text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. S. Harrison HOLLOMAN et al., Appellees.
    Court of Appeals of Kentucky.
    March 12, 1965.

      John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, L. A. Faurest, Faurest & Collier, Elizabethtown, Dandridge F. Walton, Madisonville, for appellant.
    Carroll Morrow, Moore & Morrow, Madisonville, for appellees.
   HILL, Judge.

The Department of Highways of Ken tucky sought to acquire “surface rights” of appellees, owners and lessees of the oil and gas under about 81.81 acres, for use in constructing Madisonville by-pass on U.S. 41 and the Western Kentucky Parkway.

The petition provided that appellees could take any gas or oil under the land sought so long as they did not interfere with the construction and maintenance of the road, but they could not enter on the road to take oil or gas.

The county court judgment was for $3300.00, based upon the commissioners’ report of that amount. Both parties appeal from the county court judgment.

The jury verdict in circuit court allowed appellees $80,000.00, from which only the Commonwealth appeals, assigning the four following grounds for reversal:

1. The refusal of the court to permit the Commonwealth to dismiss its appeal from the county court was error.

2. The admission of evidence as to the development cost paid by the leasehold owners was error.

3. Admitting evidence that the residue of the oil field could not be flooded because of the danger of fissures under the road caused by water pressure injected in the field was error.

4. The verdict is excessive.

It is first contended by appellant that the trial court erred in overruling its motion to dismiss its appeal from the judgment of the county court and in support cites CR 6.04 and 7.02 and Commissioners of Sewage of Louisville v. Reisert, 243 Ky. 494, 49 S.W.2d 324 (1932).

CR 41.01 concerns dismissal of actions, generally. It provides:

“Subject to the provisions of Rule 23.02, or Rule 66, and of any statute, an action, or any claim therein, may be dismissed by the plaintiff without order of court * *

CR 72.04 relates to the rights of appellee if appellant fails to prosecute, and specifically treats of appeals from inferior courts. It provides:

“If a party appealing pursuant to Rule 72 move to dismiss or fail to prosecute his appeal, it shall be at the option of the appellee either to proceed to trial on the appeal, or to have judgment rendered for the amount of the original judgment and costs, if it was in his favor, or in bar of the original judgment, if it was against him.”

Procedure for dismissal is provided by CR 7.02 and 6.04. The former provides:

“An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing * * * ” (Our emphasis.)

In the case before us, the Commonwealth made motion to dismiss its appeal at the commencement of the hearing and trial in circuit court. Hence we think the manner of presenting the motion to dismiss was proper.

The right of appellant to dismiss its appeal presents a more difficult question because it may determine the burden of proof and the right to closing argument. Our statutes on eminent domain provide an appeal may be taken by either or both parties from the county court judgment. The appeal in circuit court is tried de novo.

Where both parties appeal, the burden of proof is upon the condemner. Commonwealth Dept. of Highways v. Snyder, cited below; L. & N. Ry. Co. v. Hargis, 230 Ky. 806, 20 S.W.2d 991; Johnson County ex rel. Vanhoose v. Boyd, 293 Ky. 337, 168 S.W.2d 1019; Commonwealth Department of Highways v. Baldwin, 312 Ky. 782, 229 S.W.2d 744.

Where the landowner only appeals, this Court said in Commonwealth Dept. of Highways v. Snyder, Ky., 309 S.W.2d 351 (1958):

“ ‘Where the landowner appeals’ under KRS 416.230 to 416.310, the burden of proof as concerns this issue is upon the landowner. It was pointed out that under those statutes, since the condemner had the right to take the land upon paying the compensation awarded by the commissioners regardless of the trial in the circuit court, the landowner would be the defeated party if no evidence was introduced on either side, and consequently he should have the burden of proof. See CR 43.01(2). A similar decision was reached in Citizens Fidelity Bank & Trust Company v. Jefferson County, Ky., 283 S.W.2d 1.”

From the foregoing it is readily apparent the question of burden of proof and right to closing argument may be important. Had the trial court sustained appellant’s motion to dismiss its appeal, the burden would have been on appellees.

Returning now to the question of the right of appellant to dismiss its appeal from the county court judgment, we think it is an absolute right. CR 41.01 contemplates it may be done “without order of court.” 72.04 gives the appellee an option in event the appellant “dismiss [es] or fail[s] to prosecute his appeal.” Appellee may “either * * * proceed to trial on the appeal, or to have judgment rendered for the amount of the original judgment.” This latter rule likewise implies appellant may dismiss its appeal. The plaintiff had a right in the first place to appeal or not appeal. Once it appeals, it has a right to dismiss that appeal. The appellee is in nowise prejudiced. It had the right to proceed to trial or have judgment for the amount of the county court judgment.

In short, we hold appellant had a right, under CR 41.01 and 72.04 to dismiss its appeal, and that the trial court erred in overruling appellant’s motion to dismiss its appeal.

Before getting into a discussion of the evidence on development and operating cost, objected to in the second ground for reversal, we think it appropriate to review some admitted facts pertaining to the history of oil and gas development under the land in question.

The right-of-way sought involves the oil and gas rights under 81.81 acres of a 500 acre tract in Hopkins County, known generally as the Holloman tract. In the early 1920’s drilling was commenced which resulted in “some” producing wells. During the following forty years, and until 1959, these wells produced between 90,000 and 135,000 barrels (depending upon whether we take appellant’s or appellees’ testimony), under the “primary” operation. It should be kept in mind, “primary” operation, as used in oil and gas jargon, means oil recovered by natural flow and by pumping operations. “Secondary” operation or “secondary” recovery contemplates recovery by force-pumping water into the oil-producing sand, thereby forcing the lighter oil out of wells other than those into which the water is forced.

By 1959, this oil field was down to a daily production of about one barrel under the “primary” operation. About this time appellee, Robert Million, became interested in promoting a water flood or “secondary” recovery project, and in December, 1959, or January, 1960, he and persons to whom he had sold shares in the project commenced forcing water into the field. This continued until June, 1962, when operation of the project was terminated or interrupted by road construction by appellant. At this time (taking) appellant contends the pilot project was producing about 3.6 barrels per day. Appellees say this production would have reached 10 barrels per day within a short time had not the appellant interfered.

We should bear in mind the taking date in this case was May 7, 1962. The judgment appealed from is dated May 27, 1963. Trial in circuit court was held May 20 and 21, 1963.

The parties are in agreement that in this field an operator can expect to recover as much or more oil by the secondary method as was produced by the primary operation. They are in sharp disagreement as to the amount produced from this property by the “primary” method, and as to the suitability or “permeability” of the oil-producing sand for flooding or “secondary” method. Appellant contends that the permeability is very unsatisfactory; that it varies from 2.3 millidarcys to 23 millidarcys and back to zero millidarcys and then up to 18 millidarcys and down and then up again; that this indicates water would not move through the sand at a uniform rate. In some places it would move much faster than others. That this result would be “channeling” and in places oil would not be forced in front of the water, but the water would by-pass the oil, thereby creating a strong possibility that the injection wells would pump water directly from the well into which it was injected to the well out of which oil was supposed to come. Appellant’s contention is supported by three geologists.

Appellees take the opposite view of the suitability of this field for the “secondary” method. Their contention is supported by the testimony of Smith, a geologist and part owner, and by appellees, Million and Youngblood, experienced operators.

Appellant assails the ruling of the trial court, admitting evidence that appellees spent $40,000 before the taking for development and operation of the “secondary” recovery system. This evidence was improper and prejudicial, under our ruling in Commonwealth, Department of Highways v. Cardinal Hill Nursery, Ky., 380 S.W.2d 249 (1964). Furthermore, the greater part of the evidence on this trial relates to the itemized cost of developing and operating a “secondary” recovery project. Total cost of these itemized estimates is around $175,000.00 This has also been condemned in the Cardinal Hill case, supra, from which we quote:

“However, upon direct examination it is not proper for appraisal witnesses to ascribe an itemized price tag to ‘damage’ factors.”

Appellant not only prepared its case on the theory it was proper to prove itemized cost of development and operation, but it first introduced the proposition in cross-examination of the appellees’ first witness, Smith, who was allowed to testify out of order by agreement. He was the very first witness to testify. By all precedent and by every elementary rule of procedure, we cannot now relieve the appellant of the web of entanglement in which it voluntarily placed itself.

Appellant’s third argument urges the trial court erred in admitting evidence, over its objection, that oil could not be recovered because of the danger of fissures under the road caused by water pressure injected in the flooding process.

KRS 3S3.180 places the duty of plugging oil wells on appellees. This record does not show any substantial interference with the overburden between the oil-producing sand and the surface. It was the duty of appellees to minimize their loss by complying with plugging laws referred to above. Appellees’ brief contains this statement pertaining to possible fissures:

“The only reason for the introduction of the evidence was to show that a prudent operator would not want to subject himself to liability because of forcing oil and water upon the right-of-way in great quantities, and would not want to lose water pressure by forcing the oil and water upon the right-of-way through old abandoned holes. * * * Neither would he want to expose himself to liability for damages resulting from water and oil flooding the right-of-way.”

We quote from the testimony of ap-pellee, Million:

“In order to recover the oil from the north end it would be necessary to generate pressures beneath the ground —that is what a water flood is, is the regeneration of pressure, natural pressure — and wherever we exerted a pressure, it would be exerted in the direction of the right-of-way, as well as the other direction, and after we got an efficient pressure we could have those old wells breaking out on the right-of-way.” (Our emphasis)

From this evidence the jury could very well have concluded that in the construction of the highway the state left the surface in such a condition that fissures or abandoned holes permanently prevented appellees from pursuing their recovery project. There is no evidence that the state did or failed to do any act calculated to result in leakage. As we have noted, it was the duty of appellees to lawfully plug their old wells. All of them. They cannot now take advantage of their failure to perform that duty. We think this evidence highly speculative and prejudicial to the appellant.

Finally, appellant contends the verdict is excessive. We do not pass on this question. The just compensation to which appellees are entitled is based upon the value of their property at the time of the taking. That value in turn depends upon the feasibility of the recovery project. In this connection, it is interesting to remember that all parties agree that at the time of taking and more than fifteen months after flooding was commenced, the income from the recovery operations was less than the monthly cost thereof. Furthermore, there is undisputed evidence that the witness, Nuttall, during the flooding operation, drank water from a well that was intended to produce oil, which is indicative this oil field does not have the “permeability” or uniformity of porosity necessary for the project to be feasible. If it was not feasible, it was a speculative venture, the expense of which should not be borne by the state.

The judgment is reversed with directions to grant appellees a new trial.


source: Caselaw Access Project

author: CULLEN, Commissioner.

license: Public Domain

text:
    Dudley W. PENNINGTON, Jr., et al., Appellants, v. CITIZENS FIDELITY BANK AND TRUST COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 12, 1965.
    As Modified on Denial of Rebearing May 21, 1965.
    S. J. Stallings and Robert L. Durning, Jr., Louisville, for appellants.
    Thomas W. Bullitt and M. Brooks Senn, Bullitt, Dawson & Tarrant, Louisville, for Citizens Fidelity Bank & Trust Co.
    Blakey Helm and P. M. Harris, Louisville, for Central Presbyterian Church of Louisville, Ky., Inc.
    Richard B. Crawford and Marshall B. Woodson, Jr., Louisville, for Calvary Episcopal Church.
    Blakey Helm, Helm, Bowman & Jay, Louisville, Rambo & Mair, Philadelphia, Pa., for Board of Pensions of United Presbyterian Church in U. S. A.
    T. Kennedy Helm, Jr., Stites, Peabody & Helm, Louisville, for Woodcock Hall.
    Armand L. Koethen, Louisville, for Young Women’s Christian Assn.
   CULLEN, Commissioner.

In 1958, at age 74, Dudley W. Penning ton, was adopted by his childless wife, age 71. She was the life tenant of a substantial estate under the will of her mother, probated in 1921. After his wife’s death, in 1962, Pennington asserted a claim to the estate under a provision of the mother’s will which devised the remainder of the estate to “the child, or children of my daughter, Annie, if any.” Certain charities which were designated to take the remainder if there were no children resisted the claim. In an appropriate action the circuit court adjudged that Pennington was not a “child” within the meaning of the will and therefore could not take under the will. Pennington has appealed from that judgment.

The decision of the trial court conforms with the views expressed by this Court in Wilson v. Johnson, Ky., 389 S.W.2d 634 (decided February 5, 1965). Accordingly, we affirm the judgment to the extent that it bars any claim of Pennington to the estate.

The judgment went further and held that by virtue of the adoption, and the execution contemporaneously of an agreement between the Penningtons as to the disposition of the estate on Mr. Pennington’s death, there was a violation of a provision of the will prohibiting any anticipation, pledge or attempted disposition by Mrs. Pennington of “her estate herein,” and therefore the life estate was forfeited and the trust was terminated when the adoption took place. None of the parties asked for such an adjudication and none of them contend on this appeal that the adjudication should be upheld. For that reason, and because there clearly was no attempt by Mrs. Pennington to anticipate, pledge or dispose of “her estate” (which was only a life estate), the adjudication in question was improper.

It is suggested on behalf of Mr. Pennington that if he is not entitled to take as a child, then his son (by a previous marriage) is entitled under KRS 394.410(2) to take in the capacity of a grandchild. This proposition is completely without merit because Pennington’s son could not possibly be a grandchild of the testatrix for purposes of the will if Pennington is not a child within the meaning of the will.

To the extent that the judgment decrees that the trust terminated upon the consummation of the adoption it is reversed; in all other respects it is affirmed.


author: NORVELL, Justice.

text:
    Fay D. HOUSEMAN and Husband, Petitioners, v. Hilary D. MAHIN and Lettie Mahin, Respondents.
    No. A-10581.
    Supreme Court of Texas.
    May 19, 1965.
    Leonard Howell, Midland, for petitioners.
    Stubbeman, McRae, Sealy & Laughlin, Charles Tighe and John Harrell Feldt, Midland, Legg, Saxe & Baskin, Midland, for respondents.
   NORVELL, Justice.

This is a plea of privilege case over which we have jurisdiction because a dissenting opinion was filed in the Court of Civil Appeals. Articles 1728 and 1821, Vernon’s Ann.Tex.Stats. The trial court overruled the pleas of privilege of Fay D. Houseman to be sued in Dallas County where she resides. The Court of Civil Appeals affirmed, 385 S.W.2d 437. Being in general agreement with the dissenting justice, we reverse the judgments of the courts below and sustain the pleas of privilege of Fay D. Houseman.

The question involved in this litigation relates to the custodial rights in and to the three minor children of the respondent, Hilary D. Mahin and his former wife, the petitioner, Fay D. Houseman. As disclosed by the opinion of the Court of Civil Appeals, the litigants and their attorneys managed to whip up a first-class procedural snarl. Two causes are involved and the pleas of privilege in both of them were disposed of by the Court of Civil Appeals in one order after the appeals had been consolidated in that Court. Cause No. 18,962 on the docket of the 142nd District Court terminated' in a decree of divorce between Hilary D. Mahin and Fay D. Mahin (now Houseman). The second cause was instituted by Hilary D. Mahin to secure a change in the decree entered in Cause No. 18,962 insofar as it related to the custody of the three minor children. This case was docketed under No. 19,987. By separate orders, the trial court overruled the pleas of privilege filed in both Causes Nos. 18,962 and 19,987.

We shall state such facts and circumstances as are deemed essential to an understanding of our order of reversal.

On June 24,1963 Hilary D. Mahin and his wife, Fay D. Mahin, (now Houseman) were divorced by decree entered in Cause No. 18,962, above mentioned. This decree became final thirty days after date of rendition, i. e., on July 24, 1963, under the provisions of Rule 329-b, § 5, Texas Rules of Civil Procedure. An agreement of the parties as to the care, custody and control of the minor children was approved by the Court and in effect made part of the decree. It was provided that Mrs. Lettie Mahin (a respondent here), the mother of Hilary D. Mahin, should have “temporary care, custody and control of the minor children of the parties until January 25, 1964, and on and after said date, Plaintiff, Mrs. (Fay) Mahin, shall have the sole care, custody and control of the minor children of the parties.”

On January 15, 1964 Hilary D. Mahin filed a so-called motion in the divorce suit (Cause No. 18,962) above mentioned, which was in effect an institution of a new suit insofar as Mahin sought a change in the child custody order therefore entered based upon an alleged change of conditions. Lakey v. McCarroll, 134 Tex. 191, 134 S.W.2d 1016 (1940).

In reply to this motion or petition, the petitioner, Fay D. Houseman, formerly Fay D. Mahin, filed a timely plea asserting her privilege to be sued in Dallas County where she then resided. This plea was filed on January 23, 1964 and on the same day notice thereof was served upon the attorney for Hilary D. Mahin. Also, on said date, the trial court entered a so-called “stay order” which provided that the prior order of the court rendered on June 24, 1963, directing that the children be turned over to the petitioner on January 25,1964, be stayed and that the custody of said children remain in Mrs. Lettie Mahin until further order of the court.

Also, on January 15, 1964, Hilary D. Ma-hin filed suit in Cause No. 19,987 in which he named both Fay D. Mahin (Houseman) and Lettie Mahin (his mother) as defendants. He prayed that he be given full care, custody and control of the minor children involved. On February 19, 1964, Hilary D. Mahin filed an amended petition and secured a temporary order restraining Fay D. Houseman from attempting to obtain care, custody and control of the minor children pending a hearing upon an application for temporary injunction. This order refers to the “stay order” entered in Cause No. 18,-962 and is in terms similar thereto. No citation had been issued upon the filing of the original petition. After the amended pleading was filed, citation was issued and service obtained upon Fay D. Houseman. She answered with a timely plea of privilege to be sued in Dallas County.

In Cause No. 18,962, no affidavit contradicting the plea of privilege was filed within the time prescribed by Rule 86. The affidavit which was belatedly filed was insufficient as a matter of law in that it broadly asserts a claim of continuing jurisdiction on the part of the 142nd District Court contrary to this Court’s holding in Lakey v. McCarroll, 134 Tex. 191, 134 S.W.2d 1016 (1940). The respondent Hilary D. Mahin seemingly places little or no reliance upon the trial court’s order entered in Cause No. 18,962. However, he did file a timely controverting affidavit in Cause No. 19,987. As above pointed out, Lettie Mahin was named as a party in this suit and Hilary D. Mahin takes the position that his mother is a “resident defendant,” i. e., that she had resided in Midland County, Texas from and after the Christmas holidays of 1963 when she moved from her former home in Osage County, Oklahoma.

Exceptions Nos. 2, 3, 4 and 29a of Article 1995, Vernon’s Ann.Tex.Stats., are specifically mentioned in the controverting affidavit. It was not shown that Fay D. Houseman was a transient person, nor that her residence was unknown. Exceptions Nos. 2 and 3 have no application here. Neither has Exception No. 29a which “applies only when none of the defendants reside in the county of suit.” McDonald’s Texas Civil Practice, § 4.10.

The claim to venue under Exception 4 of Article 1995 likewise fails. It seems to be the theory of Hilary D. Mahin that as his mother, Lettie Mahin, a resident of Midland, Texas, is presently asserting some custodial rights over the children, he can join Fay D. Houseman with his mother in a suit in Midland County and thus empower the Midland County District Court to readjudicate and redetermine the custodial provisions of the divorce decree entered on June 23, 1963 in Cause No. 18,962, despite Mrs. Houseman’s insistance that a Dallas County District Court is the proper forum to determine such matters in view of her assertion of her venue privilege. This position is not tenable. The only custodial right which Lettie Mahin had with reference to the children from and after January 25, 1964 depends upon the “stay order” issued in Cause No. 18,962 and the temporary restraining order issued in Cause No. 19,-987. Whether these orders may be justified as temporary expedients, we need not determine. It is certain that such orders secured upon motion of Hilary D. Mahin attempt to modify the original decree entered in Cause No. 18,962. It is well settled that the venue of a suit to modify a decree relating to the custody of children lies in the county of the residence of the legal custodian. Under the terms of the original decree, the legal custodian of the children from and after January 25, 1964 was Fay D. Houseman and her right to be sued in the county of her residence in any suit seeking a redetermination of her custodial rights to her children seems clear enough. Lakey v. McCarroll, 134 Tex. 191, 134 S.W.2d 1016 (1940); Leonard v. Leonard, 358 S.W.2d 721 (Tex.Civ.App.1962, no wr. hist.); Taylor v. Taylor, 348 S.W.2d 226 (Tex.Civ.App.1961, no wr. hist.); Ellington v. Floyd, 255 S.W.2d 948 (Tex.Civ.App.1953, no wr. hist.). Such right quite obviously cannot be defeated by the entry of ex parte stay orders. Venue cannot be supplied by bootstrap operations.

In attempting to fit this case into Exception 4 of Article 1995, numerous anomalies are encountered. It is essential that a cause of action against the resident defendant (Lettie Mahin) be both pleaded and proved. Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 (1936). If there be a possible complaint that Hilary D. Mahin has against his mother, it is that she has present custody of the children and he does not. Yet, such tenuous rights as Lettie Mahin may have in and to the children were secured at the instigation of Hilary D. Mahin, who applied for the stay and restraining orders heretofore mentioned. His claim to modification of the decree of July 24, 1963 must necessarily be based upon a change of conditions which has taken place since that date. All allegations relating to such change of conditions have reference to the circumstances of Fay D. Houseman; none relate to Lettie Mahin. No cause of action against the resident defendant has been pleaded or proved. In essence this is a lawsuit between Hilary D. Mahin and Fay D. Houseman and its proper venue is Dallas County.

The judgments of the courts below are reversed. It is our duty to render such judgment as the trial court should have rendered. Accordingly, we sustain the pleas of privilege filed by Fay D. Houseman in Causes Nos. 18,962 and 19,987. As above pointed out, the filing of the motion by Hilary D. Mahin in Cause No. 18,-962 on January 15, 1964 had the legal effect of instituting a new suit insofar as it related to the custody of the minor children of the parties. The cause of action in said new suit relating to the custody of the minor children of Hilary D. Ma-hin and Fay D. Houseman is severed from the other issues in Cause No. 18,962 (relating to the amount of support payments) and is consolidated with Cause No. 19,987 involving the same subject matter. Said consolidated Cause No. 19,987 is transferred to the District Court of Dallas County, 101st Judicial District. The District Clerk of Midland County is directed to make up a transcript of all orders entered in said causes and proceed in accordance with the provisions of Rule 89, Texas Rules of Civil Procedure.

Reversed and rendered.

      . As to the failure to timely controvert a plea of privilege see, Bogle v. Landa, 127 Tex. 317, 94 S.W.2d 154 (1936); John E. Quarles Co. v. Lee, 58 S.W.2d 77 (Tex.Comm’n App.1933, holding approved by the Supreme Court); Bell v. Jasper Lumber Corporation, 287 S.W.2d 746 (Tex.Civ.App.1956, wr. dis.); Smith v. Isaac, 326 S.W.2d 922 (Tex.Civ.App.1959, no wr. hist.).

      . The petitioner attacks the bona lides of Lettie Mahin’s claim to a Texas residence, but we need not determine that issue to dispose of the case.


author: WALKER, Justice. GREENHILL, Justice POPE, Justice,

text:
    Fancher ARCHER, Petitioner, v. Nova Dean GRIFFITH, Respondent.
    No. A-9644.
    Supreme Court of Texas.
    Nov. 18, 1964.
    Rehearing Denied May 19, 1965.

      John E. Allen, L. Hamilton Lowe, Austin, for petitioner.
    Kuykendall & Kuykendall, Austin, for respondent.
   WALKER, Justice.

This is an action to set aside a deed executed by Mrs. Nova Dean Griffith, respondent, to her attorney, Fancher Archer, Esq., petitioner, pursuant to the provisions of a contingent fee contract between the parties. The case was tried before the court without a jury, and judgment was rendered cancelling the deed and awarding petitioner $400.00 in addition to the amounts previously received by him for his services to respondent. No findings of fact or conclusions of law were filed or requested. The Court of Civil Appeals affirmed. Archer v. Blakemore, 367 S.W.2d 402.

Respondent originally employed the law firm of Archer & Archer in January, 1959, to institute divorce proceedings in her behalf. She made a deposit for court costs and gave them $100.00 at the time, but according to her testimony they said their fee would be collected from the husband. According to their testimony she orally agreed to pay a contingent fee of one-fourth of any property recovered for her in the suit. After a preliminary investigation of the property rights involved, the divorce action was instituted by filing an original petition which was verified by respondent and signed by petitioner as her attorney. She there prayed for a temporary restraining order, temporary alimony, divorce, custody of the minor child born to the marriage, an allowance for the support of the child, and attorney’s fees in the amount of $1,000.00. Prior to the issuance of a restraining order, however, respondent notified her attorneys that she and her husband had effected a reconciliation and were living together again. No further action was taken in the suit at that time, and no additional payment was requested from her.

About eighteen months later respondent again consulted the Archers and insisted on going forward with the suit. She then signed a written contract employing petitioner to represent her “in preserving, keeping and managing my separate property and my community property * * * and * * * to file suit and take such other action and steps by suit or otherwise to preserve and protect my property.” It was further stipulated that in consideration of services rendered and to be rendered, petitioner would be entitled to one-fourth of “whatever property either personal, real or money which shall be determined to be mine either through settlement or suit.”

After making further investigation, petitioner prepared and filed an amended original petition in the divorce action. A temporary restraining order was issued and served on the husband, who thereupon employed an attorney. The latter filed special exceptions to the petition, had the case put on the jury docket, and indicated that the suit would be contested. Petitioner then began preparing for a contest. Among other things he drafted a second amended original petition with a prayer for a receivership and the recovery of $5,000.00 attorney’s fees and sent a copy to the husband’s lawyer.

This brought about serious overtures for a settlement of the case. The negotiations, which involved a number of conferences and extended over a period of several weeks, resulted in the execution of a settlement agreement whereby the property in controversy was divided as follows: (1) the home, the business known as Griffith Wall Paper and Paint Company, a 1951 Packard automobile, and 10.8 shares of stock in American Guaranty Accident Life and Health Insurance were set apart to the husband; (2) the household furnishings and 5.4 shares of American Guaranty Accident Life and Health Insurance were set apart to the wife; (3) all savings and bank accounts and certain other securities were divided equally; and (4) it was agreed that the premises on 13th Street in Austin, which had been acquired during the marriage, would be owned by the parties in equal shares subject to an existing encumbrance in the amount of approximately $22,500.00, and an additional lien was impressed on respondent’s undivided one-half interest to secure payment of $7,750.00 to the husband in satisfaction of his claim for separate funds used to purchase the property. It was further stipulated that an attorney’s fee of $500.00 would be paid by the husband to Archer & Archer, and that all other attorney’s fees would be paid by the respective parties to his or her attorney.

The hearing in the divorce action was held the following day, and judgment was entered awarding respondent a divorce and custody of the child. According to the recitals of the judgment, the settlement agreement was explained to the court, which found that there was no necessity for adjudicating the property rights of the parties. Immediately after the divorce was granted and before the parties left the court house, respondent executed and acknowledged the following three deeds: (1) a conveyance of the home to her former husband; (2) a deed establishing their interests in the 13th Street property in accordance with the settlement agreement; and (3) the instrument now in controversy, which conveyed to petitioner one-fourth of respondent’s undivided one-half interest in the 13th Street property. The husband later paid petitioner the $500.00 fee as provided in the settlement agreement.

Petitioner insists that the trial court erred in setting aside the deed because there is no evidence of any fraud in connection with its execution and delivery. It was stipulated by the parties that the relationship of attorney and client existed between petitioner and respondent when the deed was executed and delivered. That fact has an important bearing on the controversy. The relation between an attorney and his client is highly fiduciary in nature, and their dealings with each other are subject to the same scrutiny, intend-ments and imputations as a transaction between an ordinary trustee and his cestui que trust. “The burden of establishing its perfect fairness, adequacy, and equity, is thrown upon the attorney, upon the general rule, that he who bargains in a matter of advantage with a person, placing a confidence in him, is bound to show that a reasonable use has been made of that confidence; a rule applying equally to all persons standing in confidential relations with each other.” Story, Equity Jurisprudence, 7th ed. 1857, § 311. This principle has always been recognized by the Texas courts. Cooper v. Lee, 75 Tex. 114, 12 S.W. 483; Holland v. Brown, Tex.Civ.App., 66 S.W.2d 1095 (writ ref.) Bell v. Ramirez, Tex.Civ.App., 299 S.W. 655 (writ ref.).

The general rule mentioned above applies to a contract or other transaction relating to compensation provided the attorney-client relationship was in existence at the time. “Although an attorney is not incapacitated from contracting with his client for compensation during the existence of the relation of attorney and client, and a fair and reasonable settlement of the compensation to be paid is valid and enforceable, if executed freely, voluntarily, and with full understanding by the client, the courts, because of the confidential relationship, scrutinize with jealousy all contracts between them for compensation which are made while the relation exists. There is a presumption of unfairness or invalidity attaching to the contract, and the burden of showing its fairness and reasonableness is on the attorney.” Pomeroy, Equity Jurisprudence, 5th ed. 1941, § 960d. See also Tippett v. Brooks, 28 Tex.Civ.App. 107, 67 S.W. 512 (writ ref., 95 Tex. 335, 67 S.W. 495); Laybourne v. Bray & Shifflett, Tex.Civ.App., 190 S.W. 1159 (no writ), on subsequent appeal, 214 S.W. 630 (writ ref.); Annotation, 19 A.L.R. 847.

We assume without deciding that the parties to this case were dealing at arm’s length when the written contingent fee contract was signed by respondent. If such agreement had been binding upon both parties, it might afford a basis for upholding the deed without regard to the fairness of the transaction. In this instance, however, petitioner was married when the contract was made, and the agreement was voidable at her election. It does not appear that she owned any separate property, and the employment of an attorney to institute and prosecute proceedings for divorce and partition of community property is not an incident of the wife’s power to manage, control and dispose of her separate property. Cf. Cauble v. Beaver-Electra Refining Co., 115 Tex. 1, 274 S.W. 120; Parker v. Boyles, Tex.Civ.App., 197 S.W.2d 842 (writ ref. n. r. e.).

Petitioner argues that the contract in the present case is now binding on respondent because she adopted the same by executing the deed after her disabilities of coverture were removed. He also says that since the agreement has been fully performed on both sides, respondent is not entitled to recover the property she voluntarily conveyed in pursuance of its provisions even though the contract was voidable and unenforceable as an original proposition. See Leake v. Saunders, 126 Tex. 69, 84 S.W.2d 993; Pitts v. Elser, 87 Tex. 347, 28 S.W. 518; Oil Exchange & Board of Trade v. Hogle, Tex.Civ.App., 272 S.W. 1114 (no writ). These cases have no application where, as here, the instrument said to constitute adoption or performance 01 the preexisting contract was made to an attorney by his client. In view of the circumstances under which the agreement and deed in this case were executed, the contingent fee contract does not preclude an inquiry into the fairness of the entire transaction and it cannot be said as a matter of law that the deed amounts to an adoption or voluntary performance of the contract.

Respondent alleged that petitioner was paid a total of $600.00 in cash; that such amount was an adequate and reasonable fee for the services rendered; that the net market value of the interest in the 13th Street property which she conveyed to petitioner was $7,000.00; and that the fee which petitioner thus received was so exorbitant and unreasonable as to require that the deed be cancelled and set aside. After she established that the conveyance was executed and delivered during the existence of the attorney-client relationship, the burden was on petitioner to show that his acquisition of the interest conveyed by the deed was fair, honest and equitable. The cases of Lesikar v. Lesikar, Tex.Civ.App., 251 S.W.2d 555 (writ ref. n. r. e.), Coen v. Stout, Tex.Civ.App., 245 S.W.2d 971 (no writ), and Kull v. Brown, Tex.Civ.App., 165 S.W.2d 1011 (no writ) are not in point, because they did not involve a claim that the transaction was unfair to the Client.

Aside from one deficiency in proof which will be noticed later, the validity of the deed in the present case turns upon whether the preexisting agreement was, in fact, so unfair and unreasonable that a court of equity should intervene and set the conveyance aside. Since there are no findings of fact or conclusions of law, it must be presumed that the trial court found that it was. The question for us to decide then is whether the record shows conclusively that such implied finding is erroneous. We take it for granted that petitioner acted in good faith, but that does not entitle him to prevail as a matter of law. The issue here is constructive or legal fraud and not actual fraud. Actual fraud usually involves dishonesty of purpose or intern to deceive, whereas constructive fraud is the breach of some legal or equitable duty which, irrespective of moral guilt, the law declares fraudulent because of its tendency tc deceive others, to violate confidence, or to injure public interests. 37 C.J.S. Fraud § 2; 23 Am.Jur. Fraud and Deceit § 4.

Assuming as we do that a contingent fee arrangement is not necessarily improper in a divorce action, the contract in this case must be viewed prospectively in the light of the circumstances existing at the time it was made. When it is so considered, there is evidence tending to show that the agreement was fair and reasonable. The record shows in some detail the services performed by petitioner and his partner. In response to hypothetical questions, three members of the Travis County Bar testified that in their opinion a twenty-five per cent contingent fee was not unreasonable. According to petitioner’s testimony, however, he waived his right to an interest in the bank accounts, household furnishings and securities recovered for respondent, and balanced the same off against the $500.00 fee paid by the husband. Respondent’s share of the bank accounts was about $300.00, but there is no competent evidence showing the value of the securities and furniture set apart to her under the terms of the settlement agreement. Since we have no way of knowing the value of such property, it is impossible to determine whether the offset was fair and proper under the circumstances.

Entirely aside from that problem, it is our opinion that the record will support the conclusion that the contingent fee contract was so exorbitant and unreasonable as to require that the conveyance be set aside. There is no direct evidence as to the value of the 13th Street property when the contract was executed on September 20, 1960. It was purchased in 1951 for a total consideration of $60,500.00, and there is testimony indicating that property values in the area have increased since 1951. About five months after the divorce, petitioner wrote respondent that he had told some people, apparently real estate agents, “that if they had a proposition to make with a definite amount of $110,000.00 with earnest money to pay down, we would then listen to their proposition and make a decision as to whether or not we would sell.” The record also contains a notation in petitioner’s handwriting that the estimated value of the 13th Street property on December 1, 1960, was $90,000.00. Petitioner testified that the notation was made in connection with the settlement negotiations and had no meaning as far as value was concerned, but the trial court was not required to accept this explanation. In the light of the foregoing evidence and in view of the absence of any other proof of value, the court was entitled to conclude that the property was worth at least $90,000.00 at the time the contract was made. On the basis of such valuation and after deducting the amounts unpaid on the outstanding encumbrance anu the lien imposed on respondent’s interest in favor of her former husband, the computed value of the one-eighth interest conveyed to petitioner is more than $6,400.00. To this must be added the $600.00 he was paid by respondent and her husband, which means that his total compensation was in excess of $7,000.00.

One member of the Travis County Bar, who represented the husband in the divorce action and who was thus familiar with the issues and property involved in the suit, testified that from $500.00 to $750.00 would have been a reasonable fee for the services rendered by petitioner. This evidence is not necessarily controlling, because the witness was speaking of a fee that would be paid without regard to the outcome of the litigation. If accepted by the trial court, however, it shows that the contingent fee agreement yielded petitioner approximately ten times what he could reasonably have expected to receive under a fixed fee agreement.

The schedule of fees recommended by the State Bar of Texas, which was introduced in evidence, does not recognize contingent fee arrangements in divorce actions. There is a section dealing with contingent fees, but it is prefaced by a paragraph which states, in effect, that such section does not apply to divorce suits and certain other types of cases that are dealt with specifically elsewhere in the schedule. In the section applicable to divorce actions, a minimum fee of $250.00 is recommended in an uncontested case with $100.00 to be added if the custody of children is involved and an agreement is reached. It further states that: “For the legal services rendered in connection with the property settlement, the additional charge, based on the fair net value of the property allocated or set aside to the attorney’s client, should be 10 per cent on the first $5,000.00 and five per cent on the excess; where unusual or complex problems are involved or where the parties cannot agree and the matter must be decided by litigation, a higher charge should be made.” The trial judge, who was familiar with the problems involved in the divorce action, was entitled to conclude that the contract now under attack provided for a fee three and one-half times greater than the minimum fee recommended in such schedule.

The certainty or contingency of the compensation is one of the factors to be considered by an attorney in fixing his fee. See Canon 11, Article XIII, Section 3, of the State Bar Rules, Vernon’s Ann.Civ.St. We are not concerned here, however with the ordinary contingent fee arrangement where there is considerable doubt that the attorney will receive anything for his services. The contract obligated respondent to pay petitioner one-fourth of all property determined to be hers, whether by settlement or suit. She and her husband owned a large amount of community property, and the record does not establish that there was any serious question as to her right to a divorce. Even if they were permanently reconciled, petitioner would have been entitled to recover the reasonable value of his services despite the agreement for a contingent fee. Kelly v. Gross, Tex.Civ.App., 4 S.W.2d 296 (writ ref.). Subject to this one contingency, a substantial recovery was reasonably certain even after making allowance for the husband’s separate funds used to purchase the real estate. It was very likely, therefore, that petitioner would receive either the reasonable value of his services or one-fourth of the property set apart to his client when the divorce was granted. In this respect his situation was quite different from that of an attorney employed to prosecute a damage suit or establish a constructive trust.

It is a matter of common knowledge, moreover, that divorce cases are frequently settled, and that the lawyers usually do less work in such instances than where the issues are contested through the trial and appellate courts. The attorney who represented the husband in the divorce action testified that the contract was unfair to respondent in that no provision was made for a reduction of the fee in the event of a settlement. He regarded one-fourth of the recovery as a reasonable contingent fee if petitioner had been required to try a contested case, but it was his opinion that “twenty-five per cent straight across the board is too high.” He thought the contract was “wrong” and that “they took advantage of her, just to be plain about it.”

After reading the entire statement of facts and carefully considering all of the evidence, we are unable to say that either party to this suit is entitled to prevail as a matter of law. Whether the contingent fee contract and the conveyance executed pursuant thereto were so unfair and inequitable as to warrant the intervention of a court of equity is a question of fact, and that issue was resolved by the trial judge in respondent’s favor.

Petitioner also contends that respondent ratified the contract and deed by allowing him to look after the 13th Street property and consulting him regarding its sale after the divorce was granted. These dealings apparently are referable to the contract of employment and occurred while the attorney-client relationship existed between the parties. Although there is a conflict in the evidence, respondent’s testimony will support the conclusion that she did not realize until May, 1961, that she had signed a contract entitling petitioner to one-fourth of the recovery or a deed conveying him an interest in the real estate. She “just signed what they thought I should sign,” and originally it was her understanding that petitioner’s fee would be collected from the husband. After the property settlement was worked out and before the divorce was granted, she was advised that there would be an additional fee. She told her attorneys that if she owed them anything, it would have to be paid at the time the property was sold “and they said that was all right.” There were no further dealings between them after she discovered that petitioner had a deed to an interest in the real estate. Aside from the fact that there is no pleading of ratification, it is our opinion that such defense is not conclusively established by the evidence and that the judgment setting aside the deed must be affirmed.

By cross-point in the Court of Civil Appeals, respondent contended that the trial court erred in awarding petitioner $400.00 in addition to the $600.00 he had already received. She asserted that such recovery is without support in either the pleadings or the evidence. The intermediate court refused to consider the question because respondent did not perfect an appeal from the judgment in so far as it is adverse to her.

Petitioner attempted to limit the scope of his appeal to the portion of the judgment which set aside the conveyance. See Rule 353, Texas Rules of Civil Procedure. Such attempt was ineffectual in this instance, however, because the judgment is not severable in that manner. The $400.00 award is predicated on respondent’s offer, in her petition, to pay petitioner any additional fee to which he might he entitled in the event the conveyance should be set aside. It is dependent upon her right to the relief she sought, and could not he allowed to stand if it had been determined that the trial court erred in cancelling the deed. When petitioner perfected his appeal, therefore, the entire judgment was brought to the appellate court for review and respondent was entitled to urge her cross-point attacking the portion of such judgment which is adverse to her. See Dallas Electric Supply Co. v. Branum Co., 143 Tex. 366, 185 S.W.2d 427, and authorities there cited.

Since respondent offered to do equity, it was unnecessary for petitioner to seek a recovery on the quantum meruit in the event the deed was set aside. There is ample testimony to support the additional $400.00 award in his favor, and the cross-point is accordingly overruled.

The judgment of the Court of Civil Appeals is affirmed.

GRIFFIN, SMITH, GREENHILL and STEAKLEY, JJ., dissenting.

GREENHILL, Justice

(dissenting).

This is not a case in which the trial court was called upon to fix a reasonable attorney’s fee. Nor is it a suit by an attorney for his fees in which the amount thereof is an ordinary issue of fact. This is a suit to set aside a deed, one which had been executed more than a year before suit was brought, and the ground alleged for setting the deed aside is fraud. In my opinion, there is absolutely no evidence of fraud, actual or constructive.

The deed in question was executed by a feme sole. Its opening line is, “I, Nova Dean Griffith, a feme sole * * The deed was signed after her divorce had been granted. Her disabilities were thus removed as effectively as if she had gone to court to get them removed so that she would be free to execute agreements. She was of age, had been married and divorced before, and had the mental capacity to manage her affairs.

The opinion of the majority places emphasis upon the fact that the execution of the deed arose out of a contract made during marriage. The agreement was in writing and signed. It is short and simple, and it plainly provides for a contingent fee of one-fourth. Mrs. Griffith did not contend that she could not or did not understand it. Such an instrument was not void but only voidable. Leake v. Saunders, 126 Tex. 69, 84 S.W.2d 993 (1935). The execution of the deed, for services performed and to be performed in the future, after the removal of the disability of coverture, constituted an affirmance of the contract. Leake v. Saunders, supra. Thereafter the deed could only be set aside, as any other deed, for fraud, duress or mistake.

Moreover, when this suit was brought, the contract was fully executed as far as Mrs. Griffith was concerned. This Court in Podolnick v. Hamilton, 349 S.W.2d 715 (Tex.1961), said, “It is undoubtedly the rule that where a married woman has purchased property and paid part of the purchase price she cannot by rescinding the contract recover back that part of the purchase price which she has paid * * That part of the contract which has become executed is binding upon her in the absence of fraud or mistake. I see no reason why the rule should not work both ways; i. e., why it should not work as to property conveyed for a consideration as well as to property purchased.

In this day of equal rights for women, it should be borne in mind that equal rights carry with them equal responsibilities. In my opinion, the acts of the divorced Mrs. Griffith should be treated with equality and by the same standards as if the suit were one by Mr. Griffith. In such event the deed, in my opinion, could only be set aside for fraud, duress or mistake. Mistake and duress are not pleaded. So that leaves only fraud.

The Court of Civil Appeals correctly found that “the evidence shows * * * that appellant [Mr. Archer as well as his wife and partner, Mrs. Archer] fully, faithfully and satisfactorily performed all of his obligations to appellee under his contract of employment with her.” That court and this Court find no evidence of actual fraud.

Since it is conceded that there is no actual fraud and that counsel fully, faithfully, and satisfactorily performed their obligations, the only possible basis for any species of constructive fraud is that the contingent fee of one-fourth fixed, agreed upon, and paid was so exorbitant as to shock the conscience. In my opinion there is no evidence to support such a conclusion in this case.

The only witness to testify that the fee was unreasonable was the same lawyer who had represented Mr. Griffith, the husband, in the divorce case. He testified that the Archers (the attorneys for the wife) had first contemplated asking $5,000 attorneys’ fees to be paid by his client, the husband. At this lawyer’s request, that pleading was not filed. The petition which was filed asked for $1,000 of attorneys’ fees to be paid by his client. Apparently he considered it his duty in representing Mr. Griffith to get the fee lowered so that his client would not have to pay so much. So it was agreed that Mr. Griffith would pay $500, and that “all other attorneys’ fees shall be paid by the respective parties to his or her attorney.”

This lawyer had been a personal friend of Mr. Griffith for some 35 years. They had attended college together. He had fixed his fee to Mr. Griffith after the divorce and property settlement had been consummated. He charged Mr. Griffith considerably less attorneys’ fees than he thought he was entitled to because of their friendship and because of Mr. Griffith’s immediate cash position due to the property settlement. He testified that he thought he had earned a fee of $500 to $600 but he only charged him $350. He estimated that Mr. Archer should be entitled to about $750 on a fixed fee basis. Though he conceded that he had never handled a divorce action on a contingent fee basis and could not recall having ever heard of one being so handled, he testified that in his opinion a contingent fee of one-fourth was unreasonable. This had reference to the handling of the divorce matters incidental thereto and did not include the consideration of any handling of Mrs. Griffith’s property after the divorce.

This lawyer, on cross examination, conceded that he had told Mr. Archer, the wife’s attorney, that the divorce would be contested, and that he had said he did not think Mr. Archer could prevail. He had demanded a jury, paid the jury fee, and the case was placed on the jury docket.

At the time this lawyer was testifying by deposition, the Griffiths had been divorced; Mrs. Griffith had married a Mr. Blakemore; she had divorced Mr. Blakemore and was about to remarry Mr. Griffith. They subsequently did remarry. So the interest in the property conveyed to Mr. Archer was in a building in which Mr. Griffith, the attorney’s former client, had a 50 per cent interest.

Taken in context, it is my opinion that this lawyer’s testimony was that the contingent fee charged Mrs. Griffith was unreasonable. It does not constitute evidence of fraud At most, it amounts to a mere scintilla of evidence of fraud.

On the other hand, the completely disinterested witnesses who testified with regard to the contingent fee testified that it was reasonable. Mr. John Stayton and Mr. Gay-nor Kendall of Austin so testified. Mr. Q. C. Taylor of Austin further testified that contingent fees of 25 to 331/$ per cent were reasonable and customary in divorce cases; that many times the lawyer under such arrangement ended up with little or nothing.

I find it difficult to accept the harsh inferences against the legal profession appearing in Cooper v. Lee, 75 Tex. 114, 12 S.W. 483 (1889). The individual attorney in that case, under the jury’s findings, deserved to be spoken to sharply. He was the son-in-law of his aged, nearly blind father-in-law client. They lived in the same house, and the father-in-law had great trust and confidence in his son-in-law. That trust was betrayed, and it is understandable that the Court was aroused about it. But to say, in effect, that all completed transactions between all attorneys and their clients are suspect and presumably fraudulent until the contrary is proved, goes very far. That case, Cooper v. Lee, involved two tracts. The decision as to the 'first tract is correct and supportable, as in any other case, upon a resulting trust. The attorney son-in-law took his father-in-law’s money and bought property in his own name with it. Under these facts, a resulting trust clearly arose. The action as to the second tract to seF aside a deed was held to be barred by limitations. Hence the language concerning the attorney with regard to it was unnecessary to the opinion.

If the Court should desire to hold that contingent fee contracts in divorce cases are against public policy, that is one thing. But to say that executed contingent fee contracts are to be re-examined one to four years after they have been completed, with the former client being in a position to introduce a deed, cry “fraud” and rest, is, in my opinion, carrying things too far. In such cases, plaintiff should have to show fraud, duress, lack of capacity, undue influence, mistake, want of consideration, or any other legal concept applicable to other actions to set aside a deed.

Nevertheless, even assuming the harshness of the language of Cooper v. Lee to be the law, there is no evidence in this case that the contingent fee set and voluntarily paid was so exorbitant as to constitute a fraud upon Mrs. Griffith.

There are several opinions supporting contingent fees and conveyances in payment of them which are in accordance with this view: Kull v. Brown, 165 S.W.2d 1011 (Tex.Civ.App.1942, no writ), in which the Court enforced a one-third contingent attorney’s fee for services to the wife in a divorce action; Hames v. Stroud, 51 Tex.Civ.App. 562, 112 S.W. 775 (1908, writ refused), in which a widow sought to set aside for fraud a conveyance of land to an attorney in payment of a fee and an instructed verdict for the attorney was upheld; and Parker v. Boyles, 197 S.W.2d 842 (Tex.Civ.App.1946, n. r. e.), in which the court held that as a matter of law a married woman was not entitled to have a deed to her counsel set aside, there being no proof of fraud or misrepresentation.

I would reverse the judgments of the courts below and render judgment that the plaintiff take nothing.

GRIFFIN, SMITH and STEAKLEY, JJ., join in this dissent.

ON MOTION FOR REHEARING Rehearing denied.

POPE, Justice,

(concurring).

Mrs. Griffith asserted that her contract was originally made at a time when she was a married woman and that the contract was voidable. The attorney-client relationship arose while she was thus favored. This fiduciary relationship lodged the burden of proof upon her attorney to overcome her charge that the fee was unreasonable. 1 Black, Rescission and Cancellation, §§ 48, 51 (2d ed. 1929). Counsel, charged with that burden, failed to convince the trier of fact. The judgment must therefore be affirmed.

      . Professor Pomeroy points out that: “The courts of England have uniformly watched all the dealings between attorneys or barristers and their clients with the closest scrutiny, and have established very rigorous rules concerning them. It must be conceded that this equitable doctrine has been to a considerable extent ignored, and these rules have been greatly modified in their application, by the courts in several of the American states. While the fact must be admitted, it cannot be too much deplored.” Pom-eroy, Equity Jurisprudence, 5th ed. 1941, § 960.

      . Plaintiff’s pleading reads in part, “ * * * the conveyance by her to Rancher Archer of the property worth approximately $7,000 would constitute such an exorbitant and unreasonable fee as to constitute a fraud upon this plaintiff. * * * ”■


author: CALVERT, Chief Justice. SMITH, Justice

text:
    Patricia Ann GRANT, Petitioner, v. Bill F. GRIFFIN, Jr., Administrator of the Estate of Wilbert Edward Suggs, Respondent.
    No. A-10489.
    Supreme Court of Texas.
    April 21, 1965.
    Rehearing Denied May 26, 1965.
    Fairchild & Hunt, Center, R. E. McDaniel, Winnie, for petitioner.
    Garrison, Renfrow, Zeleskey, Cornelius & Rogers and Forrest G. Braselton, Lufkin, for respondent.
   CALVERT, Chief Justice.

Patricia Ann Grant was riding in an automobile being operated by a long-time acquaintance, Wilbert Edward Suggs, when the automobile left the highway and presumably ran against a tree. Suggs was killed in the accident and Miss Grant was seriously injured. Miss Grant sued Bill F. Griffin, administrator of the estate of Suggs, for damages sustained as a result of her injuries. The trial court withdrew the case from the jury at the conclusion of the plaintiff’s testimony and rendered judgment for the defendant. The Court of Civil Appeals affirmed. 383 S.W.2d 643. We affirm.

The problem to be considered is whether an occupant of an automobile involved in a one-car accident, suing the administrator of the estate of the deceased operator for damages resulting from injuries sustained in the accident, is prohibited by Article 3716, Vernon’s Texas Civil Statutes, the Dead Man’s Statute, from testifying to the conduct of the deceased and to what was said and done by each of them in the context of events preceding and accompanying the accident.

Before the actual trial began, defendant filed a motion requesting that counsel for plaintiff be instructed to refrain from questioning the plaintiff concerning matters about which plaintiff was not permitted to testify by Art. 3716, and that plaintiff be instructed to refrain from giving testimony concerning such matters. The motion was granted and the instructions were given in some detail. The substance of each specific instruction is not material to our review. It is sufficient to state that by the instructions counsel for the plaintiff was instructed in detail not to question plaintiff, and plaintiff was similarly instructed not to testify, concerning her observations of the defendant’s conduct and condition, her conversations with the defendant and statements by him, and the conduct of the plaintiff preceding the accident.

After a jury was impaneled to try the case, Miss Grant was called as the first witness. She testified, without objection, to her place of residence, education and past employment; that she had been having dates with Suggs for about four and one-half years; and that she was riding in a Falcon pickup operated by Suggs when she was involved in an automobile accident on the highway between Timpson and Tenaha on June 16, 1963, around 6:30 p. m. She was then asked: “And how did the accident occur?” At this point counsel for the administrator objected on the ground that questions and answers concerning the accident had been prohibited by the order sustaining the motion in limine. The court sustained the objection. Thereupon the jury was retired, and the testimony of Miss Grant was taken for the purpose of perfecting her bill of exception. The testimony was re-offered after the jury was returned to the courtroom, but was excluded by the court. Miss Grant was then permitted to testify fully concerning the nature and extent of her injuries and to her hospitalization and medical treatment. It was stipulated that at the time of trial she had incurred necessary and reasonable medical expenses in the sum of $2,681.56.

The plaintiff offered no other evidence tending to explain the accident or its cause, or showing the surrounding circumstances. Indeed, she testified that she knew of no other witness to the accident and of no other person who could testify concerning the accident or to events leading up to it. It was at this point that the court withdrew the case from the jury and rendered judgment for the defendant. The Court of Civil Appeals concluded that all of the excluded testimony related to a transaction with the deceased and was inadmissible. We agree with the conclusion. For a better understanding of our conclusion we will summarize the excluded testimony.

Suggs arrived at the plaintiff’s home in a Falcon pickup around noon and took her to Center, about nine miles distant, for lunch. After lunch they drove around town for awhile and then started back to her home, but it was raining and the car “got stuck” at a place where the highway was under construction. They spent thirty to forty-five minutes getting the car “unstuck,” and then proceeded to her home where they arrived at about 4 o’clock p. m., and where she changed clothes. They then drove to the home of Jerry and Lanell Beckham and visited for about an hour. They left the Beckham home and proceeded toward Timpson. When they left the Beckham home, Suggs did not “appear to be under the influence of alcoholic beverage,” did not “walk with a stagger or wobble,” his speech did not “slur,” and he gave no signs that the plaintiff could notice “that he had been drinking alcoholic beverage.” When they had been on the road for about twenty minutes, Suggs reached under the car seat and pulled out a six-pack of beer, and began opening the bottles and drinking the beer. As they drove around the city limits of Timpson, Suggs “got to driving reckless” and “got to cussing,” and “he got madder as he started on towards Tenaha.” During this period of time, “he wa: drinking beer.”

There was a caution light on the highway between Timpson and Tenaha where they passed the Timpson school. At that point “you had to slow down.” With respect to events transpiring at that point of their travel, she testified: “I told him to quit drinking and he was going to get in trouble and he was driving too fast and I told him to just let me out there and I would go up to the Dairy Queen and call mother and them or I would get out and get with some of the rest of my friends at the Dairy Queen and he slowed down.” When Suggs slowed down, the plaintiff thought he was going to let her out. He pulled off the side of the road and she opened the car door intending to get out, but the car was going too fast. Suggs speeded up and told her “to shut the door and get back in the car.” Suggs pulled back on the road and continued to drink beer.

The plaintiff testified further: “I insisted he let me out. Told him to let me out if he was going to drive that way. The weather was too bad and he was drinking and if he was going to be mad like that and drive and drink, let me out of the car.” It was raining “pretty heavy” and the highway was “rather narrow.” Asked if she had “an occasion to observe the speedometer of the automobile Eddie Suggs was driving,” she replied: “He was making around 80 I imagine.” Asked again: “Do you know approximately how fast he was going when he went off the road?” she replied, “We were going fast. I don’t know how fast.” She testified that his speed was “approximately the same” when they went off the road “as it was prior back there on the road.” The last thing she remembered was “Eddie reaching up under the seat,” the car “going off side of the road” and “a bunch of trees.” Questioned about how many times she asked to get out of the car, she answered: “I don’t know. In different ways I asked him a dozen times directly to let me out. I said let me out when we was up town, at the Dairy Queen and I told him to stop and let me out. I told him different ways a dozen or so times, I imagine, at different times, to let me out.” She testified she never had any chance to get out of the car, and that from the time Suggs got the beer out from under the car seat he appeared “to become intoxicated.” She said: “I had seen him drink beer before and he hadn’t gotten like that. I don’t know. He seemed either sleepy or drunker than usual or something is the reason he was driving so reckless. I don’t know why. * * * ”

The pertinent part of Art. 3716 provides:

“In actions * * * against * * * administrators, or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with, or statement by, the * * * intestate * * * unless called to testify thereto by the opposite party; and the provisions of this article shall extend to and include all actions by or against the * * * legal representatives of a decedent arising out of any transaction with such decedent.”

The disqualification of witnesses imposed by the Dead Man’s Statute has been roundly criticized in many quarters. Wigmore criticized the policy of the statute as early as 1899 in his revision of Greenleaf on Evidence. He referred to it as “deplorable in every respect” because “it is based on a fallacious and exploded principle” which “leads to as much or more false decision than it prevents” and “encumbers the profession with a profuse mass of barren quibbles over the interpretation of mere words.” 1 Greenleaf on Evidence, 16th Ed., 493. In commenting on the statute, McCormick and Ray state: “It is the generally accepted view of all legal writers that exclusion on the basis of interest, regardless of what kind, is both theoretically and practically unsound.” 1 Texas Law of Evidence, 2nd Ed., 306. Maurice Cheek, a member of the Texas Bar, writing as long ago as 1926, characterized the disqualification as “archaic and unjust” and urged that the statute “be abolished altogether.” 5 Texas Law Review 149, 173. District Judge A. R. Stout stated in an excellent comment that “the dead man’s statute is full of snares, traps, and pitfalls, and that we have a rule by a wilderness of uncertain cases as well as a rule by an uncertain statute.” 38 Texas Law Review 14, 23. These criticisms may well be justified; and no doubt the injustice which the statute has wrought has prompted our adoption of a liberal policy of admitting testimony whenever a reasonable construction or application of the statute will permit. See Harper v. Johnson, 162 Tex. 117, 345 S.W.2d 277 (1961); Ragsdale v. Ragsdale, 142 Tex. 476, 179 S.W.2d 291 (1944). But to interpret the statute liberally is far different from nullifying or repealing it. The statute is not court-made law. It was enacted by the Legislature acting well within the boundaries of legislative power, and challenges to the wisdom of legislative action must be addressed to the Legislature and not to the courts. Our only concern here is whether under the provisions of Art. 3716 the testimony of Miss Grant was properly excluded by the trial court.

There is no case decided by this Court directly in point, and we are, therefore, unhampered by the rule of stare decisis. The cause of action asserted in Harper v. Johnson, supra, grew out of a two-car collision, and we held that the surviving operator of one of the vehicles was not prohibited by the statute from testifying in his suit against the administrator of the estate of the deceased operator of the other vehicle to facts establishing fault, including testimony as to his observations and his description of the physical situation and the movement of the vehicles prior to and at the time of the collision. In the course of our opinion we referred to a dictionary definition of the word “transaction,” but the definition did not control our decision. On the contrary, our decision was ruled by our conclusion that the “impersonal, fortuitous and involuntary relationship” between the parties should not be construed as a “transaction” within the meaning of the statute. A few cases in point from other state jurisdictions, reaching varying results, are noted in 80 A.L.R.2d 1306-1310.

We return to the instant case. Miss Grant was undoubtedly engaged in a transaction with Suggs when she agreed to ride with him in the automobile. No words evidencing a formal contract between them were necessary to the creation of a consensual relationship. The relationship of the parties was not “impersonal, fortuitous and involuntary”; it was personal, deliberate and voluntary, created by mutual consent. The evidence establishes that Miss Grant entered the automobile as a guest of Suggs, and the respective rights and duties of the parties in the event of an accident resulting in injury to Miss Grant were governed by Article 6701b, Vernon’s Texas Civil Statutes, the Guest Statute. The statute was a part of the agreement under which the parties embarked on the disastrous automobile trip. They agreed that Miss Grant would have no right of action against Suggs or the administrator of his estate for injuries incurred in an accident while she was riding as his guest unless they were caused intentionally or by conduct on his part which was heedless and in reckless disregard of the rights of others. In the context of this relationship, any right of action for accidental injuries sustained by Miss Grant as a guest grew out of a transaction with the deceased; it grew out of a relationship established by mutual agreement by which the duty of Suggs to Miss Grant was established and delineated. Testimony of Miss Grant that the highway was narrow and that the rain was heavy may have been admissible, but her testimony tending to establish gross negligence on the part of Suggs — driving in the heavy rain and on the narrow highway at 80 miles per hour while in an intoxicated condition — related to a transaction with the deceased and was properly excluded.

A part of the excluded testimony of Miss Grant would, under decisions of courts of some of the other states, have established a duty on the part of Suggs not to injure her through simple negligence. The testimony is that which relates Miss Grant’s efforts to leave the automobile during the trip and Suggs’ refusal to permit her to leave. Some of this testimony was properly excluded because it related to a statement by the deceased, and the remainder was properly excluded because it related to a transaction with the deceased — a transaction by which the relationship of the parties may have been changed and their rights and duties may have been altered.

Eliminating the testimony of Miss Grant which we have held was properly excluded, there remained no testimony establishing a breach of any duty owed by Suggs to Miss Grant. The trial court did not err, therefore, in withdrawing the case from the jury and in rendering judgment for the defendant, and the Court of Civil Appeals did not err in affirming that judgment.

The judgment of the Court of Civil Appeals is affirmed.

SMITH, Justice

(dissenting).

I respectfully dissent. The effect of this decision is to deprive Patricia Ann Grant of her cause of action for damages resulting from injuries sustained in a one-car accident. The car was being driven by Edward Suggs. Suggs was killed in the accident. Patricia Ann Grant is the only known witness to the accident and the only person in a position to testify to the pleaded facts which, if found by the trier of the facts to constitute gross negligence and a proximate cause of the accident and resulting injuries, would support a judgment in her favor. The trial court sustained a motion in limine, thereby prohibiting Patricia Ann Grant’s testimony. Not only that, the trial court withdrew the case from the jury and rendered judgment for the defendant. This action of the trial court was prompted solely by the contention that the provisions of Article 3716, the “Dead Man’s Statute,” had effectively killed Patricia Ann Grant’s cause of action. This Court now holds, in effect, that in a guest statute case where a plaintiff seeks through her testimony alone to present her cause to a jury, she must bow to a statute which has been classified as being one “deplorable in every respect” ; that she must forego her constitutional right to a fair and impartial trial before a jury of her peers; that she must suffer the injuries inflicted upon her without an opportunity to test her credibility as a witness before a trier of the facts; that it is more important to protect the estates of the dead than the rights of the living; that it is presumed that Patricia Ann Grant would more likely swear to a falsehood than to the truth.

It is not my purpose here to advocate a repeal of the statute. Such is not necessary. The statute should have no application in a case such as this. This Court, as late as 1961, in the case of Harper v. Johnson, 162 Tex. 117, 345 S.W.2d 277, declared that the statute should be strictly construed. There the Court was called upon to determine whether or not, under Article 3716, a surviving driver of an automobile-truck collision would be permitted to testify both as to his own actions and those of the decedent. In that case the collision was between strangers. This Court, in holding the testimony admissible, based its holding largely on the fact that two strangers driving motor vehicles approached and collided with each other. We held that the collision was not a “transaction” within the meaning of the statute. It is strange, indeed, to say that an incident becomes a “transaction” within the meaning of the statute merely because the survivor and the deceased were friends and riding in the same vehicle. The Court in Harper v. Johnson recognized an exception where the parties were strangers. We said:

“With this situation in mind, we will give the greatest import to the fact that the Dead Man’s Statute has the effect of limiting the evidence in a judicial hearing to something less than all the available evidence. Justice will not ordinarily prevail where only a part of the available evidence affords the only support for the judgment rendered.”

In this case, the parties were friends rather than strangers. Patricia Ann Grant was riding as a guest in the Suggs automobile, and for these two reasons a “transaction” has evolved, and instead of justice prevailing — justice has been shipwrecked. A stranger when he knocks at the door of justice is received, but the door is closed to a friend in a like situation. Justice has not prevailed because, under the holding of this court, there is no available evidence to support a judgment for Patricia Ann Grant. We said in Harper v. Johnson that:

“To hold that the term 'transaction’ includes such an event as an automobile collision is to disregard the customary, common and ordinary meaning of the word, and we believe that such a holding would be a judicial extension of this exclusionary rule far beyond what the Legislature intended.”

It now develops that this exception was only meant for strangers. The present holding renders absolutely meaningless Article 3714, Vernon’s Annotated Statutes, adopted in 1871, which provides: “No person shall be incompetent to testify on account of color, nor because he is a party to a suit or proceeding or interested in the issue tried.” The Court has effectively restored the English Common Law rule which came into existence around the year 1500 and prevailed for over 400 years. That rule no longer prevails in England. Apparently when declared, it was thought that the best and surest method of securing the truth was to exclude certain classes of witnesses who were apt to swear falsely. It was thought that all persons who had a primary interest should fall within the class to be excluded from the privilege of giving testimony in court. In Harper v. Johnson, the testimony was given by parties who had a “primary interest” in the outcome of an action for damages as the result of an accident involving an automobile and a truck. We held the testimony was admissible. In the present case a person with a “primary interest” and one automobile are involved. We hold that the survivor shall not testify. We hold on the one hand that in the light of “probable legislative intent” the statute was not intended to bar a stranger from testifying, but on the other hand it was probably the legislative intent to forever seal the lips of a friend of the deceased.

In the present case the trial court, with full knowledge that without the testimony of Patricia Ann Grant her case would surely fall, sustained an objection of counsel for the administrator of the Suggs estate based on the ground that the questions propounded to Patricia Ann Grant and her answers thereto as shown in a bill of exception concerning the accident, had been prohibited by the court’s previous order sustaining the administrator’s motion in limine. A concept of justice which excludes the right to present a perfectly good cause of action to the courts for determination should not prevail. The holding here is completely out of harmony with the Texas Constitution, Article I, Section 19, Vernon’s Ann.St., which provides that: “No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.” There must be read into every valid statute the rights given citizens under our Constitution. Failure to do so renders the statute void and it should be so declared. Rather than deprive one citizen of due process, it would be far better and justice would more likely prevail in all automobile collision cases if this Court would clearly hold that the statute does not apply. The testimony of either party, regardless of whether or not other testimony is available, should be admitted under the ruling of the Court. This Court in Harper v. Johnson went part way- — -now, in this case, in the interest of justice, we should go all the way, but leave the repeal of the statute to the Legislature. I reiterate that it is not necessary in this case to declare the statute void. This Court can just as logically declare that the factual situation here presented is no more a “business deal,” or “acts involving’ buying and selling,” or “transactions on the exchange” between the parties involved in the one-car collision than it was in Harper v. Johnson, wherein strangers and two motor vehicles were involved.

I would reverse the judgments of both the trial court and the Court of Civil Appeals, and remand the cause to the trial court for a new trial.

      . Some courts have held that when a guest is restrained from leaving a vehicle, the operator is no longer protected against simple negligence by the Guest Statute. See 25 AX.R.2d 1448; Andrews v. Kirk, Fla., 106 So 2d 110 (1958); Blanchard v. Ogletree, 41 Ga.App. 4, 152 S.E. 116. Contra: Akins v. Hemphill, 33 Wash.2d 735, 207 P.2d 195 (1949). We do not decide this question.


author: PER CURIAM.

text:
    Donald SCHWAB, Petitioner, v. Bobby Glen STEWART et ux., Respondents.
    No. A-10709.
    Supreme Court of Texas.
    May 19, 1965.
    Rehearing Denied June 16, 1965.
    Morehead, Sharp, Boyd & Tisdel, Plain-view, for petitioner.
    Splawn & Maner, Lubbock, for respondents.
   PER CURIAM.

This is an automobile collision case in which a judgment for the plaintiff has been affirmed by the Court of Civil Appeals. 387 S.W.2d 939. The application for writ of error is refused, no reversible error. If the Court of Civil Appeals meant to say that no violation of the provisions of Article 6701d, Vernon’s Annotated Texas Civil Statutes may constitute negligence per se, our action is not to be understood as approving that conclusion.


author: MORRISON, Judge. WOODLEY, Judge

text:
    George A. KINGSTON, Appellant, v. The STATE of Texas, Appellee.
    No. 38151.
    Court of Criminal Appeals of Texas.
    April 28, 1965.
    Rehearing Denied June 9,1965.
    John W. O’Dowd, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, W. Louis White and Joe Shaffer, Asst. Dist. Attys., Houston and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while intoxicated as a second offender; the punishment, two years in the Department of Corrections.

In view of our disposition of this case a recitation of the facts will be deemed unnecessary. Attached to appellant’s motion for new trial is the affidavit of Juror Patton, who swore that during their deliberations as to the punishment to he assessed, “at least one juror was very strong for giving the defendant one year in the State Penitentiary. * * * We had quite a bit of discussion on the matter and finally I believe all of us on the jury would have agreed that one year and six months would be a suitable verdict. But someone specifically pointed out that the penitentiary punishment could be only in ‘years’ and not in years and months.” Following this, the affidavit recites that in order to resolve this dispute the jury sent a note to the Judge inquiring if they might assess appellant’s punishment at a year and months, but the Court declined to answer the note other than to state “Refer you to the Court’s charge.” Following this, the jury discussed the possibility of their verdict being “thrown out” if they set appellant’s punishment at one year and six months. It was at this time that the juror who felt strongly that one year was the proper punishment changed his vote to two years.

At the hearing on the motion for new trial Juror Patton testified to substantially what was set forth in his affidavit, and the State filed no controverting answer to the motion and upon the hearing called no witnesses to testify.

The proposition stated in the jury room that “penitentiary punishment could be only in years and not in years and months” was clearly a misstatement of the law and at least one juror voted for a greater punishment after the statement was made. Farias v. State, 167 Tex.Cr.R. 546, 322 S.W.2d 281.

In Rogers v. State, 158 Tex.Cr.R. 8, 252 S.W.2d 465, we said:

“Since this testimony as to what occurred in the jury room was not controverted, no issue of fact was raised for the trial court’s determination.
“Under this state of the record, it became the duty of the trial court to grant appellant’s motion for new trial.”

See also Davis v. State, 168 Tex.Cr.R. 399, 328 S.W.2d 315 and Adams v. State, 172 Tex.Cr.R. 130, 354 S.W.2d 147.

The judgment is reversed and the cause remanded.

WOODLEY, Judge

(dissenting).

The court, in his charge, instructed the jury that in the event they found the defendant guilty as charged they would “assess his punishment by a fine of not less than One Hundred Dollars nor more than Five Thousand Dollars, or by confinement, in the County Jail for not less than ten days nor more than two years, or by both such fine and imprisonment, or by confinement in the State House of Corrections for a term not to exceed five years.”

During their deliberations, the jury inquired : “Is it permissable to give a sentence of years and months to the State penitentiary rather than whole years?” and the court replied: “Refer you to the court’s charge.”

Juror Patton testified at the hearing on appellant’s motion for new trial that someone on the jury expressed a feeling that the verdict might be overturned because “even years had to be given,” because of which the jury decided to send the note to the judge.

“Q. When the jury received the answer to the note, referring you to the Court’s charge, did someone on the jury then indicate that this confirmed the feeling they had — that it had to be even years?
“A. It may not have confirmed it. It still left a question whether it was proper or not.
“Q. Yes, sir, and then because there was a general feeling on the part of some jurors that, unless you gave even years, the verdict would be overturned—
“A. They considered it as part of it. It might be. We wouldn’t know.
"Q. But there was that general attitude expressed in the jury room?
“A. That’s correct.”

On examination by counsel for the state the juror testified:

“Q. You and the other eleven jurors took the charge of the jury and read it, and to the best of your knowledge, ability and belief, you came to a verdict of guilty and you assessed a punishment of two years?
“A. Yes, sir.
“Q. At the time all twelve jurors felt that two years was a proper verdict in the case?
“A. Correct.
“Q. And Mr. O’Dowd had all twelve jurors polled?
“A. Yes, sir.
“Q. And each indicated this was their verdict in the case?
“A. Correct.”

The record clearly reflects that no juror who claimed to be informed on the subject misled the other jurors or mis-stated the law. Montello v. State, 160 Tex.Cr.R. 98, 267 S.W.2d 557; De La Rosa v. State, 167 Tex.Cr.R. 28, 317 S.W.2d 544; Mays v. State, 167 Tex.Cr.R. 339, 320 S.W.2d 13 (dissenting opinion).

The court’s charge correctly informed the jury as to the applicable punishment. A juror cannot impeach his verdict by testifying that he misunderstood the court’s charge. Collins v. State, 66 Tex.Cr.R. 602, 148 S.W. 1065; McCulloch v. State, 35 Tex.Cr.R. 268, 33 S.W. 230; Davis v. State, 43 Tex. 189.

For like reason the jury’s verdict cannot be impeached by the testimony of one of the jurors that other jurors had an erroneous feeling as to the meaning of the court’s charge.

I respectfully dissent.


author: DICE, Commissioner.

text:
    H. W. (Bill) FAULKNER, Appellant, v. The STATE of Texas, Appellee.
    No. 38014.
    Court of Criminal Appeals of Texas.
    March 31, 1965.
    Rehearing Denied May 26, 1965.

      Valton Sudderth, Brownwood, Ben D. Sudderth, Comanche, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is statutory rape; the punishment, five years.

The prosecutrix, who was thirteen years of age on the date of the alleged offense, lived with her father and other brothers and sisters at Brookesmith, in Brown County. The appellant, sixty-three years old, was an acquaintance of the family and on numerous occasions came to the home and took the prosecutrix and her brothers and sisters riding in his pickup truck.

The prosecutrix testified that on an occasion in the summer _of 1963 “about the time school started” when she was riding in the front seat of the pickup with appellant and her brother was driving, the appellant pulled off her panties and put his “peter” into her private parts. She stated that she knew what a man’s sex organ was and that a man’s penis was what “you refer to as a peter.” She further stated that when appellant committed the act upon her he was sitting in the front seat and that she was on top, facing him, with her feet toward the back of the seat. She related that on other occasions appellant had done the same thing to her and on each occasion would give her money. Upon being asked to spell what appellant did to her, the prosecutrix spelled the four-letter word, “FUCK.”

The eleven-year-old sister of the prose-cutrix, who was riding in the back of the pickup on the occasion in question, corroborated her testimony.

Testifying in his own behalf, appellant denied any act of sexual relations with the prosecutrix. He further testified that his right leg had been amputated and that he wore an artificial limb; that he had a six-inch bone graft and silver plate around the ankle of his left foot and that because of such condition he was unable to make penetration in attempted sexual relations with his wife. His wife corroborated his testimony with reference to their sexual relations.

The jury by its verdict resolved the conflict in the testimony against the appellant.

We first overrule appellant’s contention that the court erred in denying his motion for an instructed verdict of “not guilty” because the state failed to prove penetration or carnal knowledge. The testimony of the prosecutrix that appellant put his penis in her private parts and her description of the act by use of the word, “fuck,” was sufficient to constitute proof of penetration. In the early case of Barnett v. State, 35 Tex.Cr.R. 280, 33 S.W. 340, the word, “fuck,” was .recognized by the court as meaning “carnal knowledge.” Nor did the court err in overruling the motion for an instructed verdict on the ground of a fatal variance between the allegation in the indictment and the proof as to the date of the commission of the offense. The indictment, presented by the grand jury on April 2, 1964, alleged that the offense was committed on or about the 28th day of September, 1963. The testimony of the prosecutrix shows that the offense was committed in the summer of 1963, before the start of school. The state was not bound by the date alleged in the indictment and could prove that the offense was committed before, on, or after the date alleged, so long as the date was anterior to the presentment of the indictment and not barred by limitation. Rangel v. State, 171 Tex.Cr.R. 620, 352 S.W.2d 275.

The refusal of appellant’s requested charge, found in the transcript relative to the other acts of intercourse testified to by the prosecutrix, is not properly before us for review, in the absence of an exception by appellant to the court’s action. Carpenter v. State, 171 Tex.Cr.R. 65, 345 S.W.2d 412.

Complaint is made to certain rulings by the court touching the qualification and competency of the prosecutrix to testify as a witness in the case.

It is first contended that the court erred in refusing appellant’s motion, made in advance of trial, requesting the court to enter an order directing that the prosecu-trix be made available for examination by a psychiatrist to be selected by appellant or named by the court, touching her qualifications as a witness in the case.

While the question of the court’s action in refusing the motion is not before us by a proper bill of exception, we observe that in the case of Rettig v. State, 90 Tex.Cr.R. 142, 233 S.W. 839, this court held that a trial court was without authority in an assault-with-intent-to-rape case to enter an order requiring the prosecutrix to subject herself to examination by a physician.

It is further contended that the court abused his discretion in holding the prose-cutrix competent to testify, and also that the court erred in restricting appellant’s examination of the prosecutrix touching her qualification and competency as a witness and in refusing to allow appellant to read into the record the questions which he proposed to ask her.

The record reflects that before the prose-cutrix was permitted to testify, she was examined by the court and the attorneys for the state and the appellant, outside the presence and hearing of the jury, with reference to her qualification and competency as a witness. She testified that she was thirteen years of age and in the fifth grade in school. She further stated that she knew she was supposed to tell the truth and that it was wrong to tell a lie. She also stated that it was her understanding that when given the oath she was affirming to tell the truth.

Art. 708, Vernon’s Ann.C.C.P., provides in part as follows:

“All persons are competent to testify in Criminal Cases except the following: 2. Children or other persons who, after being examined by the court appear not to possess sufficient intelligence to relate transactions with respect to which they are interrogated, or who do not understand the obligation of an oath.”

Under this statute, the competency of a child as a witness is for the trial court’s determination and his ruling will not ordinarily be overturned on appeal except for an abuse of discretion. Nicholas v. State, 99 Tex.Cr.R. 504, 270 S.W. 555.

From the record it appears that the prosecutrix possessed sufficient intelligence to relate the transaction with respect to which she was interrogated and that she understood the obligation of an oath. In holding her competent to testify, the court did not err.

While the record reflects that during the examination of the prosecutrix the court refused to permit appellant’s counsel to “ask a few more questions touching her qualifications,” the record does not reflect that the court refused to allow appellant to read into the record the questions he proposed to ask. The record reflects that, during the examination of prosecutrix’s eleven-year-old sister outside the presence and hearing of the jury as to her qualifications and competency as a witness, appellant requested permission to read into the record certain questions which he desired to ask and was informed by the court that he could ask the questions on cross-examination of the witness. We have carefully considered the manner in which the court determined the competency of both the prosecutrix and her sister and find no error therein.

Complaint is also made to the court’s refusal to permit the witness Ovid Walls, who was principal of the elementary school which the prosecutrix attended, to testify relative to certain intelligence tests given the prosecutrix and the results thereof. Saucier v. State, 156 Tex.Cr.R. 301, 235 S.W.2d 903, is relied upon by appellant in support of his contention that such testimony should have been admitted before the jury. In the absence of the jury, the witness Walls testified that the prosecutrix had been given certain intelligence tests the results of which showed a mental deficiency. One of the tests reflected that the prosecutrix had an I.Q. of 79, as against a normal quotient of 100. No testimony was given by the witness that the prosecutrix was insane, which, under Art. 708, supra, would render her incompetent to testify.

In refusing to admit the testimony, the court did not err. Saucier v. State, supra, is not here applicable, because in that case the evidence offered was with reference to the insanity of a witness, which, under the statute, could render the witness incompetent.

Appellant’s remaining claims of error relate to certain jury arguments of state’s counsel.

In his opening argument to the jury, the district attorney made reference to appellant as a man of unnatural and perverted sexual desires. While such reference was a reasonable deduction from the evidence, the careful trial judge sustained appellant’s objection to the argument. No further request was made of the court by appellant. We perceive no reversible error.

In his closing argument to the jury the prosecuting attorney said:

“A number of remarks of counsel need and cry out for an answer. He says, ‘What does this man look like?’ How are we to know what a man looks like that is a deviationist? We have read only recently of another case * * * ”

We find no reversible error in such argument, as counsel was interrupted by the court and no reference was made to any other particular case.

The judgment is affirmed.

Opinion approved by the court.