Rehearing Denied July 10, 1963.
    Fike & Hunter, Dalhart, for petitioners.
    E. E. Coons, County Atty., Stratford, Waggoner Carr, Atty. Gen., Austin, J. H. Broadhurst, Asst. Atty. Gen., for respondents.
   CALVERT, Chief Justice.

Petitioners, as plaintiffs, sought by suit in the county court of Sherman County to establish that they were the heirs at law of R. F. Frei, deceased, and that as such they were the owners of certain real and personal property constituting his estate. The county court denied the relief sought. Appeal was perfected to the district court. In that court respondents filed a motion for summary judgment, principally on the-ground “that if all of allegations of petitioners’ pleadings on file herein were admitted to be true, petitioners would not be entitled to any relief prayed for by them and that respondents are entitled to judgment as a matter of law.” The motion was granted, and judgment was rendered that petitioners take nothing. The Court of Civil Appeals affirmed. 364 S.W.2d 271. We affirm the judgment of the Court of Civil Appeals.

The question squarely presented is whether a legal status of parent and child is created by parties assuming and living in a relationship of parent and child pursuant to an unperformed agreement to adopt the child. We hold that it is not.

Petitioners are alleged to be all of the heirs at law of Frank and Rosa Frei, husband and wife, both of whom predeceased R. F. Frei. Their other allegations may be summarized as follows: that R. F. Frei, born out of wedlock, was delivered by his mother, when yet quite young, to Frank and Rosa Frei about the year 1886 under an agreement that they would legally adopt him; that R. F. was given the name of Frei and remained in the home of Frank and Rosa until he was twenty-two years of age; that during a period of approximately twenty years the parties lived in a relationship in all respects consistent with that of parent and child, discharging the duties and obligations and receiving the benefits of the relationship as fully as if R. F. had been a natural child of Frank and Rosa. There is no allegation that R. F. was formally adopted according to statutory procedures; to the contrary, it is alleged that there was an equitable adoption or adoption by estoppel.

R. F. Frei never married, and died intestate. If the facts alleged and assumed to be true create a legal status of parents and child between Frank and Rosa Frei and R. F. Frei, the provisions of § 3(b) and § 40 of the Probate Code, Vernon’s Texas Civil Statutes, might have important bearing on petitioners’ rights of intestate succession. The pertinent provisions of those sections read as follows:

“§ 3. Definitions and Use of Terms
“When used in this Code, unless otherwise apparent from the context:
“(a) * * *
“(b) ‘Child’ includes an adopted child, whether adopted by any existing or former statutory procedure, or by acts of estoppel *
“§ 40. Inheritance By and From an Adopted Child
“For purposes of inheritance under the laws of descent and distribution, an adopted child shall be regarded as the child of the parent or parents by adoption, such adopted child and its descendants inheriting from and through the parent or parents by adoption and their kin the same as if such child were the natural legitimate child of such parent or parents by adoption, and such parent or parents by adoption and their kin inheriting from and through such adopted child the same as if such child were the natural legitimate child of such parent or parents by adoption. The natural parent or parents of such child and their kin shall not inherit from or through said child, but said child shall inherit from and through its natural parent or parents. Nothing herein shall prevent any parent by adoption from disposing of his property by will according to law. The presence of this Section specifically relating to the rights of adopted children shall in no way diminish the rights of such children, under the laws of descent and distribution or otherwise, which they acquired by virtue of their inclusion in the definition of ‘child’ which is contained in this Code.”

The inclusion of the quoted language in section 3(b) of the Probate Code, adopted in 1955, is the first legislative recognition in this state of “equitable adoption”. The language used indicates a legislative assumption that our courts had held that a child may be adopted by acts of estoppel, and thus that a legal status of parent and child is created by acts of estoppel. Not so.

Before the enactment of Art. 46a, Vernon’s Texas Civil Statutes, in 1931, adoptions were effected in this state by the execution, authentication or acknowledgment and recording by the adopting parent or parents of a written instrument of adoption. In a series of cases arising out of fact situations having their inception prior to 1931 this Court recognized and affirmed a right of intestate succession in children who, being neither natural nor legally adopted children of the intestate, were held to be entitled to the right by “equitable adoption” or "adoption by estoppel.” The cases grew out of efforts to adopt which were ineffective because of failure to comply strictly with statutory procedures, or of agreements to adopt which by neglect or design were not performed. See Cubley v. Barbee, 123 Tex. 411, 73 S.W.2d 72; Jones v. Guy, 135 Tex. 398, 143 S.W.2d 906, 142 A.L.R. 77; Cavanaugh v. Davis, 149 Tex. 573, 235 S.W.2d 972. For an analysis of these and other cases dealing with the problem, see 36 Texas Law Review 30. The descriptive phrases, “equitable adoption,” “adoption by estoppel,” and “adoptive status,” are used in decided cases strictly as a shorthand method of saying that because of the promises, acts and conduct of an intestate deceased, those claiming under and through him are estopped to assert that a child was not legally adopted or did not occupy the status of an adopted child. Jones v. Guy, supra. Analysis of the cited cases makes clear that we did not intend to hold, and did not hold, that “equitable adoption” or “adoption by estoppel” is the same as legal adoption or that it has all of the legal consequences of a statutory adoption.

In the cited cases the right of intestate succession was asserted by the child. If that were the situation in this case, the facts alleged by petitioners, if found to be true, would undoubtedly support a holding that those claiming as heirs of Frank and Rosa Frei were estopped to assert that R. F. Frei was not an adopted child or did not occupy the status of an adopted child. But that is not the situation in this case. Here, the heirs of Frank and Rosa Frei are asserting a right of intestate succession to the estate of R. F. Frei. It was their burden to allege a legal right of succession. They could discharge that burden by alleging and proving that R. F. Frei was either a natural child or an adopted child of Frank and Rosa Frei through whom they claim. Admittedly he was neither.

But petitioners contend that the doctrine of estoppel in pais should be applied both ways; that inasmuch as they would be estopped to assert that R. F. Frei was not an adopted child if he had survived Frank and Rosa and had sought to establish a right of inheritance to their estates, the administrator of his estate should be es-topped to assert that he was not an adopted child when they, as heirs of Frank and Rosa, seek to establish a right of inheritance to his estate. They assert that on this theory they have alleged a right of succession. How can that be ?. Petitioners’ rights can be no better or higher than the rights of those through whom they claim. If Frank and Rosa had survived R. F. and were seeking to establish a right of succession to his estate, they would not be heard to claim the aid of equity. Through neglect or design they breached their agreement to adopt. More than that, there would be no basis in promises, acts or conduct on the part of R. F. upon which to erect an estoppel. Neither he nor his mother breached a duty to Frank and Rosa or in any way misled them to their detriment.

Petitioners rely upon Alexander v. Lamar, 188 Ga. 273, 3 S.E.2d 656, 123 A.L.R. 1032, and Grand Lodge of Order of Sons of Herman v. Prater, Tex.Civ.App., 2 S.W.2d 500, no writ history. Both cases may be distinguished.

In Alexander v. Lamar, a mother who had surrendered custody of her son to another pursuant to an agreement that it would be adopted, sought to establish a right to an interest in property of the adoptive parent by inheritance through her deceased son. There had been no legal adoption. The Supreme Court of Georgia held on the facts alleged that the agreement to adopt was subject to specific performance, that equity would regard that as done which should be done, that the adoption would be regarded as legally consummated, and that the statutes of the state, properly interpreted, terminated the right of a natural mother to inherit from or through her child once adoption by another was consummated. Aside from the other obvious factual distinctions between Alexander v. Lamar and the instant case, this Court in Cubley v. Barbee, supra, indirectly rejected the specific performance theory of establishing an adoptive status of a child not legally adopted and rested its right to intestate succession on estoppel in pais. That holding was deliberately accepted as the proper theory in Jones v. Guy, supra, and Cavanaugh v. Davis, supra.

Grand Lodge of Order of Sons of Herman v. Prater, supra, was a suit by Emma Prater to recover the proceeds of a fraternal benefit certificate issued to and on the life of Albert Kohl in which Emma was the designated beneficiary and was stated to be the adopted daughter of the insured. Grand Lodge defended the suit on the ground that Emma was not legally adopted and that she had no insurable interest in the life of Kohl. The Court of Civil Appeals affirmed a recovery by Emma on two grounds: first, that the evidence would support a finding that Emma was the adopted daughter of Kohl, and second, that proof of insurable interest was not essential to recovery of insurance proceeds by a designated beneficiary. All of the cases cited by the court are cases supporting its second ground for affirming recovery. For that and other reasons, the first ground for affirmance is of no authoritative significance and may be disregarded.

The question before us is one of first impression in this state. The Court of Civil Appeals decided it correctly. The reasoning by which our conclusion has been reached is supported by the reasoning of the Supreme Court of Missouri in Rumans v. Lighthizer, 363 Mo. 125, 249 S.W.2d 397, 401, where, in answering an argument similar to that presented by petitioners in this case the court said:

“An equitable adoption functions to enforce the rights of the child under the agreement to adopt. The child is not chargeable with the adoptive parent’s failure to record the deed, and the enforcement in equity of the agreement to adopt should not confer additional rights upon the adoptive parent. The right of inheritance from the child is a different right from that of the child to enforce the agreement to adopt. That a legal or statutory adoption, binding on all persons in accord with the statutory provisions, differs from an equitable adoption, which is based upon contract for the protection of the child and binding on the parties or those in privity with them, is the effect of Menees v. Cowgill, 359 Mo. 697, 223 S.W.2d 412, 418 * * *."

The same reasoning is basic to the concurring opinion of Associate Justice Hughes in Moorman v. Hunnicutt, Tex.Civ.App., 325 S.W.2d 941, 942, writ refused, N.R.E.

Respondents’ motion for summary judgment on the pleadings was properly granted. 30 Texas Law Review 285, 297; Schroeder v. Texas and Pacific Ry. Co., Tex.Civ.App., 243 S.W.2d 261, no writ history. The judgment of the Court of Civil Appeals is affirmed.

GREENHILL and SMITH, JJ., dissenting.

GREENHILL, Justice

(dissenting).

The particular question in this case is whether the property of R. F. Frei may be inherited by those claiming to be his heirs or whether his property must go to the State of Texas by escheat. The Court has held that the property goes by escheat to the State.

Reduced to its simplest form, the question is this: assuming (as the majority opinion does) that the facts are that there has been an adoption by estoppel so that the child would inherit from the adoptive parents, may the adoptive parents also inherit from the child? The majority has held not; and if the child dies intestate possessed of property (even property given him by his adoptive parents), the property may not be inherited by the adoptive parents; and, under facts like those in this case, the property of the child escheats to the State. With this I cannot agree.

. ^ Of course, whether property may be inherited or not depends upon the statutes of descent and distribution. These are now contained in our Probate Code. Section 3(b) of this Code defines “child” as follows:

“ ‘Child’ includes an adopted child, whether adopted by any existing statutory procedure or by acts of estoppel * * *

The Code then continues (with matter in brackets being added here) :

“§ 40. Inheritance By and From an Adopted Child
“For purposes of inheritance under the laws of descent and distribution, an adopted child shall be regarded as the child of the parent or parents by adoption, such adopted child [which under Section 3, above, includes children adopted by acts of estoppel] * * * inheriting from and through the parent or parents by adoption and their kin the same as if such child were the natural legitimate child of such parent * * *, and such parent or parents by adoption and their kin inheriting from and through such adopted child * * *. The presence of this Section specifically relating to the rígñts of adopted children shall in no way diminish the rights of such children * * which they acquire by virtue of their inclusion in the definition of ‘child’ which is contained in this Code.”

Thus Section 40 specifically refers to the definition of “child” contained in Section 3; and Section 3 includes adoption “by acts of estoppel.” Section 40 then plainly states that such adopted child [including those adopted by acts of estoppel] shall inherit through their adoptive parent, and such adoptive parents and their kin shall inherit from and through the adopted child as defined in Section 3.

Therefore, whatever the law was before the adoption of the Probate Code, it is clear that the Legislature has provided an adoptive status whereby there shall be inheritance by the child, and from the child, rather than an escheat of the property to the State as we have here.

This legislation, to me, recognizes an adoptive status: once the acts of estoppel have occurred and matured, a status has been created. The Legislature has recognized this status and has provided for inheritance, both ways, under it.

The majority of the Court simply rejects this status. It treats adoption by estoppel as a sort of continuing contract enforceable only on one side. And thus, in my opinion, the Court has simply refused to recognize and carry out the plain provisions of the statute.

I would reverse the judgments below and remand the case for a trial on the merits.

SMITH, J., joins in this dissent.

      . All references herein are to Vernon’s Annotated Texas Civil Statutes. Emphasis is mine.


author: WALKER, Justice. GRIFFIN, Justice

text:
    John W. LANDERS et al., Petitioners, v. B. F. GOODRICH COMPANY et al. Respondents.
    No. A-9385.
    Supreme Court of Texas.
    May 15, 1963.
    Rehearing Denied July 10, 1963.
    Kolander, Moser & Templeton, Amarillo, for petitioners.

      Gibson, O'chsner, Harlan, Kinney & Morris, Underwood, Wilson, Sutton, Heare & Berry, Harlow Sprouse, Amarillo, with above firm, for respondents.
   WALKER, Justice.

The question to be decided in this case is whether a final judgment in a wrongful death action always bars a subsequent suit by the personal representative of the decedent against the same defendant for the recovery of funeral expenses and property damage resulting from the accident which caused the decedent’s death. Guinn E. Lan-ders and his wife, Feme Landers, lost their lives when the automobile in which they were riding collided with a vehicle operated by Robert B. Bohanon, who was the employee of and acting in the scope of his employment for B. F. Goodrich Company at the time. The decedents, each of whom died intestate, wére survived by their minor children, Roger Dale Landers and Rickie Lee Landers, and by their parents, John W. Landers, Maggie Landers, L. H. Stephens, and Fannie Stephens.

Suits were brought against B. F. Goodrich Company and Bohanon, hereinafter referred to as respondents, by John W. Landers and L. H. Stephens, acting individually and on behalf of their wives and as next friends for the minor children, to recover damages under the wrongful death statutes, Articles 4671 et. seq., Vernon’s Ann.Tex.Civ.Stat., and for personal injuries sustained by Roger Dale Landers in the accident. The several causes were consolidated, and after a jury trial the parties agreed upon a $90,00,0.00 settlement which was duly approved by the court and. reduced to judgment wherein the recovery was apportioned between the minor children and their grandparents. . The judgment was promptly paid and satisfied by respondents.

Several months later John W. Landers was appointed and qualified as administrator' of the estate of. Guinn Er Landers, deceased. and L. H. Stephens, was appointed and qualified as administrator of the estate of Feme Landers, deceased. The two administrators then filed the present suit against respondents to recover medical and funeral expenses and damage to the automobile. Respondents’ motion for summary judgment was granted by the trial court, and the Court of Civil Appeals affirmed. Tex.Civ.App., 361 S.W.2d 909.

Guinn E. Landers was killed instantly. The medical expenses mentioned in the petition were incurred for the treatment of Feme Landers prior to her death. These expenses are no longer in issue, because the administrator of her estate did not appeal from the judgment of the trial court. The administrator of the estate of Guinn .E. Landers did appeal and is petitioner here. We must determine whether the judgment in the former suit bars his action for funeral expenses and damage to the automobile.

Our survival statute, Art. 5525, Vernon’s Ann.Tex.Civ.Stat., speaks of .actions for personal injuries, and. it has been said that the Texas decisions holding that an action for damage to real or personal property survives the death of the owner are based upon an erroneous historical assumption. Morton, Survival of Actions for Property Damage in Texas, 37 Tex.Law Rev. 905, 908. The rule that such actions do survive has long been recognized, however, by both the courts and the Legislature, and we will not depart from it now. See Acts 1895, 24th Leg., p. 143, ch. 89; G.L. Vol; 10, p. 873; Ferrill’s Adm’x v. Mooney’s Ex’rs, 33 Tex. 219; Galveston, H. & S. A. R. R. v. Freeman, 57 Tex. 156; Texas & N. O. R. Co. v. Smith, 35 Tex.Civ.App. 351, 80 S.W. 247 (no writ); Jenney v. Jackson, Tex.Civ.App., 46 S.W.2d 418 (no writ); Harper v. Johnson, Tex.Civ.App., 331 S.W. 2d 482 (reversed on other grounds, 162 Tex. 117, 345 S.W.2d 277); 1 Tex.Jur.2d Abatement and Revival, § 109, p. 116.

Where injuries caused by the negligence of another result in death, the recovery in an action for wrongful death prosecuted under the provisions of Articles 4671 et seq. may include reasonable funeral expenses paid by the statutory beneficiaries. Smith v. Farrington, 117 Tex. 459, 6 S.W.2d 736; Fort Worth & Denver City Ry. Co. v. Rogers, Tex.Civ.App., 62 S.W.2d 151 (wr. ref.). This is the majority American rule. See Annotation, 94 A.L.R. 438. At least one of our Courts of Civil Appeals has said that such expenses may be recovered either by the statutory beneficiaries who paid the same or by the estate of the decedent. See Bohn Bros. v. Turner, Tex.Civ.App., 182 S.W.2d 419 (wr. ref. w. m.) ; Armstrong v. Marshall, Tex.Civ.App., 146 S.W.2d 250 (wr. dis. judg. cor.). The courts of other jurisdictions are divided on the latter question. See 15 Am.Jur. Damages, § 100, p. 511. Although the recovery under Article 5525 is ordinarily limited to damages sustained by the decedent prior to his death, the reasonable cost of a suitable funeral constitutes a charge against the estate and is part of the expense which must be incurred as a result of the injuries. It is our opinion that the same may be recovered in an action brought by the heirs or legal representatives under the provisions of Article 5525 provided the defendant will not be subjected thereby to a double recovery. If the present action is not barred by the judgment in the former suit, petitioner is entitled to prosecute his claim for the funeral expenses and damage to the automobile.

Respondents say that maintenance of this suit constitutes the splitting of a cause of action and contravenes the policy which shields the defendant from a multiplicity of suits. They rely primarily on Cormier v. Highway Trucking Co., Tex.Civ.App., 312 S.W.2d 406 (no writ), and Garrett v. Matthews, Tex.Civ.App., 343 S.W.2d 289 (no writ). It was there held that a single wrongful or negligent act or omission causing injury to both the person and the- property of the same individual constitutes but one cause of action which cannot be split, and that a judgment for either item of damage may be pleaded in bar of an action to recover for the other item of damage. These decisions have no application here

Two separate and distinct causes of action may arise where injuries wrongfully inflicted result in death. One is the common law action for damages sustained by the decedent and his estate as a result of the injuries. This is the cause of action which survives to the heirs or legal representatives under the provisions of Art. 5525. The other right of action is conferred by Articles 4671 et seq. upon the surviving husband, wife, child and parents of the decedent. Since these statutory beneficiaries are not always entitled to assert both causes of action, it seems clear to us that the judgment in a wrongful death action does not necessarily bar a subsequent suit on behalf of the estate to recover for medical and funeral expenses, property damage, physical pain and suffering, and other damage sustained by the decedent prior to his death. See Mahoning Valley R. Co. v. Van Alstine, 77 Ohio St. 395, 83 N.E. 601, 14 L.R.A.,N.S., 893; St. Louis & S. F. R. Co. v. Goode, 42 Okl. 784, 142 P. 1185, L.R.A.1915E, 1141; Hamel v. Southern R. Co., 108 Miss. 172, 66 So. 809; Brown v. Chicago & Northwestern R. Co., 102 Wis. 137, 78 N.W. 771, 44 L.R.A. 579.

As pointed out by the Court of Civil Appeals, it is undisputed that the recovery in the prior action was limited to damages for the wrongful deaths of Guinn E. Landers and Feme Landers and for the personal injuries received by Roger Dale Landers. Petitioner has since been appointed administrator of the estate of Guinn E. Landers, and it must be assumed that there was a necessity for administration and that the heirs were not entitled to assert a claim for damage to the automobile in the former suit. See Lee v. Turner, 71 Tex. 264, 9 S.W. 149; 19 Tex.Jur.2d Decedents’ Estates, § 958, p. 11. Unless the plaintiffs in that proceeding had paid or become legally responsible for the funeral expenses, and it does not appear that they had, such expenses could not have been recovered in the earlier action. 'So far as can be determined from the present record, the claims which are made the basis of this suit can be prosecuted only by the administrator, and petitioner was appointed to the position after the judgment in the other case was entered. In these circumstances the former judgment clearly is not res judicata of the cause of action now asserted, and the trial court erred in granting respondents’ motion for summary judgment.

It is unnecessary for us to go as far here as the courts did in some of the cases cited above. Our problem would be somewhat different if the earlier action had been prosecuted by the administrator on behalf of the statutory beneficiaries, or if there had been no necessity for administration. See Coles’ Adm’x v. Illinois Cent. R. Co., 120 Ky. 686, 87 S.W. 1082. When the question arises we will determine whether the two causes of action may be asserted by the same person in different suits.

The judgment of the Court of Civil Appeals is modified so as to provide: (1) that the judgment of the trial court, in so far as it decreed that petitioner take nothing, is reversed and that part of the case is remanded to the district court; and (2) that the judgment of the trial court is otherwise affirmed. As so modified, the judgment of the Court of Civil Appeals is affirmed.

SMITH, J., concurs in the result.

GRIFFIN and CULVER, JJ., dissent.

GRIFFIN, Justice

(dissenting).

I agree with the opinion of the Court of Civil Appeals herein.

I do not approve of the splitting of the causes of action growing out of the same transaction. I believe the opinion of the Court will lead tó a multiplicity of suits, and cause confusion.


author:
WOODLEY, Presiding Judge.
      McDONALD, Judge DICE, Commissioner. McDONALD, Judge

text:
    Maximino GARZA, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 35744.
    Court of Criminal Appeals of Texas.
    May 22, 1963.
    Rehearing Denied June 29, 1963.
    Rivera & Ritter, San Antonio, for appellant.

      James E. Barlow, Dist. Atty., James E. Hope, A. J. Hohman, Jr., John G. Bena-vides, Asst. Dist. Attys., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is murder; the punishment, 7 years.

The sufficiency of the evidence is not challenged. It shows that on June 3, 1961, the appellant, then 16 years of age, while riding around in an automobile with Gilbert Cuellar and two other friends, came upon Antonio Rodriguez, the deceased, his brother Jesse Rodriguez and one Johnny or Tony Palacios.

After a brief exchange of words and after some rocks were thrown at the car, the appellant and Cuellar left the scene and took their friends home.

The appellant then borrowed a .22 caliber rifle and with Cuellar returned to the area where they had encountered the deceased and his companions. Cuellar was driving and as they caught up with the trio who were on foot, the appellant, intending to shoot Jesse Rodriguez, shot and killed Antonio Rodriguez, the deceased.

Complaint was filed charging the appellant with the murder. He was turned over to the Bexar County Juvenile Department on June 6, 1961, after the magistrate, Judge A. A. Semaan, found that he was under 17 years of age.

The Criminal District Attorney of Bex-ar County then signed a petition which was filed in the 150th District Court of Bexar County sitting as a juvenile court on June 14, 1961, representing that the appellant appeared to be a delinquent child, the only ground or reason alleged being that on or about June 3, 1961 he voluntarily and with malice aforethought killed Antonio Rodriguez by shooting him with a .22 caliber rifle.

On June 29, 1961, the district attorney filed his first amended motion for non-suit, the record showing that he had previously sought to withdraw his petition without success.

His amended motion for non-suit was overruled “for the sole and only reason that the granting of same would have the effect of circumventing the Juvenile Court Act of the State of Texas, Art. 2338-1, Vernon’s Annotated Civil Statutes, and would rob the court of jurisdiction to hear said cause.”

When the case came on for trial in the Juvenile Court, the district attorney filed motion to dismiss for want of jurisdiction, contending that because of the timely filing of his motion for non-suit the court had lost its jurisdiction.

His motion to dismiss being overruled, the district attorney filed motion for continuance in which certain portions of Art. 2338-1 were quoted and it was alleged that if the cause proceeded to trial “The State of Texas would be forever after precluded from prosecuting said juvenile as an adult for the same offense alleged in the petition herein.”

His motion for continuance being overruled, the district attorney proceeded to trial “under fear of contempt of court and attending penalties,” stating “We feel that by continuing to proceed in this juvenile hearing that we would thereafter be precluded to try this juvenile as an adult within 5 or 6 months from now.”

Trial before a jury empaneled on the court’s motion resulted in a verdict, returned July 21, 1961, finding the appellant to be a delinquent child.

Judgment was rendered upon the jury’s verdict on July 24, 1961, and it was ordered that the appellant herein be committed to the care, custody and control of The Texas Youth Council for an indeterminate period of time not to exceed the time he shall have become 21 years of age, and it was ordered that the appellant be conveyed to the Gates-ville State School for Boys, Gatesville, Texas.

The record shows that the judgment was complied with and the appellant herein was taken to Gatesville where he remained in custody and under the control of the State School for Boys until after he had reached the age of 17 and had been indicted for the murder of Antonio Rodriguez.

The district attorney perfected appeal to the Court of Civil Appeals from the judgment of the Juvenile Court.

The Court of Civil Appeals affirmed the judgment, holding that the Juvenile Court did not abuse its discretion in overruling the district attorney’s motion for a nonsuit. State of Texas v. Garza, Jr., 358 S.W.2d 749.

In the opinion of the Court of Civil Appeals it is stated, in part: “In this proceeding, the District Attorney had no personal interest or property right, and his purpose, apparently, was to prevent a hearing until Maximino Garza, Jr., had arrived at the age of seventeen years, when he •might be tried as an adult, and thus defeat the jurisdiction of the Juvenile Court. This would have the effect of defeating the entire purpose of the Juvenile Act. Art. 2338-1, supra.”

After the opinion of the Court of Civil Appeals was handed down, the state through the district attorney filed a motion to dismiss the appeal, alleging the facts shown elsewhere in the record herein, that pending the appeal Maximino Garza, Jr., had become an adult amenable to the penal laws and that on July 3, 1962, he “was indicted by the Bexar County Grand Jury for the offense of murder with malice, the identical offense alleged in appellant’s original pleading filed in the Juvenile Court.”

Appellant complains that the trial court erred- in overruling his plea of former jeopardy and his motion in arrest of judgment and here urges that the state should be prohibited from prosecuting the appellant for the same offense alleged in the petition filed in the Juvenile Court as the only basis for declaring him a delinquent child. He contends that to permit such criminal prosecution violates the 5th Amendment to the Constitution of the United States; Art. I, Section 14, of the Constitution of Texas, Vernon’s Ann.St, and Art. 8 of the Code of Criminal Procedure, each of which provides that no person shall be twice put in jeopardy of life or limb.

Appellant further contends that to allow the state to prosecute him under the indictment for murder, for the identical offense alleged in the petition upon which he was tried in the Juvenile Court and adjudged to be a delinquent child, is a deprivation of due process required by the 14th Amendment to the Constitution of the United States.

Proceedings in Juvenile Court are Civil rather than Criminal in nature. Appeals are to the Court of Civil Appeals and may be carried to the Supreme Court as other civil cases. Art. 2338-1, Sec. 21, V.A.C.S.

The Court of Civil Appeals having jurisdiction to decide the matter, the question of whether the state, having invoked the jurisdiction of the Juvenile Court, should have been allowed to dismiss the case was foreclosed on appeal.

The question of jeopardy and of denial of due process by reason of prosecution under indictments for felony offenses committed while the accused was under 17 years of age and after he had been adjudged to be a delinquent child has been before this Court in a number of rather recent appeals. Wood v. State, 171 Tex.Cr.R. 307, 349 S.W.2d 605; Perry v. State, 171 Tex.Cr.R. 282, 350 S.W.2d 21; Martinez v. State, 171 Tex.Cr.R. 443, 350 S.W.2d 929; Hultin v. State, 171 Tex.Cr.R. 425, 351 S.W.2d 248; and Lopez v. State, 171 Tex. Cr.R. 552, 352 S.W.2d 106.

Only two of these decisions need be discussed, the others being cases where there was no question but that the offense charged in the indictment was not the identical offense relied upon in the Juvenile Court to establish that the juvenile was a delinquent child.

In Martinez v. State, 350 S.W.2d 929, the majority found that the subsequent shooting and killing on the driveway of the service station was a separate assault from that made inside the station by presenting a pistol and demanding that the cash register be opened, and the majority holding was that the commitment as a juvenile delinquent based upon the assault with intent to rob was not available as a defense to the murder indictment returned after the defendant reached the age of 17 years, and that no denial of due process of law or violation of the principles of fundamental fairness was shown.

Judge Morrison held to the view that the murder arose out of the attempted robbery and the offenses were the same and, in his dissent, stated what would appear to be the correct rule to be applied where the identical felony charged in the indictment was the sole ground upon which the defendant was committed and restrained as a result of the state having secured a judgment in the juvenile court finding him a delinquent child.

In Hultin v. State, 351 S.W.2d 248, Judge McDonald wrote at length and expressed his views upon the question of jeopardy. All of the Court reached the conclusion that the state was not bound by the supplemental petition filed by appellant’s counsel alleging that he was a delinquent child because he had committed the murder for which he was indicted after he reached the age of 17. Our holding was that the prosecution for murder was not barred by reason of the defendant having been adjudged a delinquent child and committed and restrained under such judgment, the state’s petition having alleged as ground a separate felony offense and not the murder.

We need not here concern ourselves with a consideration of the question of former conviction in a court of competent jurisdiction or of former jeopardy based upon a proceeding, civil in nature, in the Juvenile Court prior to indictment. In addition to jeopardy, denial of due process in violation of the 14th Amendment to the Constitution of the United States is presented.

The record herein shows without dispute that as a result of the state having invoked the jurisdiction of the Juvenile Court upon the allegation that the appellant herein committed the murder for which he was indict-, ed, tried and convicted after he reached the age of 17, the appellant was committed and remained in custody and under control of the State School for Boys until he was indicted and taken into custody to answer said indictment.

It is interesting to note that the sentence was credited as for time spent in jail (Art. 768, Vernon’s Ann.C.C.P.), the provision being “said sentence to begin and operate from and after the 21st day of July, A.D. 1961, the date of defendant’s incarceration.”

As has been stated, the verdict finding the appellant herein to be a delinquent child was returned on July 21, 1961.

To affirm this conviction in the light of the record would be to hold that, for an offense committed before he reached the/ age of 17 years, the offender who has committed no other offense against the law-may, upon petition of the district attorney, be adjudged a delinquent child and held in custody as such, and without regard to how he may respond to the guidance and control afforded him under the Juvenile Act, be indicted, tried and convicted for the identical offense after he reaches the age of 17.

We sustain appellant’s contention that such a conviction violates the principles of fundamental fairness and constitutes a deprivation of due process under the 14th-Amendment.

The judgment is reversed and the prosecution ordered dismissed.

McDONALD, Judge

(dissenting).

I am very pleased to have the privilege and opportunity of dissenting in this case. This is a case of first impression wherein this Court is faced squarely with the issue of double jeopardy. I had thought that Hultin v. State, 351 S.W.2d 248, was a case identical to this case, and I worked long and diligently on the opinion I wrote in the Hultin case. This Court has too long engaged in “legal fiction” in disposing of cases of this kind. It did so in Hultin when my colleagues desired to incorporate in my opinion syllabi 8 and 9 on page 256 (351 S.W.2d) which in effect held that the appellant injected the murder allegation into the juvenile hearing when he could not do so. This effectively removed the identical-offense feature from Hultin and actually caused no new pronouncements especially to be written. I unwittingly agreed to the incorporation of this suggestion, which I now regret. I am now convinced that counsel for appellant in Hultin could have properly injected into the hearing the murder allegation. He could have even filed the petition himself under the terms of Article 2338-1, Section 7, V.A.C.S. The injection of this one paragraph in Hultin caused this Court to once more follow “legal fiction” and evade the issue which was before us and also caused a concurring opinion based upon this one single paragraph. In retrospect, I regret my acquies-cense to the opinion in this respect. Had we then faced the issue as we are now compelled to do, the result in Martinez v. State, 350 S.W.2d 929, in which some further “legal fiction” was engaged in, might have been different.

We have for many years held that a juvenile declared a delinquent, who was incarcerated on one charge under the Juvenile Delinquency Act and then later tried on a different charge as an adult .in the district court, was not entitled to plead jeopardy in bar. Actually, in most of these determinations, had it not been for the grave felony offense committed, for which he was later tried in the district court, many of these juveniles would never have been sent to the Youth Council at all.

Able counsel for appellant has set forth in his brief the distinction he makes between the case at bar and Hultin, supra, and Martinez, supra. I agree with his conclusions reached in making this distinction.

I made an exhaustive survey of all of the pertinent cases decided in this State by our various Courts of Civil Appeals, the Supreme Court, and this Court, so far as an interpretation of the Juvenile Delinquency Act is concerned, in my opinion in Hultin, supra. In the interest of brevity, I now adopt these citations by reference to Hultin.

In the case at bar we are dealing with an appellant who was 16 years, 6 months and 9 days old when he committed the offense of murder. In less than six months this appellant would have attained his 17th birthday and would have been amenable to the criminal laws of this state. He was declared a delinquent child for the offense of murder, then later indicted and tried for the offense of murder in the criminal district court. The question then is: Can a juvenile after attaining adulthood be prosecuted under an indictment for the identical offense relied upon in the juvenile court to establish that the juvenile was a delinquent child? We have never said until now that he could or could not. The majority opinion says that he cannot be so prosecuted, holding, in effect, that a juvenile is a special creature under our jurisprudence and the- State and Federal Constitutions. We have by statute clothed the juvenile with immunity from prosecution for criminal offenses until he attains the age of 17 years. The majority opinion may well be construed and interpreted as a further grant of immunity. Many juveniles frequently tell law enforcement officers: “You can’t put me in jail without the consent of the judge,” or: “I can’t be sent to the penitentiary because I am a child.” The appellant in this case is in a fortunate position. He had no prior background of delinquency. He had committed no prior offenses such as theft or associating with immoral persons, prior to the commission of this murder, so that the state might have alleged one of these violations as an allegation for delinquency. The state could only reply on the murder allegation, which it did; so this appellant now goes “Scot-free” and yet a boy his same age who has previously stolen some minor item might have to remain at the Gatesville State School for Boys or go back there if he does more stealing, but a minor thing like murder is not on a parallel basis!

Appellant has cited many cases in his brief. Among them he cites and relies upon Trimble v. Stone, 187 F.Supp. 483, a case involving the right of a juvenile to bail in a case pending in the juvenile court, decided by the United States District Court, Washington, D.C.

In re Poff, 135 F.Supp. 224, a case decided also by the United States District Court for the District of Columbia, is also cited. This case was based upon a writ of habeas corpus petition in that court wherein the petitioner said that the sentence imposed by the juvenile court was unconstitutional inasmuch as he was not advised of his right to counsel, a right guaranteed him under the Sixth Amendment. The court released the petitioner.

United States v. Dickerson, 168 F.Supp. 899, another case from the United States District Court for the District of Columbia, is also cited. In this case the defendant moved to dismiss an indictment on the ground of former jeopardy. The court held that jeopardy applied to juvenile proceedings and that the jurisdiction of the juvenile court attached and respondent could not thereafter be prosecuted on the same charge. BUT, this case was appealed by the Government, and the case was reversed by the United States Court of Appeals, District of Columbia Circuit, cited as United States v. Dickerson, 106 U.S.App. D.C. 221, 271 F.2d 487. The court said in its opinion:

“Without deciding whether jeopardy can ever attach to a disposition made by a juvenile court, either because the Constitution is directly applicable or because subsequent proceedings would be ‘fundamentally unfair,’ we hold that in the circumstances of this case no jeopardy attached as a result of proceedings in the Juvenile Court.”

In effect, then, appellant only cites us three cases decided by a federal district court (not an appellate court, nor a court of last resort, but the inferior tribunal in the Federal System), which in their scheme of things, reports the decisions of these district trial courts, and yet the only appellate decision cited by him overrules the one case that he relies upon for his jeopardy theory.

While it is true that the jeopardy provisions of our state and federal constitutions are self-executing, yet it still remains the task of our courts to construe these provisions in the light of the facts in each case and not assume that because some district court in Washington, D. C., decides that a juvenile is entitled to counsel or ⅛ bail that he may, by analogy, be entitled to effectively plead double jeopardy because two district courts say that “when he is entitled to some of the benefits he is as a general rule entitled to all of them.” I do not subscribe to this reasoning, or to this premise. One of the prime considerations of jeopardy is jurisdiction. Did the first forum have jurisdiction of the person and the offense? I don’t think the juvenile court had jurisdiction of the offense of murder. It had jurisdiction of the person, a juvenile delinquent. The majority are in effect saying that jeopardy lies regardless of whether or not it attached in a forum having jurisdiction of the offense, whether or not an indictment was preferred, whether or not the court trying the case had any jurisdiction at all in criminal matters. To me, it would be about as sensible for a defendant to come into the district court where he was to be tried for murder by automobile and set up a plea of jeopardy in bar of the prosecution for the reason that he had previously been sued for damages for the death of the person he killed, in a civil court, and had received a favorable verdict at the hands of the jury. This is about as far as the double jeopardy doctrine is being stretched by the majority opinion. They are saying that although the Juvenile Act is a civil statute, appeals are taken to the Court of Civil Appeals, the proceedings in delinquency are civil and not criminal, yet in this case it is different and jeopardy lies.

In Texas, the juvenile court has no statutory authority to waive jurisdiction to the district court in any case, regardless of the gravity of the offense, but in most of our states this may be done. Our juvenile court is unlike that of most jurisdictions in this respect. The juvenile court judge in the District of Columbia may waive jurisdiction and thus transfer a murder or rape case from his docket to that of the district court. By being vested with this authority, he does have the discretionary right to make an initial determination of a felony offense and decide to retain the case as a juvenile court case or transfer it to the district court for prosecution as a felony case. This distinction in the jurisdiction of juvenile courts might give the semblance of felony jurisdiction to the juvenile courts of the District of Columbia, but I attach little credence to it and merely make mention of it.

When a juvenile can shield himself from prosecution by virtue of his juvenility and the fact that the juvenile court has jurisdiction over him, how, then, can it be fair to allow him to later come forth and claim immunity and double jeopardy because of the action of a civil court into whose custody he was protectively given, was not tried as a felon or an adult, and yet make the claim that he was so tried, when his actual felony trial is had?

Had he insisted upon being tried originally in the district court instead of the juvenile court, he could not have been unless he lied about his age. These fundamental rights brought forth by appellants frequently inure to the individual, not to society. By the same token, the Juvenile Delinquency Act was written by our Legislature, not especially for society, but for the children of this State. Society and the public at large have a stake in both the Bill of Rights and all of the other safeguards of individual liberty contained in both our State and Federal Constitutions and also in our Juvenile Delinquency Act.

My concept of the preservation of individual liberty is not so keen as some. I think that this Court and every Court should zealously guard the rights of individuals, but these Courts should also guard the rights of society and the public at large. I am not yet ready to make an elastic interpretation in this case, as has been done by the majority, and apply the doctrine of double jeopardy to a case of this kind and turn loose on society a murderous felon who has been duly convicted in a fair and impartial trial by a learned trial judge and who then obtains his freedom by this Court on a spurious claim of jeopardy. I obviously dissent and would affirm this conviction were it in my power to do so.

ON STATE’S MOTION FOR REHEARING

DICE, Commissioner.

In its motion for rehearing, the state insists that we were in error in holding the appellant’s conviction in violation of the 'principles of fundamental fairness and a deprivation of due process under the Fourteenth Amendment, but contends in oral argument that the proceedings in juvenile court constituted former jeopardy.

It is argued that if the reversal on the ground of fundamental fairness and deprivation of due process is allowed to stand, the cases of Wood v. State, Tex.Cr.App., 349 S.W.2d 605; Martinez v. State, Tex.Cr.App., 350 S.W.2d 929; Perry v. State, Tex.Cr.App., 350 S.W.2d 21, and Hultin v. State, Tex.Cr.App., 351 S.W.2d 248, should be expressly overruled. With such contention we do not agree.

In the Wood, Perry, and Hultin cases, and, as found by the majority in the Martinez case, the conviction and resulting restraint of each accused was for a different act and offense from that for which he had been previously adjudged a delinquent child. Under such facts, the convictions and restraint thereunder did not violate the principles of fundamental fairness and constitute a deprivation of due process.

In the present case it is undisputed that the appellant’s conviction for murder is for the same act and offense for which he was, upon petition of the district attorney, adjudged a delinquent child and confined in the state school for boys. Under such facts, the conviction does violate the principles of fundamental fairness and constitutes a deprivation of due process and equal protection of the law.

Responding to the inquiry of the district attorney, we are aware of no reason why the appellant may not be returned to the custody of the Texas Youth Council.

Remaining convinced that a proper disposition was made of the case on original submission, the state’s motion for rehearing is overruled,

Opinion approved by the Court.

McDONALD, Judge

(dissenting).

While I set forth my views fully in my dissenting opinion, I did take the position that this case was présentéd to us on the sole question of former or double jeopardy.

As pointed out in the majority opinion on rehearing, the case was decided by the majority holding appellant’s conviction in violation of the principles of fundamental fairness and a deprivation of due process under the Fourteenth Amendment. In its motion, the State says that the Court was in error in so deciding, and the State urges the Court to decide the case on the basis of former jeopardy. And yet, the State, through its assistant District attorney, admitted in oral argument before this Court that the trial court’s action did constitute former jeopardy. This line of reasoning on the part of the State virtually amounts to a confession of error and leaves the writer with little support. Regardless, I still feel constrained to once more express my views.

To me, the basic difference between the majority opinion and the State’s contention on rehearing may be summarized as meaning that the majority feels that the appellant’s conviction was in violation of the principles of fundamental fairness and a deprivation of due process under the Fourteenth Amendment because the appellant was confined and restrained of his liberty after the adjudication of delinquency by being placed in the Gatesville State School and then being returned for trial in the Criminal District Court; whereas, if the appellant had not been sent to Gatesville but had been given over to the custody of his parents, then he would not have been confined and restrained of his liberty and would not have been deprived of due process under the Fourteenth Amendment and the principles of fundamental fairness. He would still be in the position of pleading former jeopardy because of the two adjudications. I wonder if the majority would hold as they did if appellant had just been given over to the custody of his parents instead of being incarcerated at Gatesville. I think the majority opinion is bottomed on former jeopardy without saying it.

So long as this Court continues to engage in “legal fiction,” then the cases of Wood v. State, Tex.Cr.App., 349 S.W.2d 605; Martinez v. State, Tex.Cr.App., 350 S.W.2d 929; Perry v. State, Tex.Cr.App., 350 S.W.2d 21; and Hultin v. State, Tex.Cr.App., 351 S.W.2d 248, should be allowed to stand and should not be overruled.

Since the majority opinion effectively does away with the statutory definition that Juvenile Courts and juvenile proceedings are civil actions, and by their opinion make criminal courts out of Juvenile Courts, then it necessarily follows that if this Court is going to apply the rules of criminal procedure to juvenile cases, Judge Morrison’s dissenting opinion in Martinez, supra, correctly enunciates the law. It is clear to me that Martinez would not have been tried in a District Court or a Criminal District Court for the offense of murder after he had been previously tried for the offense of assault with intent to rob.

!' The opinion of the majority could well lead to pleas of former jeopardy being effectively urged by persons previously adjudicated insane. These persons, when brought to trial for the offense of murder, after a restoration of their sanity, could contend that they had been confined and restrained of their liberty after an adjudication determining them insane.

I express the further view that jeopardy can no more attach in a preliminary hearing in a District Court to try the sole issue of sanity or insanity of a defendant under indictment for the offense of murder than it can attach in a case like the one before us. Simply because the Juvenile Court had jurisdiction of the person of the juvenile does not give it jurisdiction of the offense of murder, a felony, any more than a District Court trying the sanity issue at the preliminary hearing has jurisdiction at that particular time of the offense of murder. The adjudication in the Juvenile Court is for one purpose, and one purpose only, and that purpose is to determine the status of the juvenile; namely, is he a delinquent child. The question of his guilt or innocence of the offense of murder is not before the Juvenile Court any more than the offense of murder is before the District Court in the preliminary hearing on the sole issue of sanity. I cannot make a distinction in these two parallel situations.

For the reasons stated herein and those previously stated in my dissenting opinion on original submission, I respectfully dissent.