author: SPERRY, Commissioner.

text:
    Geneva Pearl MADDOX, Plaintiff-Appellant, v. Robert VIETH et al., Defendants-Respondents.
    No. 23731.
    Kansas City Court of Appeals. Missouri.
    June 3, 1963.

      W. F. Daniels, Fayette, for appellant.
    Hale Houts, Houts, James, Randall, Hog-sett & McCanse, Kansas City, for respondents.
   SPERRY, Commissioner.

This is an appeal from an order and judgment granting a new trial.

Plaintiff sued defendant for damages because of personal injuries, and to property. He had a verdict and judgment for $9500.-00. Upon motion it was set aside and a new trial ordered because of the failure of one of the jurors composing the panel to answer a question directed to the entire panel as follows: “Ladies and gentlemen of the jury, have any of you ever had a damage suit? A claim in damages? Have any members of your family ever had any claims for damages?” One juro-r answered in the affirmative and another stated that she had such a case coming up for trial. Juror Taylor .remained silent.

It is conceded that Mr. Taylor’s sister then had a damage suit pending in that same court, wherein counsel for plaintiff in the instant suit was her attorney. On the hearing on the motion, neither party offered any evidence or affidavits. It is plaintiff’s position that the court must have one or the other upon which to base a judgment ordering a new trial.

The basic question in reviewing an action of this kind is whether or not the trial court, in sustaining the motion for new trial for the reason assigned, did so in the exercise of a sound discretion and whether that discretion rests upon a reasonable foundation in fact and upon competent evidence in the record or within the knowledge of the trial court. The appellate courts are more liberal in upholding a trial court’s action in sustaining a motion for new trial than in denying it. Girratono v. Kansas City Public Service Company, Mo., 272 S.W.2d 278, 279.

It was said in Woodworth v. Kansas City Public Service Company, Mo., 274 S.W.2d 264, 270, that the court may rule a motion of this kind upon hearing evidence or upon affidavits. But it should not be necessary to base it on either if the court has personal knowledge of the facts, or if they be conceded.

In Piehler v. Kansas City Public Service Company, 357 Mo. 866, 211 S.W.2d 459, 463, the court held that the right to a trial by jury means the right to a trial by a fair and impartial jury of 12 men. Even though the issue may be decided by three fourths of the jury, a litigant is entitled to the deliberations of 12 qualified men. Lee v. Baltimore Hotel Co., 345 Mo. 458, 136 S.W.2d 695, 698, 127 A.L.R. 711.

If Taylor had spoken the truth, instead of remaining silent, he may or may not have been challenged. But defendant had a right to know the fact regarding his sister’s litigation. From that fact it would likely have developed by questioning that counsel for plaintiff herein was also her attorney. It is highly probable that Taylor would have been challenged. But, in any event, defendant was entitled to know the facts. Brady v. Black and White Cab Co., Mo.App., 357 S.W.2d 720, 725.

The court saw and heard the voir dire examination. Two members of the panel gave information regarding damage suits of themselves or members of their families. The court was in a position to judge whether or not Taylor heard and understood the question, and needed no additional evidence on the point. The court found the fact to be that he intentionally withheld the information. In fact, plaintiff does not contend that juror Taylor did not hear and understand, only that there must be testimony or affidavits in support of these facts. Taylor’s testimony was not offered by plaintiff. Plaintiff’s counsel virtually admits that Taylor heard and understood but argues that it was not prejudicial. Bias and prejudice on the part of a juror may be inferred from his intentional concealment of vital information on voir dire examination. Girratono v. Kansas City Public Service Company, Mo., 272 S.W.2d 278, 281; Triplett v. St. Louis Public Service Company, Mo.App., 343 S.W.2d 670, 673.

The court stated in his memorandum opinion herein that the judgment was excessive. That alone would indicate bias and prejudice. The trial court has broad discretion in such matters and unless there is an abuse of discretion the judgment will be affirmed. We find no abuse of discretion.

The order sustaining the motion for new trial is affirmed.

MAUGHMER, C., concurs.

PER CURIAM.

The foregoing opinion of SPERRY, C., is adopted as the opinion of the court.

All concur.


source: Caselaw Access Project

author: CROSS, Judge.

license: Public Domain

text:
    Vivian DONELSON, Plaintiff-Appellant Cross-Respondent, v. The BOARD OF ZONING ADJUSTMENT OF the CITY OF ST. JOSEPH, Missouri, and Milton Litvak, Elton Klamm, Daniel J. Patton, J. Doyle Norris and Chris Marolis, the members thereof, Defendants-Respondents Cross-Appellants.
    No. 23788.
    Kansas City Court of Appeals. Missouri.
    June 3, 1963.

      Brown, Douglas & Brown, St. Joseph, for appellant.
    J. W. Roberts, St. Joseph, for respondents.
   CROSS, Judge.

This is an appeal from the judgment of the circuit court rendered in review proceedings affirming an order of the Board of Zoning Adjustment of the City of St. Joseph. Cross appeals have been taken both by plaintiff, an owner of a residence property in St. Joseph, and by the defendants— the board and its members. Plaintiff has made no appearance and has filed no brief. The only putative appeal issues before us have been presented by defendants, hereinafter sometimes referred to as “the board”.

The controversy arose in October, 1961, at which time plaintiff undertook to establish and operate a beauty shop in her dwelling house located in a district zoned by ordinance for one-family dwellings, and classified as an “ ‘A’ One-Family Dwelling District”. Applicable zoning ordinances restricted the use of buildings located in that district to one-family dwelling purposes and to “ * * * customary home occupations such as music or dancing lessons, laundry work or dressmaking situated in the dwelling and carried on only by members of the household of the person occupying such dwelling as his or her private residence, provided no window or other display or sign is used to advertise such occupation; provided no commodity is sold upon the premises; provided no mechanical equipment is installed or used except such that is normally used for domestic or household purposes * * *.”. (Our italics.)

In order to obtain an occupation license to operate the contemplated business in her home it was required by ordinance that plaintiff first secure a “use permit” from the city’s superintendent of buildings in the form of a certificate that the proposed business or use is not prohibited by the zoning ordinances. On October 5, 1961, plaintiff applied to the building superintendent for the desired use permit to operate a beauty shop in her home as a “customary home occupation”. Her application was denied by the official. Thereafter she duly appealed to the defendant Board of Zoning Adjustment.

Following the first of two hearings by the board, that administrative body affirmed the action of the building superintendent and denied plaintiff’s application for a use permit. Thereupon she filed her petition for certiorari in the circuit court, pursuant to which that court issued its writ of certiorari directing- the board to certify and return its transcript of the hearing proceedings. Upon reviewing the transcript the circuit court made no order except to remand the cause to the board for further hearing and consideration. A second hearing was held by the board, and additional testimony was heard. Again, the board sustained the action of the building superintendent in refusing plaintiff the use permit and “denied” the appeal. The transcript of the second hearing was duly forwarded to the circuit court for its further consideration of the issues raised by the petition for certiorari.

The evidence heard by the board and reflected by the two transcripts establishes the following material facts: Plaintiff, who as a “beautician” had operated a downtown shop over fifteen years, planned to install the proposed beauty shop in her home basement with a private rest room for patrons, a separate entrance, private sidewalk, and parking space for five cars. Her hours of operation would be from 9:30 A.M. to 3:30 P.M. She would sell no merchandise. There would be a sign placed on a lamp post next to the house to comply with the rules of the State Board of Cosmetology. The shop would be equipped with two electric chair-type hair dryers costing $200.-00 apiece. Other equipment would include a hydraulic chair and a reclining shampoo chair costing together $500.00. Plaintiff had actually remodeled the basement into a finished room approximately twelve by fifteen feet in size, with mahogany wall paneling, counter space, sink, mirrors, a supply room and rest room. The room ceiling was covered with acoustical tile and had recessed lighting. The floor was to he tiled. A separate entrance was constructed, connected to the driveway by a new sidewalk. Necessary plumbing, concrete and electrical work was done. The remodeling above noted was done at a cost of $2808.00 and the beauty shop equipment cost was estimated at between $1000.00 and $1500.00. An inspector for the State Board of Cosmetology testified that there were 56 commercial beauty shops in St. Joseph and 75 “one woman operated residence beauty shops”. The witness further testified plaintiff’s proposed shop would be far better than the average home shop and would be about the same as a commercial shop. He also stated that it was necessary for plaintiff to display a sign in order to operate her shop as planned. Section 15, Rules and Regulations of the State Board of Cosmetology provides: “Signs — Every beauty shop * * shall be provided with a sign designating the services offered and located so as to be clearly visible to the passerby”. Various residents of the plaintiff’s neighborhood testified in protest to the issuance of the use permit on the grounds that plaintiff’s proposed beauty shop would create a traffic hazard affecting the safety of the children, devalue their property and tend to cause other businesses to open in the neighborhood. A protesting petition purportedly bearing the signatures of all residents in the block where plaintiff’s dwelling is located was also filed.

The final pronouncement of the trial court on the review issues was in the form of a preliminary written memorandum opinion, consisting of various fact findings and conclusions of law, filed together with the ensuing judgment from which this appeal arose. The judgment, omitting recitals, is as follows: “WHEREFORE, it is adjudged and decreed by the Court that the decision of the Board of Zoning Adjustment is affirmed * * * ”.

The board makes no complaint of the judgment in respect of its mandatory or decretal portion wherein “it is adjudged and decreed by the court that the decision of the Board of Zoning Adjustment is affirmed”. It is admitted by the board that “The Court came to the same final conclusion as the Board”, and that “the Court and Board did not differ in substance but (only) in approach”. The grievances asserted by the board as grounds for this appeal are contained in assignments of error complaining essentially that the trial court should have affirmed the board’s order without making additional findings of fact and conclusions of law “which were outside the court’s statutory power and which were not necessary to the affirmance of the Board’s order”; that certain of those findings and conclusions.were erroneous; that the trial court erred in failing to rule upon the legality or illegality of the board’s order; and, that the court erred in substituting its discretion for that of the board upon.factual issues.

The assignments before us present nothing for our determination. “Where a final judgment in a matter grants to the appellant all the rights and relief he could possibly receive in a cause of action, there is no point in considering possible error in the case, and any error preceding the judgment becomes harmless”. 5 Am.Jur.2d, Appeal and Error, Sec. 776, p. 219. Furthermore, “The judgment of the intermediate court, not the reasons assigned for it in the opinion of that court, is the subject of review on appeal to a higher court, and error cannot be assigned in the higher court on the opinion of the intermediate court”. 5B C.J.S. Appeal and Error § 1813, p. 149. Hence, says that authority, “ * * * if the decision of the intermediate court can be upheld on proper grounds, it is immaterial that the decision was based on an erroneous ground”.

The rule last quoted above is stated in 5 Am.Jur.2d, Sec. 727, p. 170, as follows: “According to the essence of its function, an appellate court is concerned with whether the holding, and not with whether the reasoning, of the decision appealed from is correct, and generally a correct decision will not be disturbed on appeal because it is based on an incorrect ground, * * * This is so because the force of a judgment does not reside in its recitals, but in the mandatory or decretal portion thereof, which adjudicates and determines the issues in the case and defines and settles the rights and interests of the parties as far as they relate to the subject matter of the controversy. 49 C.J.S. Judgments § 71, p. 189. This rule was recognized and applied in Ford v. Boyd, Mo.App., 298 S.W.2d 501, and Casper v. Lee, 362 Mo. 927, 245 S.W.2d 132. The foregoing principles are reflected in the following statement quoted from 101 C.J.S. Zoning § 388, p. 1233: “As in other civil cases, on further review of proceedings before zoning officials or boards errors which are harmless or not prejudicial will not justify disturbance Of the decision of the lower court. An erroneous conclusion of the court below is harmless where there are other valid grounds to support its judgment”.

In this case the appealing board has been granted “all the rights and relief * * * (it) * * * could possibly receive” by the judgment of the trial court which un-qualifiedly affirms the order appealed from, and, perforce, adjudicates the legality thereof. As we have demonstrated above, any possible error contained in the court’s memorandum opinion or in the recitals of the judgment, as contra-distinguished from the decretal portion, would be harmless and immaterial. We therefore rule that it is not necessary to consider or determine the assignments of error before us and consequently refrain from so doing.

In conclusion, we observe that the trial court has acted appropriately within the scope of its statutory function and authority. It is provided by Section 89.110 V.A.M.S. that the circuit court “may reverse or affirm, wholly or partly, or may modify the decision brought up for review”. These provisions limit the authority of the circuit court to the correction of illegality in orders made by the Board of Adjustment. Veal v. Leimkuehler, Mo.App., 249 S.W.2d 491; State ex rel. Nigro v. Kansas City et al., 325 Mo. 95, 27 S.W.2d 1030. However, as pointed out in the Veal case, the statutory scope of review must be read in the light of the minimum standard for review provided by V.A.M.S., Const., Art. V, Section 22, requiring that the review of all final decisions of any administrative body in which a hearing is required shall include the determination whether the same are supported by competent and substantial evidence upon the whole record.

We are convinced by our review of the record that the trial court’s judgment of affirmance (which amounts to an adjudication that the board’s order was not illegal) is supported by “competent and substantial evidence upon the whole record”. It is clearly apparent from the evidence that plaintiff property owner was not entitled to issuance of the use permit she sought because the proposed use was not within the permissive provisions of the zoning ordinance.

The judgment is affirmed.

All concur.


author: STEWART, Chief Justice.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Mount TAYLOR, Jr., et al., Appellees.
    Court of Appeals of Kentucky.
    June 7, 1963.
    John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Raleigh O. Jones, Lyndon, for appellant.
    Robert J. Watson, Middlesboro, for ap-pellees.
   STEWART, Chief Justice.

This is a condemnation proceeding instituted to obtain right of way to relocate and reconstruct U. S. Highway 119 in Bell County. The commissioners appointed by the Bell County Court allowed appellees $4500 for their property. On appeal to the circuit court, a jury awarded appellees $8250 for land taken, for damages to the' remainder and for a permanent easement. This appeal is from the judgment entered on the verdict.

Appellees, Mount Taylor, Jr. and his wife, Pauline, owned two tracts of land embraced in the highway relocation and reconstruction project. One parcel, containing %o of an acre, fronted on the north side of the highway. Appellant condemned approximately 40% of it, acquiring the portion which included all the improvements, consisting of a 4-room frame house, garage, utility house, outhouse and coal house. The other tract, located 500 feet east of the first tract and on the south side of the highway, consists of a lot 100 x 150 on which is situated a 6-room frame house, storage house and outhouse. The lot is below the grade of the existing highway, with a creek in front, so that it is necessary to cross a footbridge to gain access to the dwelling on the lot. Appellant condemned ¾0 of an acre of this lot for a permanent easement in order that its employees may enter upon the property to clean and maintain a ditch outlet to a culvert going under the highway.

James Workman, appellant’s appraiser witness, estimated the value of the land taken from the northern tract at $3390 and the damages to the remainder at $100. In respect to the easement over the south tract, he valued the land before and after the taking, leaving a difference of $80. The trial court refused to permit Workman to cite in his testimony comparable sales to substantiate his figures; and this evidence was entered by avowal. His total valuation on the property involved was $3570.

A perusal of the testimony made on avowal demonstrates the error of 'the trial court’s rulings on the comparable market data offered and rejected, because the evidence of voluntary sales of other property in the neighborhood of a somewhat similar nature, such transactions having been consummated within a year or two of the institution of this proceeding, was competent and therefore admissible. With reference to the probative importance of evidence of comparable sales it has been said:

“Such sales, when made under normal and fair conditions, are necessarily a better test of the market value than the speculative opinions of witnesses; for truly, here is where ‘money talks.’ The question whether such evidence shall be admitted does not depend upon any fundamental principle of the law of evidence, but is a purely practical one, depending upon whether there is a net gain or loss to the orderly and expeditious administration of justice in land damage cases by the use of such evidence.” (Emphasis added.)

This excerpt is taken from Nichols, Eminent Domain (3rd Ed. 1952), vol. 5, sec. 21.3, p. 275. See also Stewart v. Commonwealth, Ky., 337 S.W.2d 880; Commonwealth v. Begley, 272 Ky. 289, 114 S.W.2d 127; West Kentucky Coal Co. v. Dyer, 161 Ky. 407, 170 S.W. 967; and Music v. Big Sandy & Ky. R. R. Co., 163 Ky. 628, 174 S.W. 44.

We conclude the judgment must be reversed for the reason, as pointed out, that competent evidence pertaining to comparable sales was wrongfully excluded.

It is next contended the evidence of ap-pellees’ witnesses in fixing the value of the property located on the north side of the highway was based almost entirely upon the replacement cost of the improvements, without taking into account any diminution for depreciation. The testimony of Pauline Taylor, one of the con-demnees, appears to follow this line of proof in making her evaluations. Her husband, the other condemnee, weaves in evidence of a similar nature in his testimony. This Court, in considering estimates concerning the cost of improvements to prove the before-taking value, without any allowance for depreciation, has held:

“Testimony as to replacement cost of new construction is erroneous, since the landowner is entitled to recover only the present value of the property taken in its depreciated condition.” See Commonwealth v. Rankin, Ky., 346 S.W.2d 714.

We make mention of the foregoing facts, and the law applicable thereto, as there will unquestionably be a retrial of this action.

An additional complaint is that ap-pellees’ witnesses, having no special training or experience in appraising or evaluating real estate, were not qualified to testify as to the values of the property involved here. We have not adhered to the rule that witnesses must be experts in order to state their opinions as to real estate values. In 32 C.J.S. Evidence § 545, p. 299, this pertinent statement is set forth:

“A witness, to be qualified to testify as to the value of realty, must know the property to be valued and the value of property in the vicinity, must understand the standard of value, and must be possessed of the ability to make a reasonable inference.”

We quote this general rule for the future guidance of the trial court in the retrial of this case.

A final complaint of appellant relates to the tract on the south side of the highway affected by the permanent easement. All of appellees’ witnesses fixed the value of the easement taken at $1500. No factor of any kind was given to substantiate this figure.

The evidence shows without contradiction that appellant, in securing the easement, did so to enable its employees to enter upon appellees’ lot in order to clean and maintain a ditch outlet to a culvert which passes under U. S. Highway 119. The acquisition and future exercise of this right will in no wise affect, or even change, appellees’ use and enjoyment of this property. Nor is access to the road limited to any extent. Actually, the proof reveals that the duty assumed by appellant in taking over the burden of keeping the ditch open is nothing less than a benefit conferred upon appellees because it relieves them of such a task in the future.

Under the circumstances recited we conclude appellees should recover only nominal damages as a result of the taking of the easement. What an award of nominal damages should be as to amount is discussed in Stoll Oil Refining Company v. Pierce, Ky., 343 S.W.2d 810.

Wherefore, the judgment is reversed and the case is remanded for a new trial in conformity with this opinion.


author: CLAY, Commissioner.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Mary Irene SHELTON, Appellee.
    Court of Appeals of Kentucky.
    June 7, 1963.

      John B. Anderson, Owensboro, for appellant.
    Gwin & Iler, Owensboro, for appellee.
   CLAY, Commissioner.

This is a suit against appellant defendant insurance company to enforce its liability under an automobile liability policy based upon a judgment obtained against its insured. The case was submitted to the jury on two of defendant’s defenses and a verdict for $10,500 was returned for the plaintiff appellee.

Defendant first contends it was entitled either to a summary judgment or a directed verdict because of certain exclusions in the policy. The policy coverage did not apply if (1) the injured party was an “employee” of the insured other than a “domestic”, or (2) if the insured was operating an automobile owned by another person which was furnished for his “regular use.”

The injured plaintiff had been employed by a railroad section crew as a cook, preparing and serving meals for a group of fourteen L. & N. employees. She was paid from a fund to which members of this group made weekly contributions. At the time of the accident the plaintiff, on her way to work, was riding in an automobile owned by a member of another section crew, allegedly being operated by the insured.

Defendant contends that as a matter of law the plaintiff was an employee of the insured and not a domestic, relying upon Barres v. Watterson Hotel Co., 196 Ky. 100, 244 S.W. 308, and Getlin Adm’r v. Maryland Casualty Co., 9 Cir., 196 F.2d 249, 50 A.L.R.2d 73. The facts in those cases are so entirely dissimilar to the ones here that they do not touch the issues presented on this point.

The plaintiff was not an employee of the insured if she was an independent contractor. In our opinion she could be so classified. See Turner v. Lewis, Ky., 282 S.W.2d 624. Even if we assumed she was not an independent contractor but an employee of a group to which the insured belonged, this does not necessarily mean that she was an employee of the insured within the terms of the policy provision. In Oklahoma Farm Bureau Mut. Ins. Co. v. Mouse, Okl., 268 P.2d 886, it was held that a partnership is a distinct entity from the individual members constituting it, and an employee of the partnership was not an employee of the individual members. We have a similar situation here.

Assuming, however, that plaintiff was an employee of the insured, the question still remains as to whether she may be classified as a “domestic”. While a “domestic” ordinarily means a household servant or one who works for his master in the latter’s home, it is the nature of the employment, whether commercial or domestic, which is the important consideration. See Robinson v. Lytle, 276 Ky. 397, 124 S.W.2d 78. The group employing the plaintiff had a home away from home. She there performed what would normally be an important household duty for the members of the group individually and collectively. She was not employed in the business in which her employer was engaged as was the situation in Barres v. Watterson Hotel Co., 196 Ky. 100, 244 S.W. 308. Her duties were essentially those performed by domestics. See City of Louisville v. Sebree, 308 Ky. 420, 214 S.W.2d 248.

Considering all of the aspects of plaintiff’s status above discussed, it is our opinion that she does not fall within the classification of those excluded by the policy. It should be noted that neither the word “employee” nor “domestic” is defined in the policy and in the light of permissible interpretations of those words, they are to a certain extent ambiguous. Under such circumstances a construction most favorable to the insured may properly be adopted. Ransdell v. North American Accident Ins. Co., 275 Ky. 507, 122 S.W.2d 114.

Since the material facts with respect to the status of the plaintiff were not in dispute, the question of coverage is a matter of law. Niceley’s Adm’x v. Mattox, Ky., 242 S.W.2d 608. Instead of the defendant’s being entitled to a directed verdict on this issue, the plaintiff was entitled to one. It was therefore unnecessary to submit it to a jury, but defendant certainly has no ground for complaint that they found for the plaintiff.

Defendant was not entitled to a directed verdict on the ground the automobile allegedly operated by the insured was furnished for his “regular use”, which was another exclusion in the policy. The facts with respect to this question were not in dispute and it is clear as a matter of law that this exclusion did not apply.

Defendant argues at length concerning the propriety of the instructions given to the jury. They substantially encompassed the issues we have heretofore discussed, but if in any respect erroneous, it was not prejudicial because plaintiff was entitled to a directed verdict on the question of whether or not she was excluded from coverage.

The final contention of the defendant has merit. By amended answer it pleaded that in the original action a fraud was worked upon it in that the plaintiff and the insured conspired to make it appear that the insured was the driver of the automobile when in truth and fact he was not the driver. The trial court would not permit the defendant to introduce material proof on this issue of fraud and collusion. We believe this was error.

As a general rule if an automobile liability insurer has a right to defend an action against the insured and has timely notice of such action, a judgment in the case is binding upon it (when later sued by the injured person) as to those issues which were or might have been litigated in the original suit. 5A Am.Jur., Automobile Insurance, section 191 (page 190); Metropolitan Casualty Ins. Co. of New York v. Albritton, 214 Ky. 16, 282 S.W. 187. There is one important qualification of this rule. It does not apply if there is fraud and collusion. This is recognized by the authorities just cited and numerous others.

The doctrine under which a person not a party to a suit may be bound by a judgment therein is not strictly res judicata but “collateral estoppel”. See Commissioners of State Insurance Fund v. Lowe, 3 N.Y.2d 590, 170 N.Y.S.2d 795, 798, 148 N.E.2d 136. It is based upon privity between a party to the original suit and the person who should be bound by the judgment. This privity is in turn founded upon such an identity of interest that the party to the judgment represented the same legal right. Hixson v. Kansas City, 361 Mo. 1211, 239 S.W.2d 341. The rule is essentially one of justice and fairness and recognizes that a question once litigated should not be relitigated. See Hudson Transit Corp. v. Antonucci, 137 N.J.L. 704, 61 A.2d 180, 4 A.L.R.2d 1374. But the doctrine may not be invoked to deprive a party of an actual opportunity to be heard on a material issue. Commissioners of State Insurance Fund v. Lowe, 3 N.Y.2d 590, 170 N.Y.S.2d 795, 148 N.E.2d 136.

It seems obvious that the issue of fraud and collusion between the plaintiff and the insured was not an issue which was or could have been litigated in the original action because the insured allegedly participated in it. In Indemnity Ins. Co. of North America v. Lee, 232 Ky. 556, 24 S.W.2d 278, this Court recognized that fraud and collusion is a valid defense which may be interposed by an insurance company when sued on a judgment obtained against its insured (although thé Court found the evidence was insufficient to support the defense).

It will thus be seen that the doctrine of res judicata or collateral estoppel should not be applied against the defendant in this proceeding for three reasons: (1) the issue of fraud and collusion was not and could not have been litigated in the original action, (2) there could be no privity based on an identity of interest between the insured and the defendant with respect to this issue, and (3) in justice and fairness the defendant should be permitted to assert this defense.

Plaintiff cites a number of cases to the effect that the original judgment was not void. We agree. It is a valid judgment between the plaintiff and the insured. But the defendant was not a party to that judgment, and its position is simply that the judgment is not binding upon it. In our opinion a proper defense was pleaded and the defendant should have been permitted to introduce proof in support of this defense.

We find no merit in defendant’s contention that the court erroneously denied it the right to bring in other parties by third party complaint. We find no abuse of discretion by the trial court in this ruling, and no prejudice is apparent.

The judgment is reversed with directions to grant the defendant a new trial on the issue of fraud and collusion in the obtention of the judgment against the insured.


author: CULLEN, Commissioner.

text:
    WEST KENTUCKY COAL COMPANY et al., Appellant, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellee.
    Court of Appeals of Kentucky.
    June 7, 1963.

      James F. Gordon, Madisonville, Joseph J. Leary, Frankfort, for appellant.
    John B. Breckinridge, Atty. Gen., William A. Lamkin, Asst. Atty. Gen., Paul E. Hunley, Frankfort, Frank D. Berry, Madi-sonville, for appellee.
   CULLEN, Commissioner.

The Commonwealth condemned, as right of way for a four-lane nonaccess highway, a strip of land containing 8.50 acres, across one corner of a 614-acre tract owned by West Kentucky Coal Company in Hopkins County. The highway will isolate or land-lock a triangular parcel of 10.50 acres. The jury in circuit court awarded $6,700 damages and judgment was entered accordingly. The coal company has appealed from the judgment.

Under a little more than 300 acres of the 614-acre tract there are seams of No. 11 and No. 12 coal (the No. 11 seam lies four feet and four inches below the bottom of the No. 12 seam). Around 200 acres of the tract are “barren” with no coal under them. The remainder of the tract (around 100 acres) originally contained both the No. 11 and No. 12 seams, but the No. 11 seam had been removed to a considerable extent by underground mining. All of the isolated 10.50-acre parcel, and about one-half of the 8.50-acre right of way (longitudinally), were in the area where the No. 11 seam had been removed. The other one-half of the right of way still has both seams beneath it.

The Commonwealth’s witnesses stated that it would not be economically feasible to attempt to strip-mine the No. 12 seam in the area where the No. 11 seam had been mined, because of insufficient ground support for the mining equipment, water problems, etc. They valued at $300 per acre so much of the right of way as had both seams under it. The remainder of the right of way, and all of the isolated 10.50-acre parcel, they valued at $150 per acre (the coal at $50 and the surface at $100). They treated the isolated parcel as having been completely destroyed in value. The total damage, according to their estimates, was around $3,500.

The coal company’s witnesses gave their opinion that the No. 12 coal over the mined-out No. 11 seam could feasibly be strip-mined. They estimated the amount of recoverable coal under the right of way and under the isolated parcel at 240,000 tons, and without using a per ton or per acre value they estimated the damages at around $120,000 (which would average more than $6,000 per acre).

We shall first dispose of the appellant’s contention that the damages are grossly inadequate. In view of the testimony of the witnesses for the Commonwealth that only a relatively small amount of the coal under the right of way and the isolated parcel was recoverable because of the presence of the old mine workings where the No. 11 seam had been mined out, and in view of their testimony that even where both seams were recoverable the value was only $300 an acre, we cannot say that the verdict is inadequate. (Some weight also is entitled to be given to the fact that the coal company listed its land for taxation at a top value of $160 per acre.) We have no source of knowledge that tells us an estimate of a value of $6,-000 an acre for coal land in Hopkins County is credible and an estimate of $300 an acre is incredible.

The appellant attacks on various grounds the testimony of witnesses for the Commonwealth. It is contended that the testimony of the witness, Parks, should have been stricken; first, because he testified that the coal company’s entire tract of land was worth more after the taking than before the taking, and, second, because the “comparable sales” relied upon by Parks were not comparable.

The appellant maintains that Parks gave a “before” value of $117,100 and an “after” value of $124,088, showing an enhancement of close to $7,000. The record discloses, however, that although Parks initially stated a “before” value of $117,100 he quickly corrected it to $125,700. Furthermore, it is reasonably clear from Parks’ testimony that he estimated the damages at $3,522. A considerable portion of his examination was devoted to how he computed the damages, and his “before” and “after” values were very briefly touched on. It appears that the discrepancy between the damages as indicated by his “before” and “after” values, and the damages as separately computed by him, is attributable simply to a slip of the tongue or of the mind in stating the “after” value. In our opinion the jury reasonably would have concluded from his testimony as a whole that he estimated the damages to be $3,522, and the jury should not have been confused or misled by the fact that the difference between his “before” and “after” values did not equal that amount.

As concerns Parks’ testimony with regard to comparable sales, we think the way this testimony was brought out is significant. On direct examination Parks stated in general terms that his estimates of value were based on his experience in dealing with coal properties and on comparable sales. He was not asked to identify any particular sale he relied on. It was not necessary, in order for his testimony to have probative value, that he identify the comparable sales. Commonwealth Department of Highways v. Tyree, Ky., 365 S.W.2d 472. On cross-examination, Parks was questioned in detail concerning what sales he relied on. He mentioned three. One was a tract of 225 acres, some 12 miles from the tract in question, containing six acres of strip coal. He was not asked what price that sale brought. The second was a tract of 100 acres of No. 6 coal, about 25 miles from the tract in question. The price was $150 per acre. He testified that although the No. 6 seam was only about half the thickness of the No. 11 and No. 12 seams, the Ne. 6 coal was twice as valuable because of its better quality. The third sale involved a 55-acre tract some two miles from the tract in question, on which the No. 11 coal had been mined from under the No. 12 coal. The price was $10 an acre. The first two tracts were in reasonable proximity to cleaning, processing or preparation plants. All three sales took place around four years before the trial of the instant case.

It is to be noted that Parks was not asked what price was brought on the first sale; that although the sale of the tract with the No. 6 coal was for only $150 an acre he placed a value of $300 an acre on the unmined portion of the tract here involved; and that although the 55-acre tract on which the No. 11 coal had been mined out brought only $10 an acre he valued the similar portion of the tract here involved at $150 an acre. Thus it is clear that he was not using these sales as a fixed standard of value but only as a guide in arriving at value. Where this is the case, dissimilarities between the lands involved become less significant because the witness makes allowance for the dissimilarities; it may be considered that he has given weight only to the comparable features. See Nichols on Eminent Domain, Vol. 5, Sec. 21.3(1), pp. 430, 431.

In this connection it should be kept in mind that evidence of comparable sales may be offered on either one of two theories: (1) As independent substantive evidence of the value of the property to which the comparison relates; and (2) as foundation evidence supporting the opinion of the expert witness. Stewart v. Commonwealth, Ky., 337 S.W.2d 880. Where (as here) the evidence comes in under the second theory, there is less reason for being strict in regard to similarity, because the evidence serves the purpose only of supporting the credibility of the estimate of value given by the witness. See Commonwealth Department of Highways v. Tyree, Ky., 365 S.W.2d 472.

The dissimilarities brought out in the cross-examination of Parks were that the allegedly comparable tracts were some miles from the tract in question, the sales took place some four years before the trial, the kind of coal in one tract was not the same, and the tracts were not comparable in size. We do not consider the distance to be a fatal dissimilarity because in the case of rural property distance is not highly significant; similarity of use is more important than proximity. See Nichols on Eminent Domain, Vol. 5, sec. 21.31 (3), p. 460. Here the distances were not great considering that the properties all were in the same general Western Kentucky coal field. As concerns the difference in time (four years), we believe the sales were not too remote, considering that there was no evidence of such a change in conditions during the interval as to make the sales unreliable tests of value. See Nichols on Eminent Domain, Vol. 5, sec. 21.31 (2), p. 452. The difference in the kind of coal was compensated for by the testimony that the No. 6 coal was worth twice as much as the No. 11 and No. 12 coal. With respect to the fact that the tracts involved in the sales were not comparable in size to the tract in issue, we think Parks, who admitted that a large tract has more proportionate value for strip-mining purposes than a small tract, compensated for the difference by valuing the tract in issue at a price per acre considerably higher than that obtained at the sales he used for comparison.

The appellant argues that there are a number of respects, in addition to those above mentioned, in which the “comparable” tracts might not have been similar to the tract in issue, such as in the amount of overburden. Our answer to this is that since the indentification of the “comparable” tracts was brought out in cross-examination, for the purpose of attacking the credibility of Parks’ opinion of value, the burden was on the cross-examiner to develop the points of dissimilarity. Parks was not required to show the tracts were similar; the cross-examiner was required to elicit evidence showing they were not similar. (The burden would have been reversed had the comparable sales been offered as independent substantive evidence of value of the tract in issue, or had Parks on direct examination identified the comparable sales for the purpose of lending support to his estimates of value.) This in substance was one of the holdings in Commonwealth Department of Highways v. Tyree, Ky., 365 S.W.2d 472.

In Stewart v. Commonwealth, Ky., 337 S.W.2d 880, 884, we said:

“ * * * where the properties are reasonably similar, and a qualified expert states his opinion that they are sufficiently comparable for appraisal purposes, it is better to leave the dissimilarities to examination and cross-examination than to exclude the testimony altogether. * * * ”

It is our conclusion that the trial court did not err in overruling the motion to strike the testimony of Parks.

As concerns the testimony of the witness, Donan, the appellant maintains that it had no probative value. Since there was no motion to strike his testimony and since we hold that the testimony of Parks was admissible, it would not seem to make any difference whether or not Donan’s testimony had probative value. In any event, the only complaint concerning Donan’s testimony is that he could not estimate, on the stand, the number of tons of coal in the entire 614-acre tract. We think this is of no importance, because he did estimate the value of the entire tract on an acreage basis and it was plain from his testimony that he knew the kinds of coal seams that were under the land and knew the average tons per acre of each seam in areas where both seams were present.

The appellant vehemently argues that the trial court erred in admitting testimony of the county tax commissioner as to the value at which the appellant had listed the land in question for taxation. Admittedly the assessment return was signed by an officer of the appellant company. However, it is argued that the value per acre stated in the return was a standard value uniformly applied by the Department of Revenue to all coal lands in the area and that it was based on a formula prescribed by the department.

Our rule is that evidence of assessed value is not admissible unless the value was “fixed” by the landowner. Commonwealth v. Gilbert, Ky., 253 S.W.2d 264, 39 A.L.R.2d 205. The appellant interprets this as meaning that the landowner must make his own computations and employ his own formula — that he must independently determine the value. In our opinion, however, the rule means simply that the landowner must have turned in a value at which he proposes to have his property assessed. As stated in the Gilbert case, his signed assessment return is considered to be an admission against interest — he had made a commitment to that value. The statute, KRS 132.440, requires that he make oath that he had listed the property at its fair cash value. Under the rationale of the rule, it makes no difference that the landowner used someone else’s standard of value, or formula, of even that he may have considered that he had no real choice as to the value. Certainly the appellant had a choice to list its land at more than the standard value. Particularly is this so since the appellant maintains that its tract was in fact much more valuable than other coal lands in the area.

We hold that the trial court did not err in admitting the evidence of the assessment.

A final contention is that the trial court erred in striking the testimony of the appellant’s witness, Badgett, a coal operator in Hopkins County. On direct examination Badgett testified that the entire tract had a “before” value of $4,264,000 and an “after” value of $4,136,900, making a difference of $127,100. He mentioned two “comparable” sales. On cross-examination he stated positively, twice, that he did not to any extent use these two sales in arriving at his estimate of value of the tract in issue. He stated that the only factor he used was “that there was a certain number of tons of strip coal in that area and that we would be able to recover them at a profit.” When asked again what factors he used, he said: “There is right at six million tons that we considered.” Also, “We are interested in a coal field, and there is approximately six million tons of coal in that field.” And, “We used the factors that there is six million tons of coal in that field, the West Kentucky owns the surface, owns top and bottom, and it is a very, very good deal. * * * We have been negotiating for this tract.” At the close of the cross-examination the court, on motion of the Commonwealth, admonished the jury “not to consider the values placed on the property involved in this litigation by this witness.”

In Commonwealth Department of Highways v. Tyree, Ky., 365 S.W.2d 472, this Court said that an estimate of value by a qualified witness has initial acceptability as evidence without his having stated the factors he considered, but if subsequently on cross-examination it is brought out that his estimate was based solely or primarily on an improper factor his estimate becomes invalid and is subject to a motion to Strike. That is exactly the situation we have here. Badgett’s testimony on direct examination was initially acceptable, but on cross-examination it was brought out that his estimate was based solely on potential profits. This was an improper factor. See City of Newport Municipal Housing Commission v. Turner Advertising, Inc., Ky., 334 S.W.2d 767.

We feel that the rule laid down in the Tyree case should be applied with caution, and the testimony of a witness should not be stricken where there is merely a conflict between his testimony on direct examination and on cross-examination, or where he obviously is confused, or where it is not plain that his estimate was based on an improper factor. It would seem that where there is doubt the opportunity should be afforded, on request, for the direct examiner to clarify the matter by redirect examination.

Here, Badgett’s qualification as having knowledge of market values was none too satisfactory to begin with. Nor did he unequivocally, on direct examination, state that he based his estimates on his knowledge of market values. When first asked whether he was familiar with the fair market value of coal land in the vicinity his answer was, “We have been paying — .” On being asked again his answer was simply, “Yes.” When asked whether in his knowledge of market values he took into account the existence of a voluntary seller and a voluntary buyer, his answer was, “I don’t know exactly how to answer that. We have been after this property for three years and — .” Later he answered a simple “Yes” to a question asking whether he had “undertaken to arrive at” the fair market value of the land in issue. Upon being asked whether he was familiar with sales of coal lands in the county he answered, “My answer is yes, and we bid on that highway — .” Later, after a recess, he answered “Yes” to the question, “Are you familiar with the reasonable market value of land bought and sold by a purchaser under no compulsion to buy and a seller under no compulsion to sell within the 614 acre tract,” and he mentioned two other sales. Finally, in response to a question setting forth all of the elements that should be considered in estimating market value, he stated his estimate of “before” value. Then, after being questioned only as to the number of tons of coal in the condemned parcel and the isolated parcel, he stated his estimate of “after” value.

A reasonable impression from Badgett’s testimony on direct examination, despite his formal answers to formal questions, is that the main factors that influenced his opinion of value were the number of tons of coal in the tract and the fact that he was anxious to acquire the tract for his company. This impression was transformed into a certainty on cross-examination, when he said the only thing he considered was that “there was a certain number of tons of strip coal in the area and that we would be able to recover them at a profit.”

This is not a case where a witness gave clear and forthright testimony on direct examination and then was led into making conflicting statements on cross-examination, or where the witness obviously became confused. On the contrary, the cross-examination verified the impression that one would receive from the direct examination. If the appellant’s counsel thought that the witness was confused or that his testimony was capable of different interpretation, counsel should have requested the opportunity for redirect examination.

It is our opinion that the trial court did not err in admonishing the jury not to consider Badgett’s estimates of value.

The judgment is affirmed.


author: WALKER, Justice.

text:
    STATE of Texas, Petitioner, v. NATIONAL LLOYDS, Respondent.
    No. A-9504.
    Supreme Court of Texas.
    June 19, 1963.
    Waggoner Carr, Atty. Gen., Dudley D. McCalla and Joe Long, Asst. Attys. Gen., for petitioner.
    F. L. Kuykendall, Austin, for respondent.
   WALKER, Justice.

National Lloyds, respondent, brought this suit against the State to recover $6,554.50, alleged to be excess taxes paid under Article 7064, Vernon’s Ann.Tex.Civ.Stat. At the conclusion of a non-jury trial the district court rendered judgment in favor of respondent, and the Court of Civil Appeals affirmed. 364 S.W.2d 465.

The pertinent provisions of Article 7064 are quoted in the margin. On or before March 1, 1960, National Lloyds paid without protest its tax in the amount of $7,893.53 on business done in 1959. The tax was determined by applying the effective rate of 1.1% to the company’s gross premium receipts, computed as provided in the statute. In 1960 the premiums returned and dividends paid to policyholders on policies written during 1959 exceeded the company’s gross receipts by $595,863.93. National Lloyds contends that in these circumstances the State must refund the 1.1% tax previously paid on such excess. It says that under the provisions of the statute the State becomes indebted to the taxpayer for any taxes paid on premiums later returned or paid out as dividends to policyholders, and that this indebtedness must be satisfied either by allowing credit on the tax for subsequent years or by a refund in cash. The Court of Civil Appeals upheld this contention. It reasoned that the statute is ambiguous and concluded that the same should be so construed that the eventual yield to the State will be the stipulated percentage of the net premiums finally retained by the company on each separate risk assumed. We do not agree.

Insurance companies required to pay the tax imposed by Article 7064 are specifically exempted from payment of franchise taxes. Article 12.03 V.A.T.S. Tax.-Gen. The gross premiums tax like the franchise tax is a charge which corporations subject thereto must pay for the privilege of engaging in business in Texas, and the levy is made annually. Article 7064 declares quite plainly that every insurance corporation shall report the gross amount of premiums received during the preceding year and pay an annual tax upon such gross premium receipts. “Gross premium receipts” are then defined as the total gross amount of premiums received less return premiums and dividends paid policyholders.

From a reading of the entire statute, it seems clear to us that each year must be treated as a separate entity for the purpose of ascertaining the tax due. “Gross premium receipts” are computed by deducting premiums and dividends returned or paid during the preceding year from the total premium receipts for the same period. The balance remaining is theij multiplied by the applicable rate to determine tax liability. No tax is owing if the return premiums and dividends exceed the receipts for the year, but it does not necessarily follow that the taxpayer has a valid claim against the State for any taxes previously paid on the excess.

We are dealing with a statute which purports to levy an annual tax. If the Legislature had intended to require a refund of taxes properly paid in prior years, it is reasonable to assume that this intention would have been expressed in plain language. In the interrogation of witnesses and in the argument on appeal, counsel for respondent has referred to a tax credit which he says is allowed for return premiums and dividends. His theory is that the amount of tax owing is computed on the basis of total premium receipts, and that the company is then given an offsetting claim against the State for any tax theretofore paid on return premiums and dividends. He says that it is immaterial whether this claim is satisfied by allowing the company credit on its tax for the current year or by payment in cash where no tax is due.

That is not the plan established by the Legislature. Art. 7064 provides a simple and workable formula for calculating the tax, which is based on “gross premium receipts” for the preceding year. According to the definition set out in the statute, “gross premium receipts” was used by the Legislature to mean net taxable receipts. Return premiums and dividends are deducted from total premium receipts to determine the net amount of business on which the company will be required to pay a tax, but this is the only “credit” which the taxpayer receives for such items. They are not mentioned elsewhere in the statute, and there is no provision suggesting that a claim may be asserted against the State when return premiums and dividends exceed total receipts for the year. It is our opinion that the Legislature did not intend to authorize a refund of taxes computed and paid in accordance with the statutory formula, or the recognition of a “tax credit” which may be carried back to prior years or forward to subsequent years. While unnecessary to a decision of the case, we note that the views here expressed are consistent with the departmental construction of the statute by the State Board of Insurance.

The judgments of the courts below are reversed, and judgment is here rendered that respondent take nothing.

      . “Every insurance corporation * * *
      at the time of filing its annual statement, shall report to the Board of Insurance Commissioners the gross amount of premiums received upon property located in this State or on risks located in this State during the preceding year, and each of such insurance carriers shall pay an annual tax upon such gross premium receipts of 3.85% * * *; and the gross premium receipts where referred to in this law shall be the total gross amount of premiums received on each and every kind of insurance or risk written, except premiums received from other licensed companies for reinsurance, less return premiums and dividends paid policyholders * * *. The gross premium receipts, as above defined, shall be reported * * * to the Board * * * upon the sworn statements of two (2) principal officers of such carriers. Upon receipt * * * of the sworn statements * * *, the Board of Insurance Commissioners shall certify to the State Treasurer the amount of taxes due by each insurance carrier which tax shall be paid to the State Treasurer on or before the first day of March following,

      “ * * *; if the report shows such insurance organization had invested in such Texas securities on such date an amount which is in excess of ninety per cent (90%) of the amount that it had invested in similar securities in the State in which it then had the highest percentage of its admitted assets invested, its tax shall be 1.1% of such gross premium receipts * *


author: McDonald, judge.

text:
    Ex parte Paul BOWIE.
    No. 35933.
    Court of Criminal Appeals of Texas.
    June 19, 1963.
    Boulter, Fowler & Tunnell, by Joe Tun-nell, Tyler, for appellant.
    James S. Grisham, Dist. Atty., Canton, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

This is an appeal from an order in a habeas corpus proceeding denying bail to appellant upon a complaint charging him with murder,

It is made to appear that, subsequent to the entry of the order appealed from, an indictment has been returned charging appellant with said offense, and the question of his right to bail upon the charge by complaint has therefore become moot. Ex parte Davis, Tex.Cr.App., 290 S.W.2d 669; Ex parte Bowles, 166 Tex.Cr.R. 346, 314 S.W.2d 108, and cases there cited.

Appellant contends that the reasoning in support of the holdings in the line of decisions above cited is no longer applicable since the enactment of Art. 275a, Vernon’s Ann.C.C.P., in 1957.

With this contention we do not agree. This enactment pertains to criminal actions wherein the defendant has given bail or entered into a recognizance. The appellant herein has not entered into bail and cannot bring himself under the terms of this statute.

The appeal is dismissed.


author: WOODLEY, Presiding Judge. MORRISON, Judge.

text:
    James JIMERSON, Appellant, v. The STATE of Texas, Appellee.
    No. 35742.
    Court of Criminal Appeals of Texas.
    May 1, 1963.
    Rehearing Denied June 5, 1963.
    Second Rehearing Denied June 29, 1963.
    No attorney on appeal; C. C. Divine, Houston (On Rehearing), for appellant.
    Frank Briscoe, Dist. Atty., Daniel P. Ryan, Jr., and Don Weitinger, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is carrying a pistol, a prior conviction having been alleged to enhance the punishment. Upon his plea of not guilty, the jury found the appellant guilty and assessed his punishment at 7 months in jail.

No brief has been filed in appellant’s behalf.

The state’s evidence, by the testimony of Police Officer J. D. Span, shows the following: A young Negro man ran out of a club or bar in the 3200 block of Lyons Avenue,, in Harris County. In a second or so the appellant ran out of the same doorway and a shot was heard.

When appellant was some 60 feet from the club, and while he was running very fast, he fired a shot at the young Negro.

The patrol car was driven between the two men after the first had crossed the street intersection at the end of the 3200 block of Lyons Avenue, and the appellant, with a .25 caliber Baretta pistol in his hand, was confronted by Officer Span with his pistol drawn and was ordered to drop his gun. On the third demand, accompanied by the officer’s statement that if he did not drop it he intended to shoot him, the appellant threw the pistol to the ground and it fired.

The pistol, which the evidence shows had four live shells in the clip, was introduced in evidence.

The prior conviction was proved as alleged.

The appellant did not testify hut sought by his witnesses to present the defense that the pistol was lawfully kept at the club, and was lawfully used by the appellant to defend himself against an unlawful attack.

As we view the evidence, no issue was raised which would he a defense to the carrying of the pistol in pursuit of the fleeing man, even though the pistol may have been lawfully kept in the club to prevent disorder.

It may he asserted as a legally sound proposition that, if the conditions which sustain carrying the pistol cease, the right to carry it also ceases.” Moore v. State, 86 Tex.Cr.R. 502, 217 S.W. 1036.

The court did not err in refusing appellant’s requested charge submitting such defense.

The evidence is sufficient to sustain the conviction and we find no reversible error.

The judgment is affirmed.

ON MOTION FOR REHEARING

MORRISON, Judge.

Appellant seeks to raise, by reference to an agreement which appears in the transcript, the question of the absence of the judge during the selection of the jury, which we condemned in Pennell v. State, 164 Tex.Cr.R. 401, 299 S.W.2d 699. Such question is not presented by bill of exception, nor does the record affirmatively reflect that the judge in fact did absent himself from the courtroom during a part of the proceedings, hence the question is not presented for review.

Remaining convinced that we properly disposed of this cause originally, appellant’s motion for rehearing is overruled.


text:
    George Eloy BOYETT, Appellant, v. The STATE of Texas, Appellee.
    No. 35822.
    Court of Criminal Appeals of Texas.
    June 12, 1963.

      David C. Baggett, of Hay, Kirk, Van Keuren & Baggett, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Daniel P. Ryan, Jr., and James I. Smith, Asst. Dist. Attys., Houston, and. Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is that of impersonating an officer; the punishment, sixty days’ confinement in jail.

Miss Carole Ann Trumbo testified that the appellant contacted her by telephone on June 24, 1962. He identified himself as Richard Elliston, an officer of the Texas Department of Public Safety Driver’s License Division, and told her tha-t he had heard that she had had her driver’s license suspended, and that he could get it back for her. The witness testified that when she asked what consideration he wanted for doing this, he replied that he was not too interested in money, and indicated that he would restore her license if she would have intercourse with him. Miss Trumbo broke off the conversation and asked him to call her back at a later time.

The next day, the witness related, she went to the Department of Public Safety and reported the incident. It was arranged that she would assent to,the appellant’s demands, should he call again, and would try to secure a meeting with him.

After several telephone calls, it was agreed that the appellant would get her license restored for $50 and “a piece,” and a meeting was arranged. Officers were present and overheard the final telephone conversations and were in the house when the appellant arrived. -

Miss Trumbo testified that the appellant came to her home around 4:00 o’clock, p. m., on Friday, July 13. She related that he knocked on the door and, when asked, replied that he was “Richard.” He told her that he was not in uniform because he was on a “special detail.” The arrangements were repeated, and he assured her that her license would be restored. They had started to the back of the house, when the officers made their presence known and arrested the appellant.

The appellant’s confession was introduced into evidence, without objection, relating the entire transaction substantially as set forth above.

At the trial, the appellant did not take the stand nor did he offer any evidence in his behalf.

In his brief the appellant offers, when consolidated, four principal points for reversal. The first is that the State failed to make out a case under the statute. Article 429, V.A.P.C., provides:

“Whoever falsely assumes or pretends to be a Judicial or Executive Officer of this State or Justice of the Peace, sheriff or deputy, constable or any other Judicial or ministerial officer of any county or a State Ranger in this State and takes upon himself to act as such shall be guilty of a misdemeanor and shall be confined in jail not exceeding six months or be fined not exceeding Five Hundred ($500.00) Dollars or by both such fine and imprisonment.”

It is appellant’s position that there are two elements to this offense — that is, that there must be (1) a false assumption or pretension, and (2) action as such officer (“takes upon himself to act as such.”) Reliance is had upon Walker v. State, 89 Tex.Cr.R. 180, 229 S.W. 853, wherein we find the following:

“In the instant case if appellant had said that he was a deputy sheriff, and wished to search the premises of Mrs. Phillips, and had proceeded with such search upon consent so given, we think a case would have been made out for falsely personating a deputy sheriff.” (Emphasis, added) 229 S.W. 853, 854.

In construing a statute similar to our own (18 U.S.C.A. § 912) the federal courts have reached a similar conclusion that an overt act is necessary. United States v. Barrow, 239 U.S. 74, 36 S.Ct. 19, 60 L.Ed 155; Bass v. United States (C.C.A. 5th Cir., 1928) 25 F.2d 294; United States v. Lawson (D.C.Alaska, 1954) 125 F.Supp. 360.

Thus, the question is whether the State has shown sufficient facts to justify a conviction. What were the appellant’s acts? (1) He telephoned Miss Trumbo and represented himself as an officer of the Department of Public Safety, with (2) the ability to restore her driver’s license. (3) He told her that he had talked to someone “downtown” and that he thought she had a good chance to get her license back. (4) He agreed to get her license back for $50 and “a piece.” (5) He came to her home to collect the consideration and (6) assured her that the license would be returned soon.

It is appellant’s contention that these acts were part of the false representation and none was an “act as such” officer, as contemplated by the statute.

The acts he proposed to do did not have to be within the legal power of the office he purported to fill. Walker v. State, 89 Tex.Cr.R. 180, 229 S.W. 853. The statements to Miss Trumbo that he had talked to those “downtown” and was sure that he could get her license back, connected with his attempt to collect the agreed consideration, fully satisfied the statute.

The second point is that the trial court erred in sustaining the State’s objection to a question propounded to the State’s witness Officer Joe N. Thompson, on cross-examination. The record does not reveal what the answer would have been, and, thus, nothing is presented for review. Mays v. State, 165 Tex.Cr.R. 123, 304 S.W.2d 118; White v. State, Tex.Cr.App., 362 S.W.2d 650; Skinner v. State, Tex.Cr.App., 364 S.W.2d 700; Jackson v. State, Tex.Cr.App., 365 S.W.2d 935.

The third contention is that the evidence does not show that appellant was not a “Driver’s License Patrolman,” as he represented himself to be.

Officer Thompson, of the Texas Department of Public Safety Driver’s License Division, testified without objection that the appellant was not a “driver’s license patrolman with the State of Texas,” nor was he an “executive officer of the State of Texas.” On cross-examination, he admitted that he had not seen the list of officers but had merely checked with his adjutant to determine if there was an employee by that name.

In his confession the appellant related:

“I was at the Fire Station were: I work when I made this call and the fire alarm went off and I had to answer it.”

and that

“The reason that I told Carole that I was a policeman is that I thought it would be easier to get a piece * *.”

While the officer’s statements concerning the list would be objectionable as hearsay, he did testify as a member of the department that to his knowledge the appellant was not an officer. This — taken with the appellant’s statement that he worked in the fire department, and that he told Miss Trumbo he was a policeman in order to secure his purposes — is sufficient to discharge the State’s burden to prove that the appellant was not in truth and in fact an officer.

The last contention advanced by the appellant is that the State failed to show that he held himself out to be a driver’s license patrolman, as alleged in the information.

Yet, we find Miss Trumbo, testifying as to the arrest, answering — without objection — in the affirmative, the following question:

“ * * * at that time he pretended to be a drivers license patrolman for the State of Texas?”

Finding the evidence sufficient, and no reversible error appearing, the judgment is affirmed.


author: WOODLEY, Presiding Judge.

text:
    Norman ROGERS, Appellant, v. The STATE of Texas, Appellee.
    No. 35830.
    Court of Criminal Appeals of Texas.
    May 29, 1963.
    Rehearing Denied June 29, 1963.

      Vernon McDaniel, Wichita Falls, for appellant.
    Donald E. Short, County Atty., Glynn R. Purtle and Ray Gene Smith, Asst. County Attys., Wichita Falls, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is aggravated assault by an adult upon a child; the punishment, 2 years in jail.

The complaint was sworn to by W. R. Truitt, father of the wife of the appellant and grandfather of the child Garry Hill.

The appellant was Garry’s step-father, he having married Anelia who was the mother of four children born of a previous marriage.

Garry was the oldest of the children, being 7 years old at the time in question. He was to some extent mentally retarded and when called to the witness stand was excused without being interrogated.

Mr. Truitt testified that he saw Garry about 7:30 on Monday and observed that “his eyes were black — under his eyes and his face was swollen and his lip puffed out, blackened under his upper lip.” The witness admitted that he filed the complaint before he saw Garry on said date. He was permitted to testify that his daughter, the appellant’s wife, told him on Sunday that Garry’s injuries were “administered” by the appellant (her husband) on November 7th, and that she also told him that she was afraid to file charges herself.

He also testified that the appellant’s wife told him that her two other children, Jimmy and Larry, received injuries by beating administered by the appellant on the same day Garry received his, and that she told him that her husband “knocked her down on the floor and twisted her arm” and “he hit her in the face and blackened her eye” and “while she was on the floor and couldn’t get up why he beat up on the children * * hit them in the face and beat them up * * *."

On cross-examination Mr. Truitt testified: “I had my daughter’s word for it”, but admitted that he did not with his own eyes see anyone strike Garry Hill on November 7th.

Thereafter the appellant testified and called his wife as .a witness who corroborated his testimony that he slapped Garry to punish him for having cursed. Under the appellant’s testimony and that of his. wife the acts of the appellant did not exceed his parental right of moderate restraint or correction of the children.

The state introduced in evidence a written statement of appellant’s wife, after cross-examining her in regard thereto, in which she said her husband beat her and beat the three childern, describing in detail the injuries she said he inflicted upon each of them.

Without regard to whether her statements to others became admissible to impeach her after she was called as a witness by her husband and gave testimony contrary thereto, such statements of the wife to others could not be used against her husband in proof of the allegations of the information.

In the first place, the testimony as to her prior statements was hearsay and, though such evidence may became admissible to affect the credibility of a witness, it is not original evidence which will support a conviction. Where, as here, the witness fails to make out a case and the state has no other witnesses to do so, there was nothing to gain in impeaching her. See 1 Branch’s Ann.P.C.2d Ed., Sec. 186, p. 197, and cases cited.

The prior statements of the witness were not competent evidence for the further reason that the witness was the wife of the defendant

Art. 714 Vernon’s Ann.C.C.P. provides, in part:

“The husband and wife may, in all criminal actions, be witnesses for each other; but they shall in no case testify against each other except in a criminal prosecution for an offense committed by one against the other.”

This Court said, in Woodall v. State, 58 Tex.Cr.R. 513, 126 S.W. 591, 60 L.R.A. 465:

“While there was no exception reserved to the statements of the witness Scott, yet the testimony of the wife, either directly or through hearsay, cannot be used by the state as a predicate for the conviction of the husband in cases of this character.”

In Brock v. State, 44 Tex.Cr.R. 335, 71 S.W. 20, the basis of the rule was discussed at some length by Presiding Judge Davidson, and the conclusion was reached that the wife was an incompetent witness whose evidence cannot be used against the .husband even by his consent, and that offenses against her child are not offenses against the wife.

See also Bush v. State, 159 Tex.Cr.R. 43, 261 S.W.2d 158; 44 Tex.Jur., Sec. 68, p. 1025; 1 McCormick & Ray, Texas Law of Evidence 2d Ed., Sec. 367, p. 318, and Sec. 372, p. 323.

The evidence being insufficient to sustain the conviction, the judgment is reversed and the cause remanded.


text:
    John BUE, Appellant, v. The STATE of Texas, Appellee.
    No. 35921.
    Court of Criminal Appeals of Texas.
    June 19, 1963.
    Paxson & Santiesteban, by H. Tati San-tiesteban, El Paso, for appellant.
    Edwin F. Berliner, Dist. Atty., Sam W. Callan and Mike J. Thompson, Asst. Dist. Attys., El Paso, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is sodomy; the punishment, 15 years.

The allegations of the indictment were fully sustained by the testimony of a police officer who testified that he saw the appellant and one Ray, both males, in the lower bunk of the cell they were occupying in the El Paso City Jail, and that when he told them to get up and they moved, he saw the appellant extract his penis from the rectum of his cellmate Ray. Also the written statement of the appellant was introduced in which he admitted the act charged.

The jury rejected appellant’s testimony at the trial in which he denied guilt, and the evidence is sufficient to sustain the jury’s finding.

Appellant contends that the punishment is excessive, contending that he was in a “grossly drunken condition at the time of the arrest and at the time of the alleged sodomy incident.”

The court instructed the jury on the law of temporary insanity produced by the voluntary recent use of intoxicating liquor, and the introduction of evidence thereof in mitigation of the punishment.

The punishment being within the limits authorized by statute was for the jury and is not excessive. Trevino v. State, No. 35,899 (not yet reported); Lambright v. State, 167 Tex.Cr.R. 96, 318 S.W.2d 653.

The judgment is affirmed.


text:
    Ex parte Chester Victor GUDEL.
    No. 35974.
    Court of Criminal Appeals of Texas.
    June 12, 1963.
    Chester Victor Gudel, in pro. per.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

This is a prison drawn petition for habe-as corpus.

The petitioner attacks the 12 year sentence he is serving which was pronounced against him in Cause No. 8045 in the 99th Judicial District Court of Lubbock County.

The facts are undisputed.

On October 23, 1961, upon his application showing that he was a pauper, the trial court appointed Robert E. Baber, a practicing attorney, to defend Chester Victor Gudel who was charged by indictment in said Cause No. 8045 with burglary.

Neither attorney Baber nor Gudel, the defendant in said cause, waived the 10 days allowed court appointed counsel to prepare for trial.

On October 31, 1961, the case was called for trial; the defendant’s motion for continuance was overruled and the trial proceeded, resulting in a conviction with punishment, enhanced under Art. 62 Vernon’s Ann.P.C. by reason of a prior conviction for a like offense, of 12 years.

Art. 494 Vernon’s Ann.C.C.P. is mandatory. As amended in 1959 it provides:

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

Denial of the 10 days allowed court appointed counsel to prepare for trial violated the statute and infringed the rights of the accused, the petitioner herein, to the assistance of counsel for his defense under the 6th Amendment to the Constitution of the United States.

Under the record, the conviction cannot stand.

The writ is granted and it is ordered that the petitioner be delivered to the Sheriff of Lubbock County to answer the indictment in said Cause No. 8045 in the 99th Judicial District Court of said County as though the case had not been tried.


author: MURRAY, Chief Justice.

text:
    Amy O. THIBODEAUX, Appellant, v. H. B. ZACHRY COMPANY, Appellee.
    No. 14044.
    Court of Civil Appeals of Texas. San Antonio.
    May 22, 1963.
    Rehearing Denied June 19, 1963.
    G. Woodson Morris, San Antonio, for appellant.
    Groce & Hebdon, Richard Tinsman, San Antonio, for appellee.
   MURRAY, Chief Justice.

When this case was before us on October 10, 1962, we dismissed the appeal because we considered the judgment appealed from was not a final appealable judgment. Thibodeaux v. H. B. Zachry Co., Tex.Civ.App., 361 S.W.2d 579. Upon application for writ of error, the Supreme Court held that there was a final judgment and remanded the cause to us for further consideration. H. B. Zachry Co. v. Thibodeaux, Tex., 364 S.W.2d 192.

The Supreme Court in making the above decision necessarily held that the partial summary judgment was brought forward and made final by implication, when the order of dismissal was entered as to the previously undisposed of defendant, City of San Antonio.

When this partial summary judgment was made final, the entire judgment was made final, including the provision reciting that notice of appeal was given. Sessions v. Whitcomb, Tex.Civ.App., 329 S.W.2d 470. We overrule appellee’s contention that the appeal should be dismissed for want of a proper notice of appeal.

We overrule appellant’s contention that the trial court erred in granting a summary judgment in favor of appellee. Appellant was walking along Mittman Street in the City of San Antonio where appellee had been working and had scraped all the asphalt from the street, leaving dirt exposed, on a seven or eight foot strip next to the curb. There was a lone piece of asphalt, about twelve inches square and three or four inches thick, in the street about half way between where appellee had started scraping off the asphalt and the curb. Ap-. pellant could have gone around this piece of asphalt, but chose to step on it because she thought it was the best way. The piece of asphalt turned, causing appellant’s injuries.

The piece of asphalt and the danger of its turning was just as open and obvious to appellant as it was to appellee. There is no reason why appellee should have realized and appreciated the danger any more than should appellant. Under such circumstances appellant should not recover. Wagner v. Lone Star Gas Co., Tex.Civ.App., 346 S.W.2d 645; Morehead v. H. E. Butt Grocery Co., Tex.Civ.App., 333 S.W.2d 428; Hansen v. Ware’s Inc., Tex.Civ.App., 324 S.W.2d 909; Stephenson v. Camp, Tex.Civ.App., 311 S.W.2d 512.

The judgment is affirmed.


author: McNEILL, Justice.

text:
    Joe John OWENS et ux., Relators, v. Hon. Ernest COKER, District Judge, et al., Respondents.
    No. 6651.
    Court of Civil Appeals of Texas. Beaumont.
    May 16, 1963.
    For opinion on rehearing see 368 S.W.2d 959.

      J. Robert Liles, Houston, for relators.
    W. C. McClain, Conroe, William Clarke, Houston, for respondents.
   McNEILL, Justice.

This is an application by relators for writ of mandamus against the Hon. Ernest Coker, Judge of the Ninth District Court of Montgomery County, in which Texaco Inc., Frank Pitts, and Cleveland Realty & Investment Co. were also made respondents.' The application was one to require Judge Coker to set the amount of supersedeas bond to supersede the judgment of said district court dated March 8, 1963. The case in which this judgment was rendered was one instituted by Texaco Inc., Frank Pitts, and Cleveland Realty & Investment Co. against relators, Joe John Owens and wife, seeking an injunction to restrain them, and all others acting in concert with them, from going on or remaining upon a certain acre of land alleged to be situated' in-the William Massey Survey in said county. The petition in that suit alleged that plaintiffs were the owners of and in the last peaceable possession of said premises, and the prayer was for notice to defendants for hearing on temporary injunction, and after such hearing, temporary injunction be issued to remain in force until final hearing when the injunction should be made permanent. Owens and wife answered and asserted that they were the owners of the premises and rightfully entitled to possession thereof. Upon a hearing the court made an order, hereinafter described, restraining relators and others acting in concert with them from entering upon or remaining in possession of the premises until they shall have shown themselves the rightful owners thereof. After this order was granted, relators gave notice of appeal and requested the trial court to set the amount of bond to supersede the order which the trial court declined to do, evidently on the basis that it was a temporary injunction. See Oak Downs v. Watkins, Judge, Tex.Civ.App., 85 S.W.2d 1100.

Although relators’ petition for mandamus describes the injunction as a temporary one, upon oral argument in this matter they contended and have submitted supporting brief that the injunction was actually a permanent one. Respondents join issue on this by ably arguing the order entered was a temporary injunction

The purpose of a temporary injunction ordinarily is to maintain the status quo until final hearing in the case. Lowe & Archer, Injunctions and Other Extraordinary Proceedings, Sec. 328, p. 340.

There are three kinds of injunctions. “They are: (1) Temporary restraining orders; (2) temporary injunctions; and (3) permanent injunctions. The true character of each is determinable not by what it is denominated, but by its distinguishing characteristics and functions.” Mickle v. Garrett, Tex.Civ.App., 110 S.W.2d 1235 (1237).

What, then, is the nature of the injunction granted? Applying the test as stated in Mickle v. Garrett, supra, we must find the injunction’s distinguishing characteristics and functions. The court’s order of March 8, 1963, recites that “came on to be heard the application for temporary injunction * * * and came (the parties) (who will be referred to in this description of the order as they were in the trial court) * * * and announced ready for hearing upon said application for temporary injunction * * * (and) having considered the verified (pleadings of the parties), the testimony of witnesses, * * The order then makes the following findings: (1) On or about February 10, 1963, plaintiffs were in peaceable and exclusive possession of the one acre involved (which is surrounded by other lands in possession of plaintiffs all of which have been enclosed with a fence maintained by plaintiffs for many years). (2) On said date defendants cut in two places the fences and by force entered upon and seized the one acre, built a tin shack and with heavy equipment pushed up trees and graded a road 400 yards from the acre to the western side of plaintiffs’ property; (3) Unless restrained, defendants will continue to“ build improvements and keep possession of and exclude plaintiffs from said land; (4) Plaintiffs were in peaceable and exclusive possession of said lands and enclosure “such possession being the last peaceable, non-contented status of the parties which preceded the filing of this suit”; (S) Defendants are probably not asserting a bona fide claim of title to the land but are actually agents for one who has lost his right through a former suit, to raise the issue of title.

Upon these findings the order provides:

“It is, therefore, ORDERED, ADJUDGED and DECREED by the Court that Defendants, and each of them, their principals, agents, employees and others acting in concert with them, be, and they are hereby, temporarily restrained and enjoined from interfering with the peaceable and exclusive possession of the land herein-above described, as well as all other lands within Plaintiffs’ inclosure, which was cut and breached by Defendants as hereinabove set forth, so that the status quo thereof may be preserved, and restoring Plaintiffs to their prior and exclusive possession of the hereinabove described lands and premises and of all land within the Plaintiffs’ said inclosure, and further enjoining Defendants, their principals, agents, employees and others acting in concert with them, from going upon said lands and premises or from remaining upon said lands and premises, from cutting or tearing down any of Plaintiffs’ fences, and from erecting or maintaining or continuing a fence, building or roadway upon and around the lands and premises hereinabove described and the other lands within Plaintiffs’ said inclosure, and from interfering with Plaintiffs’ possession, use and enjoyment of the above described property and of all other land within Plaintiffs’ said inclosure, which said temporary injunction shall remain in full force and effect until Defendants, their principals, agents, employees, and those acting in concert with them, by final judgment in an action in trespass to try title or other action commenced either as a cross-action herein or as an independent action, show a superior title in Defendants, their principals, and those acting in concert with them (or in any of such persons), to the land herein-above described.”

The order concludes by setting a bond of $2,500.00 to be given by plaintiffs prior to issuance of the writ.

It appears from the above that the order has many of the characteristics of a temporary injunction. The hearing was one upon application for a temporary writ;' the language, generally, of the order, including that setting amount of the bond are characteristic of temporary injunctions. However, as a part of the function of the order, it is provided that “said temporary injunction shall remain in full force” until defendants, “by final judgment in an action in trespass to try title or other action commenced either as a cross-action herein or as an independent action, show a superior title” to the land involved. The concluding section of the prayer of the petition reads:

“ * * * which said temporary injunction to remain in full force and effect until final judgment is entered in this cause; and upon final hearing hereof, said temporary injunction be made permanent, for costs of court, and for such other and further relief, special and general, at law and in equity, to which Plaintiffs may show themselves justly entitled.”

Now, this prayer asks that on final hearing the injunction he made permanent. What final hearing? It was that tendered by the issues in the petition. The object of the petition was to enjoin relators (defendants) from interfering with the possession of respondents (plaintiffs). It did not tender the issue of title. Could a final hearing on the question of injunction make any more permanent order than was made? We think not. Respondents cite McMahon v. Fender, Tex.Civ.App., 350 S.W.2d 239, for the proposition that the injunction issued is a temporary one. In that case a permanent injunction was granted enjoining a defendant from going upon the premises, or cutting any timber therefrom. On complaint that this language amounted to an adjudication of title by a suit for injunction, the appellate court modified the order so that it “will expire when and if defendant, by action in trespass to try title or other means, shows superior title in himself.” By this change the Court of Civil Appeals did not make a temporary injunction out of a permanent one. It required no bond be given as a prerequisite to issuance of such a writ, but merely recognized the right that defendant could litigate the title should he desire. Since he was a trespasser apparently without right, the effect of this action was to cast defendant in the position of a plaintiff who carries the burden of proof in an action of trespass to try title.

But so far as the present action is concerned, the order of the court is a final one. The complete relief sought has been granted. No further hearing on this question could make a more permanent injunction. McMahon v. Fender, supra; Cf. Adams v. Masters, Tex.Civ.App., 333 S.W.2d 629; Wood v. Bird, Tex.Civ.App., 32 S.W.2d 271; Dallas Joint Stock Land Bank of Dallas v. Barrett, Tex.Civ.App., 74 S.W.2d 297. There is no issue of injunction left to be determined. The suit brought has accomplished its mission. If defendants shall later prove title in themselves to the land, the injunction ceases; if not, it is a permanent one. There is nothing further plaintiffs can or need do about it. Though defendants have the option of bringing a cross-action in trespass to try title in the present case, this is in substance the beginning of another law suit.

Since no more permanent order could be made than was made, it was a final judgment in and disposes of the case. Lowe & Archer, Injunctions and Other Extraordinary Proceedings, Sec, 358, pp. 374, 375. Whether it was intended or not, the hearing was a final one and the injunction permanent within the meaning of the prayer of the petition, Sec. 328, pp. 340, 341.

The injunction granted being a permanent one, defendants were entitled to supersede it. Since we believe the trial court will readily set the amount of super-sedeas bond in view of our order, the writ will not be issued if this order shall be complied with promptly.


text:
    Joe John OWENS et ux., Appellants, v. TEXACO, INC., et al., Appellees.
    No. 6650.
    Court of Civil Appeals of Texas. Beaumont.
    May 30, 1963.

      J. Robert Liles, Houston, for appellants.
    W. C. McClain, Conroe, William S. Clarke, Houston, for appellees.
   McNEILL, Justice.

Suit was instituted by Texaco Inc., Frank Pitts and Cleveland Realty & Investment Company as plaintiffs, seeking an injunction against Joe John Owens and wife, Mrs. Joe John Owens, defendants. Plaintiffs alleged they were the owners in fee simple of a certain acre of land situated in the Wm. Massey Survey in Montgomery County; that prior to February 10, 1963, they were in peaceable, lawful and exclusive possession of said land, but on said date defendants forcibly and without plaintiffs’ permission, cut plaintiffs’ fence in two different places, entered the enclosure and erected a tin shack thereon, 8' x 16' in dimension, and were in the act, with heavy equipment, of uprooting trees and grading a road leading to said shack. It was also alleged that defendants were in the process of enclosing the acre of land with a fence for the purpose of excluding plaintiffs therefrom. Because of these acts, plaintiffs prayed that notice be given and on hearing temporary mandatory writ of injunction be issued restraining and enjoining defendants from interfering with the peaceable and exclusive possession of plaintiffs’ property and restoring to plaintiffs their prior peaceable and exclusive possession of said premises and further enjoining defendants from going upon said premises or remaining thereon or doing any other act in relation thereto. It was also prayed that said temporary injunction should “remain in full force and effect until final judgment is rendered in this cause; and upon final hearing hereon, said temporary injunction be made permanent”, and for other general and special relief at law or in equity. Defendants answered and alleged that they were the owners of the premises and rightfully entitled to possession thereof.

The court on February 23, 1963, held hearing on application for temporary injunction and at the conclusion thereof granted an order substantially as prayed for by plaintiffs, except that instead of providing that said temporary injunction shall be in force until final judgment or until further order of the court, this order provided that the injunction should remain in force and effect until defendants “by final judgment in an action in trespass to try title or other action commenced either as a cross-action herein or as an independent action, show a superior title in defendants” to the land involved. For further facts and description of the order, reference is made to our opinion in Cause No. 6651 styled Owens et ux., Relators, v. Hon. Coker, District Judge, et al., Respondents, Tex.Civ.App., 368 S.W.2d 777.

Defendants have appealed from the injunction granted. The parties will be designated here as they were in the trial court. Various points attack the judgment. None of these points raise the issue that the trial court’s findings were without support, or were with insufficient support, in the evidence. However, in a reply brief filed on the date of the submission herein, defendants for the first time, although without point therefor, raise the issue that they were the possessors of the land within the meaning of the doctrine of the last prior peaceable possession of the premises, and the court erred in finding that plaintiffs were in the last peaceable possession. We have studied the Statement of Facts and are satisfied that the trial court’s finding was justified. It was shown that plaintiffs were in prior peaceable, actual and exclusive possession of said acre, as well as of the surrounding tract of some 65 acres; that said 65 acre tract had been enclosed py a four-strand barbed wire fence from at least 1953 until 1960, during all of which time plaintiffs had such possession of the acre. In 1960 one Dr. Tom R. Jones, claiming that he owned the premises, cut the fence and through force took possession of some of the enclosed land and started erecting a shack thereon. Plaintiffs promptly obtained ‘an injunction against him requiring him to vacate said premises and not to interfere with their possession thereof, unless and until he should show himself as plaintiff to be the owner thereof. This injunction remained in full force and effect until on October 10, 1962, at plaintiffs’ suggestion, that suit was dismissed. The day thereafter, Dr. Tom R. Jones crawled through the barbed wire fence around the premises and, having given defendants Owens and wife a deed to the acre of land, instructed them to cut the fences, assisted them in moving material on the acre and helped them erect a tin shack once again on the premises. Plaintiffs, having discovered the second intrusion, promptly filed the present suit for injunction.

It appears that the actual controversy between the parties, Jones and the Owenses on the one hand and appellees on the other, is one involving the common boundary line between the William Massey Survey and the W. C. R. R. Co. Survey, No. 11, which lies to the west. Plaintiffs claim the land as being in the Massey and appellants are claiming it as part of the other survey. The findings made by the trial court are justified from the evidence and he did not abuse his discretion in granting the injunction. Cornett v. Reynolds, Tex.Civ.App., 289 S.W.2d 660.

It is the settled law of this state that the last prior peaceable, exclusive possession of land will be upheld by the court so that the status quo may be protected until trial on the merits. Hodges v. Christmas, Tex.Civ.App., 212 S.W. 825; Houston Funeral Home v. Boe, Tex.Civ.App., 78 S.W.2d 1091 and cases there cited; Taylor v. Gulf Oil Corp., Tex.Civ.App., 303 S.W.2d 541. Courts frown on self-help; to encourage the action on the part of defendants and Dr. Jones in this case is to encourage breaches of the peace, friction and bloodshed. Perry v. Stringfellow, Tex.Civ.App., 113 S.W.2d 1012 (Mod. 134 Tex. 328, 134 S.W.2d 1031). Courts are instituted for the purpose of settling differences between individuals and the course of action pursued by defendants and Jones reflected herein cannot be countenanced.

Prior peaceable possession is a well recognized doctrine of our state. It is presumed that one who has held prior peaceable possession for an extended time is the rightful owner of the premises and he who would challenge the possessor’s right should carry the burden of proving his ownership to the land. He cannot, by stealth, fraud, force or wrongdoing, take possession of premises in the actual peaceable possession of another in order to force the other to carry the burden as plaintiff in an action of trespass to try title. Rogers v. Day, Tex.Civ.App., 20 S.W.2d 104; Rogers v. Day, Tex.Civ.App., 19 S.W.2d 577; Hodges v. Christmas, supra. See excellent article by John H. Crooker, Jr., 15 Tex.Law Review, 237-246.

Defendants urge that plaintiffs failed to show they had ho adequate remedy at law. This was not necessary in the circumstances of this case. Jeff Chaison Town-Site Co. v. McFaddin, Wiess & Kyle L. Co., 56 Tex.Civ.App. 611, 121 S.W. 716; Cargill v. Buie, Tex.Civ.App., 343 S.W.2d 746; Shelton v. Palmer Grove Methodist Church, Tex.Civ.App., 279 S.W.2d 917.

Complaint is made that the trial court rendered what was in effect a permanent injunction when the hearing was one on whether a temporary injunction should be issued and that the injunction went further than the prayer contained in the petition. We sustain this point. The injunction did go further than the prayer therefor. James v. E. Weinstein & Sons, (Tex.Com.App.) 12 S.W.2d 959; 31 Tex.Jur.(2) 252. This was error. Houston Belt & Ter. Ry. Co. v. T. & N. O. R. Co., 155 Tex. 407, 289 S.W.2d 217. In view of the quotation from the prayer above, the injunction granted should be modified so as to remain in full force and effect “until final judgment is entered in this cause”.

Injunction modified and as modified affirmed. Costs of appeal are adjudged one-half against plaintiffs, and one-half against defendants.