author: DAVIS, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Arminta AYLOR, widow, et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 25, 1966.
    Robert F. Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, John J. Blackburn, Robert Lee Hall, Covington, for appellant.
    Raymond R. Vincent, Florence, for ap-pellees.
   DAVIS, Commissioner.

The single issue in this highway condemnation proceeding is whether the jury’s verdict of $15,000 is excessive.

Before the taking the appellees owned a 59-acre tract of land fronting on U. S. Highway 25, about three miles from Florence. The tract had frontage of about 720 feet along U. S. 25; in rectangular shape it extended westwardly from that roadway for nearly 5000 feet. The front portion of the tract was substantially level, but its contours became rolling to rough toward the rear portion of the boundary. There was no building on the land, nor had it been cultivated for several years prior to the taking. However, the owners had laid out some streets and prepared a plat for a projected subdivision of the property into building lots. It was shown that a “lots for sale” sign had been displayed on the property for awhile before the taking, but no lot had been sold at the time of trial.

The acquisition of land in this proceeding was incident to the construction of non-access Interstate Highway 1-75. The taking embraced a strip of land containing 5.1 acres, situated so as to sever the original tract into two separated tracts. The front, or eastern tract, has 37.3 acres after the taking; the back severed tract has about 17 acres. Although there is no longer any direct access between the severed tracts, there is a traffic-bound service road affording ingress and egress for the back tract. The existing frontage on U. S. 25 was not disturbed.

There were seven evaluation witnesses; two testified for the Department, and five testified for the appellees. The two witnesses for appellant expressed opinions that the before value of the tract ranged from $22,400 to $22,500; their after values were set at $18,000 to $18,500 — thus resulting in a difference of $4000 to $4500. The two witnesses for appellant recognized that the front portion of the original tract (fronting on U. S. 25) had a potential for subdivision, but they limited this potential to about the first three or four acres. According to their view, the remainder of the land had only an agricultural value of about $300 per acre.

In sharp contrast, the witnesses for ap-pellees gave before values ranging from $60,000 to $127,200, and after values ranging from $40,600 to $87,650. The differences in before and after values, according to witnesses for appellees, ranged between $13,500 and $39,550. As noted, the jury’s verdict was $15,000, well within the range of testimony.

Witnesses for each side made reference to the sale of a ten-acre tract just across U. S. 25 from the subject property. The sale had been at the rate of $1600 per acre, and there was evidence warranting belief that the properties were comparable. The point of widest difference between the two sets of witnesses is found in their differences of opinion as to the highest and best use of the tract — after the front portion had been appraised for subdivision purposes. For the appellant, the witnesses opined that the best use and value for all but the front four acres was agricultural. The witnesses for appellees expressed the view that all of the land was suitable for subdivision, and pointed to development factors in the rapidly expanding area to support their opinions.

Appellant relies on Com., Department of Highways v. Tyree, Ky., 365 S.W.2d 472, 477, in which this court discussed the matter of probative value of valuation evidence. The crux of the discussion was thus expressed in Tyree.

“If, however, the jury gives the evidence more weight and value than the maximum it is entitled to, the appellate court has power to set aside the verdict either on the ground of palpable excessiveness or on the ground that it is not sufficiently supported by the evidence.” Id., 365 S.W.2d 477.

We do not retreat from the position thus expressed in Tyree. It is our conclusion that the record before us does not afford a basis for application of the Tyree rule. There is no question that the witnesses for appellees were qualified to express the opinions to which they testified. Moreover, they pointed to factors in support of their opinions — factors which may not be said to be fanciful or extravagant. In these circumstances we are not able to say that “the verdict * * * strikes us [at first blush] as being patently in excess of any amount the evidence reasonably could sustain.” Id., 365 S.W.2d 478.

The judgment is affirmed.


source: Caselaw Access Project

author: HILL, Judge.

license: Public Domain

text:
    Cecil Leon MORGAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 25, 1966.
    Cecil Leon Morgan, pro se.
    Harold T. Hotopp, Asst. Atty. Gen., Robert Matthews, Atty. Gen., Frankfort, for appellee.
   HILL, Judge.

This is an appeal from a judgment overruling without a hearing a motion by appellant under RCr 11.42 to vacate his 1947 conviction for armed robbery. The motion charges that: (1) the arrest was illegal; (2) “he was denied counsel until date of trial;” (3) he was denied the right to be confronted by the witnesses against him and the right to cross-examine them; (4) “he was foreed to plead and stand trial, before a jury already picked and seated, prior to the calling of his case for trial, and in the absence of the appellant;” and (5) the trial judge who passed on his motion to vacate was the commonwealth’s attorney at the time of his conviction in 1947.

The illegality of appellant’s arrest is not ground for relief under RCr 11.42. King v. Commonwealth, Ky., 387 S.W.2d 582 (1965).

The allegation that “never at any time (was he) advised of his right to counsel, and that he was flatly denied counsel until the date of trial,” is not legally sufficient to justify the granting of relief under this proceeding. The judgment recites that appellant was indicted January 8, 1947, arraigned January 9, 1947, on which date a notation was made on the indictment, as was the custom at that time, appointing Robert Zollinger, an attorney, to represent appellant. He was tried January 27, 1947. There is no contention the attorney thus appointed was incompetent, failed to safeguard any right of appellant, or that he did not have sufficient time to prepare the case. Neither is it shown a motion was made for continuance or that any protest was made by appellant or his attorney indicating dissatisfaction with the proceedings. On the contrary, the record shows appellant appeared in open court in the presence of and represented by his attorney and changed his plea from one of not guilty to “guilty”. Appellant relies on the authority announced in Nelson v. Commonwealth, 295 Ky. 641, 175 S.W.2d 132 (1943), in support of this, the second ground for relief. Nelson made proper motion for continuance, supported by affidavits containing sufficient grounds, which was overruled. This circumstance and others strip the Nelson case of its authority in the present case. The conclusion we have reached in connection with-the second ground of appellant’s motion in no way limits or modifies the rule announced in Nelson that: “Adequate preparation by an attorney employed by one charged with a crime includes full consultation with his client, interviews with prospective witnesses, study of the facts and law applicable thereto, and the determination of the character of defense to be made and the policy to be followed during the trial.” Burton v. Commonwealth, Ky., 394 S.W.2d 933 (1965), more aptly fits the facts of the present case. A similar contention was held insufficient in the Burton case.

Although appellant entered a plea of guilty, he now attempts to stuff his motion to vacate with the charge he was denied the right of confrontation and was deprived of the right to cross-examine the witnesses for the commonwealth. Certainly appellant had the right to be faced by his accusers and to cross-examine them, but in entering a plea of guilty he thereby waived such rights. He offers no justification for setting aside his guilty plea.

We consider the fourth ground so hopelessly insufficient and ridiculous as to require no elaborate discussion.

There remains the final contention that the trial judge who entered the judgment appealed from was commonwealth’s attorney at the time of appellant’s original conviction. There is no allegation the trial judge nurtured any prejudice toward him. There was no motion asking that the trial judge vacate the bench. The bare allegation that the trial judge was commonwealth’s attorney at the time of his conviction is not a legal ground for vacating the judgment. Cf. Eastridge v. Commonwealth, 195 Ky. 126, 241 S.W. 806 (1922); Kinmon v. Commonwealth, Ky., 383 S.W.2d 338 (1964); and Hobbs v. Stivers, Ky., 385 S.W.2d 76 (1964). See also Nugent v. Nugent’s Administrator, Ky., 293 S.W.2d 478 (1956).

The record in the circuit court showed the case was not handled by the present judge but by Harry F. Poynter, an assistant commonwealth’s attorney.

We conclude the judgment appealed from is correct and is therefore affirmed.


author: MONTGOMERY, Judge.

text:
    Frank ORI, Appellant, v. George STEELE et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 25, 1966.
    Edwin D. Rice, Vincent & Rice, Ashland, for appellant.
    H. David Hermansdorfer, Diederich & Hermansdorfer, Ashland, for appellees.
   MONTGOMERY, Judge.

The question is whether the parties are bound by a written contract as was adjudged or by an oral novation under which appellant would be entitled to claim on a quantum meruit basis.

Appellant, Frank Ori, a builder, entered into a written contract with appellees George E. and Marilyn Henry Steele for the construction of a house at the price of $19,400. Incorporated into the contract were detailed plans and specifications. The contract also provided that the Steeles, without invalidating the contract, could order extra work or make changes by altering, adding to, or deducting from the work, with the contract sum to be adjusted accordingly.

After or near the completion of the project, the Steeles filed this action against the general contractor, appellant, and various subcontractors. It was alleged that the Steeles had paid $13,300 of the contract price; that a number of mechanics’ and materialmen’s liens had been filed against the property; that there were various other claims; that they had not contracted any of them; that they were in great doubt as to whom the balance under the contract of $6,-100 should be paid; and that it was tendered into court for a determination of the liens and claims and for a proper distribution.

The matter was referred to a commissioner who heard proof on the claims as well as on the merits of a contention made by appellant that an oral agreement had been reached with the Steeles which abrogated the written agreement and that under the oral agreement payment should be made on the basis of quantum meruit. The commissioner's findings were adopted by the court and judgment was entered adjudicating the liens and claims accordingly. Further, it was adjudged that the written contract controlled, and judgment was given according to certain conditions and deletions under the contract.

The evidence was conflicting on the issue of whether a new oral agreement supplanted the old written agreement. It is unnecessary to detail the testimony pro and con on this point. The findings in favor of the written contract made by the commissioner and adopted by the judge are supported by substantive evidence. In such case on conflicting testimony the findings of the commissioner and judge are to be upheld. CR 52.01.

Judgment affirmed.


author: PALMORE, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Mae Arnett Preston THORNBURY et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 25, 1966.

      Robert Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Foster J. Collis, Jackson, for appellant.
    George Chad Perry, III, Paintsville, Marcus Mann, Salyersville, for appellees.
   PALMORE, Judge.

The Commonwealth appeals from an award of $3000 for the condemnation of 1.54 acres of the appellee Mae Thornbury’s land.

Three valuation witnesses appeared for the landowner. The testimony of one was stricken, and the Commonwealth contends (1) that the evidence of the other two also should have been stricken and (2) that a mistrial should have been declared when one of the landowner’s witnesses suggested the existence of an oil and gas lease on the property in question, the lessee not being a party to the proceeding.

The witness J. C. May admitted that he had not made a paper calculation of the amount of acreage taken. However, he was familiar with the manner in which right-of-way stakes are set, and he had stepped off the area while the stakes set by the highway department were in place. He estimated it as about 1% acres and figured the landowner would lose another acre or so for an access road leading across a 5-acre field of bottom land to the point at which the department’s plans called for a new entrance to the highway. It was May’s opinion that the property had a market value of $7,500 before the taking and $4,000 afterward, or a difference of $3,500. When specifically asked to assume the correct area as 1.54 acres, he testified as before, again explaining that the net effect of the project would be to reduce the tillable bottom land by 2i4 to 3 acres.

It is our opinion that the trial court was correct in refusing to strike May’s testimony. That his horseback estimate of 1% acres differed from the state engineer’s calculation by .21 of an acre certainly did not destroy its probative value. Its having been imprecisely figured was a circumstance affecting the weight and credibility to be oc-corded his evidence by the jury. Indeed, it seems to us that he made a creditable calculation at that. Moreover, whatever may have been the technical imperfections of his evidence (and assuming also that the engineer’s calculations were infallible), they were cured when he was asked to and did testify on the basis of the correct figure. Commonwealth, Dept. of Highways v. Mayes, Ky., 388 S.W.2d 125 (1965).

All of the valuation witnesses, both for the state and for the landowners, gave “before” values within a range from $7,500 to $8,000, except for the landowner’s witness Arnold Rice. Rice testified that the property had a value of $30,000 before the taking and $10,000 afterward, a difference of $20,000. This extravagant estimate resulted from the property’s having been leased for oil and gas. When asked on cross-examination whether the bottom land which was the focal point of the controversy was still under lease at the present time, he replied as follows:

A. “I think so.”
Q. “Do you know who has it?”
A. “Yes, sir.”
Q. “Who has a lease on it?”
A. “Star Petroleum Company.”

At this juncture the Commonwealth moved for a discharge of the jury and a continuance on the ground that the alleged lessee was not before the court. The motion was overruled, and the landowner took the witness stand in rebuttal. She said that the 8-acre portion of her land that embraces the strip taken in this case had been under lease several times but was not leased at present, and that at one time there were three pumping wells on it but they had not been pumped in over a year.

With Zrespect to the motion to discharge the jury and continue the case, it would seem that any real question as to whether the land was under a subsisting lease could have been resolved quickly and with very little effort, without requiring more than a brief recess. Be that as it may, the onus of seeing that the right parties are before the court is on the condemnor, who institutes the proceeding in the first place. Nichols, Eminent Domain, § 26.1132 (Vol. 6, p. 197). Failure to join the claimant or owner of an interest that can be separately taken and evaluated does not affect a proceeding against the other owners. Cf. Nichols, Eminent Domain, § 26.1134 (Vol. 6, pp. 208, 209). This is the chief practical distinction between the two schools of thought on the nature of the title acquired by a condemnation proceeding. Nichols, Eminent Domain, § 1.142 (Vol. 1, p. 42). The theory in this jurisdiction is that the title is derivative, embracing only the interests of those who are made parties. Cumberland River Oil Company v. Commonwealth, Ky., 350 S.W.2d 700, 702 (1961). It follows that if someone who has hot been made a party has an interest the condemnor desires to acquire, and if it is too late to bring him before the court by amendment, a separate action against him is necessary. Whether Star Petroleum Company (if in fact it had a subsisting lease on the property) could have been made a party at this late stage of the proceedings is, however, unnecessary to decide. At least we can say that the trial court’s refusal to discharge the jury and continue the case for purpose of another trial certainly was not an abuse of discretion.

On the remaining argument, which is that the whole of Rice’s testimony should have been striken, we agree that his fantastic estimates were founded on invalid factors and thus were incompetent. Nevertheless, it seems obvious from the amount of the verdict that the jury disregarded the Rice testimony, and for that reason the likelihood of prejudicial effect is too remote to justify a reversal.

The judgment is affirmed.


text:
    Robert Lee ROWE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 25, 1966.

      Robert Lee Rowe, pro se,
    Robert Matthews, Harold T. Hotopp, Frankfort, for appellee.
   HILL, Judge.

Rowe appeals from a judgment overruling without a hearing his motion under RCr 11.42 to vacate a judgment entered July 12,1963, under which he received a life sentence for armed assault with intent to rob.

The following two grounds are set out in the motion to vacate:

(1) “Movant should have been advised that he was not allowed to enter a plea of guilty on a capital offense especially without the knowledge of a jury.
(2) “Movant charges that he was coerced into a confession. * * * ”

The judgment appealed from recites that appellant filed a similar motion to vacate on September 26, 1963, on which he was given a hearing November 1963 at which movant personally appeared. The first motion was overruled during the same term in which he had his first hearing.

RCr 11.42 provides that: “Final disposition of the motion shall conclude all issues that could reasonably have been presented in the same proceeding.” This court said in Schroader v. Thomas, Ky., 387 S.W.2d 312 (1964) : “We are not required to spin our wheels reviewing post-conviction actions repeating in effect similar actions by the same petitioners asserting similar grounds for relief.”

No appeal was prosecuted from the judgment overruling his first motion to vacate. Nevertheless, we have carefully examined the two arguments made by appellant and the letter of the commonwealth’s attorney and find no merit in either. The net effect of the promise of the commonwealth’s attorney was to recommend leniency on condition he would “tell the whole facts” on the trial of his codefendants. This letter was written after his conviction and while he was in prison. The promise contained in the letter had nothing to do with the entry of his guilty plea. The leniency referred to therein, we believe, pertained to recommendations for parole as the letter goes on to say, “should you desire and make up your mind to tell the whole facts, I am sure that it would be to your interest to do so.”

The judgment is affirmed.


author: WILLIAMS, Judge.

text:
    R. C. CURTIS and W. P. Wilcox, Appellants, v. Carl H. SPADIE, Appellee.
    Court of Appeals of Kentucky.
    Feb. 25, 1966.

      O. M. Miracle, Louisville, for appellants.
    Alvin E. Gibson, Sr., Gibson & Gibson, Louisville, for appellee.
   WILLIAMS, Judge.

Appellants R. C. Curtis and W. P. Wilcox brought this action to recover a real estate broker’s commission allegedly due from ap-pellee Carl H. Spadie for the sale of 22 acres of land in Jefferson County. The Jefferson Circuit Court directed a verdict in favor of Mr. Spadie and this appeal results.

Wilcox was an agent of Curtis, who owned the Dixiland Realty Company. A contract entered into between the parties on a printed form furnished by Dixiland Realty Company is the subject of this controversy. At the top of the form contract in large block letters is the name “Dixiland Realty Company.” Immediately below is a line at the end of which is found the word “Agent” and upon which was written “W. P. Wilcox.” The printed portion of the contract begins: “Thru you as agent, I will take for the following described property * * Various provisions are set out in the printed portion and interlined in the blank spaces provided. One interlineation provided that the seller would pay 10 per cent commission but was changed to read as follows: “Seller agrees to pay commission of $39.00 per lot or adjusted to number of lots.” It was anticipated that the property would be divided into building lots.

The contract provided that unless it was accepted by a certain time, “this proposition is null and void.” In the space immediately beneath the above provision, Carl H. Spadie signed his name. Immediately below that was the provision, “The above proposition is accepted * * Beneath that was written “Sandalwood Heights, Inc., W. P. Wilcox, President, Edward Huff, Secretary and Treasurer.”

Sandalwood Heights, Inc. was incorporated and owned by W. P. Wilcox. Prior to the execution of the contract Wilcox had on several occasions approached Spadie as a potential purchaser of the property. The property was never listed for sale by Spadie with Dixiland Realty Company or W. P. Wilcox.

Four lots were sold off the tract in the following three years, and $39.00 per lot was deducted from payments to Spadie from Sandalwood Heights, Inc. Appellants made no demand for any commission until nearly three years had elapsed and W. P. Wilcox had sold his interest in the corporation. The demand for commission in this suit is an amount equal to 10 per cent of the sale price.

The question before this Court is whether the contract is one between a seller and a purchaser, or one between a seller and an agent. Although the printed form purports to be one which should be executed between a seller and an agent, nevertheless the provisions therein are unquestionably those which pertain to seller and purchaser. The fact that the form indicates that an agent is executing it is of no consequence when viewed in conjunction with the instrument as a whole.

In Hamilton v. Booth, Ky., 332 S.W.2d 252 (1960), it was held that, in order for an agent to recover a commission on the basis of a writing, the writing should show an agreement with him and the terms of the agreement. Even though the printed portion of a contract recites that the property is sold through a realty company by an agent, we said in the Hamilton case that those words, standing alone, are meaningless. The contract here made provision for a commission of $39.00 per lot, but the provision implied that the buyer was to receive the commission as lots were sold and this was the procedure which was followed for nearly three years.

The contract was signed by Spadie, the seller, and Sandalwood Heights, Inc., by its officers, the buyer. It was purely and simply a contract of sale between those parties. The inappropriate language in the printed form was of no consequence. The rights of a real estate broker and his customer whom he serves for compensation arise exclusively from contract, and the service of the broker is predicated solely thereon. Batts v. Snook, 268 Ky. 682, 105 S.W.2d 843 (1937).

It has been held that a broker may represent both vendor and purchaser when each party is aware of the circumstances. Stuart-McKnight & Co. v. Monroe, 222 Ky. 602, 1 S.W.2d 1054 (1928). However, that is not the situation here. Wilcox was the purchaser and is now attempting to collect a broker’s commission because the printed form makes reference to an agency relationship. The mere use of that language in the printed form, under these circumstances, is not sufficient basis for recovery of a real estate commission.

The judgment is affirmed.


author: MILLIKEN, Judge.

text:
    EASTERN COAL CORPORATION, Appellant, v. John ANDERSON et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 25, 1966.
    Baird & Hays, Pikeville, for appellant.
    Combs & May, Pikeville, Stuart E. Alexander, Louisville, for appellees.
   MILLIKEN, Judge.

This is a silicosis claim wherein appellee is claiming total and permanent disability as a result of silicosis. The trial court rendered a judgment upholding a decision of the Workmen’s Compensation Board awarding compensation, and the employer has appealed.

Appellee, John Anderson, filed this claim with the Workmen’s Compensation Board on January 8, 1964, alleging that he incurred pneumoconiosis (silicosis) while employed by the appellant Eastern Coal Corporation, and that as a result of this disease he is totally and permanently disabled. Appellee is forty-one years of age and has worked for the appellant intermittently since July 8, 1941. The last period of employment was from 1947 until August 27, 1963.

The medical evidence introduced before the Board consisted of the testimony of four doctors; it proved that the claimant has silicosis, the only question being the extent of disability caused by the disease, and the Board found him to be totally disabled solely by reason of silicosis and prorated the award on a 60-40 basis against the appellant and the Special Fund, respectively. The trial court sustained the Board on appeal and the trustees of the Special Fund did not appeal.

The appellant contends that the Workmen’s Compensation Board erred in finding appellee to be totally and permanently disabled on account of silicosis. The appellee had had a hip injury, and the appellant contends that this was the cause of his disability. The appellee admitted that pain from the leg was a factor in causing him to quit his work, but asserted that he had a growing difficulty in breathing which also made it difficult for him to work.

This Court on many occasions has held that if evidence upon which a compensation order is based is relevant and substantial, the finding of the Board will not be disturbed. J & R Coal Company v. Cortner (1964), Ky., 382 S.W.2d 875; Imperial Elkhorn Coal Company v. Newsome (1964), Ky., 382 S.W.2d 864. The employer contends that the award should have been prorated between the hip injury and silicosis, but we find no merit in this contention on the facts of this case. See Inland Steel Company v. Mosby (1964), Ky., 375 S.W.2d 268, where the claimant previously had received compensation for fifty per cent disability from an injury, subsequently filed a second claim against the employer for disability caused by silicosis, and the Board found him one hundred per cent disabled from silicosis without allowing any deduction for the previous disability.

The judgment is affirmed.


author: WADDILL, Commissioner.

text:
    E. I. DuPONT DE NEMOURS & COMPANY, Appellant, v. Clyde W. WHITSON, Appellee.
    Court of Appeals of Kentucky.
    Feb. 25, 1966.

      Edgar A. Zingman, J. David Grissom, Wyatt, Grafton & Sloss, Louisville, for appellant.
    James Levin, Hanish & Hanish, Louisville, for appellee.
   WADDILL, Commissioner.

This is an appeal from a judgment upholding an order of the Workmen’s Compensation Board which awarded appellee, Clyde Whitson, compensation benefits for total disability. KRS 342.095. The question for our determination is whether there is substantial evidence that will support the Board’s finding that Whitson’s present disability is due to his work-connected injury.

During December, 1961 while engaged in his employment with appellant, E. I. DuPont De Nemours & Company, Whitson was injured by an explosion which caused hard pellets to puncture his abdominal wall. After brief periods of hospitalization he returned to work in the latter part of January, 1962. Subsequently he ceased working. He was examined by several physicians who were unable to locate a physical cause for the severe pain which radiated from his abdominal region. He was referred by his personal physician to Dr. George Doyle, a psychiatrist, for an examination. Dr. Doyle testified that Whitson experiences pain caused by the process of focusing his emotions in the part of his body where he was injured. He stated that this is a psychological condition known as conversion reaction and that it has completely disabled Whitson. He further testified:

“Well, I feel that the incident {explosion] was the focus that triggered off the whole chain of difficulties he’s experienced and certainly any kind of accident like this that can be harmful or is life threatening or is fearful in any way is often enough to trigger off this kind of reaction * *

Appellant contends that, while the quoted testimony supports the Board’s finding that the explosion caused Whitson to sustain his disability, the remainder of Dr. Doyle’s testimony so qualifies it as to render it of no probative value. This contention is predicated upon the fact that Dr. Doyle stated that his psychiatric diagnosis was based on the history given to him by Whit-son. This fact does not render his testimony inadmissible. The same result was reached in Bell Coal Co. v. Jackson, 298 Ky. 238, 182 S.W.2d 775, where a similar contention was made.

Upon cross-examination Dr. Doyle conceded that it was possible the presence of an ulcer could have been an additional factor in causing Whitson’s neurosis. There is no inconsistency between this possibility and his opinion that the December injury triggered Whitson’s conversion reaction. He further stated that final disposition of Whitson’s Workmen’s Compensation claim might make him more susceptible to effective treatment. In Holland v. Childers Coal Co., Ky., 384 S.W.2d 293 we pointed out that:

“ * * * if the mental illness is genuine the line of causation from the original injury to the existing disability is not broken by the fact that anxiety over compensation is a factor in it. ‡ * * if

Under familiar rules of administrative procedure it was for the Board to decide whether Whitson sustained the burden of persuading it that his disability was caused by the explosion and abdominal injury. Savage v. Claussner Hosiery Co., Ky., 379 S.W.2d 473. Upon our review of the record we cannot say that the Board’s finding is not adequately supported by the evidence.

The judgment is affirmed.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Henry SHEARIN et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 25, 1966.
    Robert F. Matthews, Atty. Gen., Frankfort, William A. Lamkin, Jr., Asst. Atty. Gen., John E. Smith, Lexington, for appellant.
    George R. Silliman, William M. Dish-man, Jr., Danville, for appellees.
   MONTGOMERY, Judge.

In this highway right of way condemnation proceeding the jury awarded appellees, Henry Shearin et al., $4,300 as damages. The Department of Highways appeals and urges that the after value of the land as fixed by the jury was not supported by the proof.

In its verdict the jury fixed the before value at $60,000 and the after value at $55,700. The lowest after value testified to by any witness was $57,700, $2,000 more than the jury finding. The judgment based upon such a verdict is erroneous. Commonwealth, Department of Highways v. Priest, Ky., 387 S.W.2d 302; Commonwealth, Department of Highways v. Wynn, Ky., 396 S.W.2d 798; Commonwealth, Department of Highways v. Thompson, Ky., 398 S.W.2d 496 (decided January 21, 1966); Commonwealth, Department of Highways v. Carson, Ky., 398 S.W.2d 706 (decided January 28, 1966).

Judgment reversed.


text:
    Harold YATES, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 25, 1966.

      Joe P. Tackett, Prestonsburg, for appellant.
    Robert Matthews, Atty. Gen., David Mur-rell, Asst. Atty. Gen., Frankfort, for ap-pellee.
   WADDILL, Commissioner.

Appellant, Harold Yates, was convicted of the illegal sale of alcoholic beverages (KRS 242.230), fined $100 and sentenced to confinement in the county jail for a period of 60 days. On this appeal he contends that the verdict is contrary to the evidence because the testimony of the only witness implicating him in the sale was so weakened on cross-examination that it had no probative value.

The prosecuting witness, an agent of the Alcoholic Beverage Control Board, testified that he purchased whiskey in Floyd County from appellant. He positively identified appellant as the person who sold him the whiskey. On cross-examination it was disclosed that, prior to the trial, he stated that Steve Smith rather than appellant had sold him the whiskey, but he explained that he had been mistaken as to the seller’s name.

His confusion with the name of the person who allegedly sold him the whiskey merely tended to affect the credibility of his testimony; we are unwilling to hold that it destroyed the value of his testimony as a matter of law. In these circumstances the question of the credibility of the witness’ testimony was exclusively the responsibility of the jury. Shepherd v. Commonwealth, Ky., 277 S.W.2d 42; Carroll v. Commonwealth, 306 Ky. 175, 206 S.W.2d 818.

Under this view of the case there is no merit in the contention for reversal of the conviction.

The judgment is affirmed.


author: GRIFFIN, Justice. SMITH, Justice

text:
    Venice E. HART, Petitioner, v. I.L. VAN ZANDT, Respondent.
    No. A-10513.
    Supreme Court of Texas.
    Nov. 3, 1965.
    Rehearing Denied March 2, 1966.

      Geary, Brice & Lewis, W. S. Barron, Jr., Dallas, for petitioner.
    Cantey, Hanger, Gooch, Cravens & Scarborough, William B. David, Fort Worth, for respondent.
   GRIFFIN, Justice.

This is a medical malpractice case. Venice E. Hart, as plaintiff, sought by this suit against Dr. I. L. Van Zandt, the defendant, to recover damages for various permanent physical injuries such as sensory losses to his leg and foot and malfunction of elimination organs allegedly resulting from an operation performed on his lower back by defendant and from various acts and omissions on the part of defendant in connection with the post-operative care and treatment of plaintiff. At the conclusion of plaintiff’s evidence, defendant filed a motion for peremptory instruction. Upon sustaining this motion the trial court instructed the jury to return a verdict for the defendant and the court entered judgment that plaintiff take nothing. From this judgment the plaintiff appealed to the Court of Civil Appeals where the trial court’s judgment was affirmed. 383 S.W.2d 627. Mr. Hart is the petitioner.

The numerous points of error in this appeal resolve themselves into two basic questions, to-wit:

(a) Whether the record contains any evidence which would support a jury finding or findings that Dr. Van Zandt was guilty of actionable negligence in his operation upon, care and treatment of Mr. Hart; and
(b) Whether the record contains any evidence which would support a jury finding or findings that any one or more of such alleged acts of negligence was a proximate cause of Mr. Hart’s injuries.

In determining negligence in a case such as this, which concerns the highly specialized art of treating disease, the court and jury must be dependent on expert testimony. There can be no other guide, and where want of skill and attention is not thus shown by expert evidence applied to the facts, there is no evidence of it proper to be submitted to the jury. The burden of proof is on the plaintiff to show that the injury was negligently caused by the defendant and it is not enough to show the injury together with the expert opinion that it might have occurred from the doctor’s negligence and from other causes not the fault of the doctor. Such evidence has no tendency to show that negligence did cause the injury. Ewing v. Goode, 78 F. 442, 444 (C.C.Ohio, 1897) ; Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779 (1949); Porter v. Puryear, 153 Tex. 82, 262 S.W.2d 933 (1954).

In determining the question of proximate cause, the general rule is “that proof of causation must be beyond a showing of a possibility that the injuries arose from the defendant’s negligence or lack of skill, since the jury will not be permitted to speculate as to the cause of the injury. Thus where the evidence most favorably to the plaintiff develops more than one equally probable cause, for one or more of which defendant is not responsible, the plaintiff has failed to sustain his burden of proof.” 13 A.L.R. 2d 22. But, as stated by this Court in Porter v. Puryear, supra, “[t]he vital inquiry in any case involving proximate cause is whether the negligent act set in motion a natural and unbroken chain of events that led directly and proximately to a reasonably foreseeable injury or result.” (262 S.W.2d 933, 936.)

In order that we may determine whether the plaintiff has discharged this burden with respect to the question of negligence and proximate cause, we must view and interpret the evidence in the light most favorable to the plaintiff, disregarding all evidence and the inferences therefrom favorable to the defendant. Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696 (1914); White v. White, 141 Tex. 328, 172 S.W.2d 295 (1943); Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561 (1952).

Mr. Hart first became a patient of Dr. Van Zandt in 1951, when Dr. Van Zandt diagnosed and treated Mr. Hart for a ruptured disc at the L5 SI level in a sub-acute condition. Mr. Hart responded to conservative treatment at this time and thereafter did not have much trouble with his back until September, 1959.

By way of explanation, the human spine consists of various segments of bone. In between the vertebral bones is cartilaginous material, commonly referred to as discs, which take part in the movement of the spine and perform the function of a shock absorber. Starting from the top of the spine downward, the first seven vertebrae are called cervical vertebrae; the next twelve, thoracic (or dorsal); the next five lumbar, followed by the sacrum, and then the coccyx — commonly called the tail bone. The medical profession has assigned numbers to these various vertebrae, and those of the lumbar region from top to bottom are numbered LI, L2, L3, L4 and L5. The segments of the sacrum are also numbered, and the first segment is SI, followed by S2 and S3. When reference is made, for instance, to the L4 L5 interspace, this means the space between the fourth and fifth lumbar segments. Likewise, the L5 SI intervertebral space refers to the space between the fifth lumbar and the first sacral segments which is occupied by the L5 SI disc.

On September 15th or 16th, 1959, Mr. Hart, while getting out of his car at his place of work, reached back into his car with a “sort of twisting motion” and a pain struck him in the lower back region like some one “had stuck a knife in” his back. Mr. Hart went to Dr. Van Zandt the same day about this condition and reported to him the symptoms. On examination the doctor observed that the movements of Mr. Hart’s lower back were markedly restricted and painful. On the same day, Dr. Van Zandt requested that Mr. Hart be admitted to Harris Hospital. At this time Mr. Hart was given conservative treatment which consisted of applying traction to his legs to relieve the pressure on the sacral nerves. Throughout this treatment it was apparent that Mr. Hart was having a revert pain down his left sciatic nerve (this nerve goes down into the hip and back of the left leg), which was caused by “involvement of the nerve roots” in Mr. Hart’s lower back. Other than the pain going down his left leg, Mr. Hart had no motor or sensory losses to any part of his body. X-rays taken at this time indicated a narrowing of the intervertebral disc space at the L5 SI level. Mr. Hart remained in Harris Hospital for eight to ten days at which time he was released but continued to receive treatment from the physical therapist at the doctor’s office. He appeared to be losing ground, and after an office visit on October 7, Dr. Van Zandt recommended that he re-enter Harris Hospital for tests and probable surgery.

Mr. Hart was re-admitted to the hospital on October 11, 1959. During the period from the date of his previous release from the hospital until the date of re-admission, Dr. Van Zandt had made two additional findings with regard to Mr. Hart’s condition: (1) The patient developed a tenderness at the lumbo-sacral area of his back (this is the point where the lumbar and sacral segments of the spine join, i. e., the L5 SI interspace), and (2) he developed a numbness on the top of his left foot with accompanying loss of motor power to the toe. At this time Mr. Hart was fifty-four (54) years old. Dr. Van Zandt testified that the nerve which feeds the muscles which control the toes could come from the L5 SI area of the spine.

Dr. Van Zandt’s first admitting diagnosis was “possible lumbro-sacral instability.” On October 12, Dr. Van Zandt’s progress report on Mr. Hart stated:

“ * * * myelogram unsuccessful this A.M. Dr. O’Bannon got a large hematome. Discogram at L4 L5 showed a good disc here. For disc and fusion at L5 SI levels tomorrow.”

The anaesthesia report of October 13, stated:

“ * * * Diagnosis, Pre-Operative. Probable ruptured disc L5 SI. Probable Lumbar-sacral instability.”

The operating room nurse’s report on October 13 stated:

“Pre-Operative Diagnosis. Probable ruptured disc lower back. Lumbosac-ral instability.”

Dr. O’Bannon, who was the radiologist consulted by Dr. Van Zandt in connection with the operation on Mr. Hart, testified that he examined and interpreted various x-rays of Mr. Hart’s back prior to the operation and the only thing of diagnostic significance which Dr. O’Bannon noted was the narrowing of the disc at the L5 SI level. Dr. O’Bannon could detect no abnormality whatever at the L4 L5 level. This finding was consistent with Dr. Van Zandt’s preoperative diagnosis of a ruptured disc at the L5 SI level.

With the pre-operative diagnosis pointing to trouble at the L5 SI level, Dr. Van Zandt, on October 13 proceeded to operate on Mr. Hart by making a five-inch lateral, or “traverse,” incision at the L4 L5 level of the ■lower back. During the course of a four-hour operation Dr. Van Zandt did not even examine the intervertebral space at the L5 SI level. At the L4 L5 interspace, Dr. Van Zandt removed the posterior section of the annulus fibrosis; the anterior section of the annulus fibrosis and the left and right walls of the disc were left in place. The doctor then attempted a bone fusion by taking three pieces of bone from the superior iliac crest and spine and placing them between the vertebral bodies between the L4 and L5 in-terspace. Immediately following surgery, Mr. Hart developed the following symptoms : (1) an inability to empty the bladder, and (2) numbness over the right side of the perinium (this is the crotch area), scrotum and penis. In other words, Mr. Hart had a lack of natural feeling in and around the above described areas.

The sensory feeling in the area wherein Mr. Hart is numb is supplied by sacral nerves. Beginning at approximately the first lumbar vertebra, the sacral nerves pass through the spinal column in what is called the cauda equina. At each lumbar vertebra the cauda equina is found to be located between the lamina of the vertebra and the intervertebral disc (the posterior section of the intervertebral disc would, therefore, be nearest to the cauda equina). The first, second, third, fourth and fifth sacral nerves pass through the spinal column in the cauda equina at the L4 L5 and the L5 SI level. At each intervertebral space following the first lumbar vertebra, a nerve root extends from the cauda equina to the right and left of the intervertebral disc.

A rupture of an intervertebral disc produces pressure against the nerve structure; either against the cauda equina or against the nerve roots that extend from the cauda equina at each vertebra interspace, i. e., the pressure may be against the nerve roots going out at each level or the pressure may be directly against the nerve roots which are still present inside the cauda equina. The pressure resulting from the ruptured disc is called “extra dura pressure” (“dura” is the outer covering of the nerve tissues).

Each intervertebral disc is composed of two parts: (1) the outer part, known as the annulus fibrosis, is a cartilaginious material that holds the disc in place, and (2) the inner part, known as the nucleus pul-posus, which is a soft substance that protrudes through the annulus fibrosis when the disc is ruptured. Extra dura pressure may be caused by the nucleus pulposus extruding through the annulus fibrosis and pressing against either the cauda equina or the nerve roots.

After leaving the hospital following Dr. Van Zandt’s operation, Mr. Hart had frequent office visits with the doctor. He was unable to void his bladder or bowels and had areas of numbness and lack of feeling. For the bladder condition Dr. Van Zandt referred Mr. Hart to Dr. Compere, a reputable urologist who performed a prostate operation in January, 1960, and relieved Mr. Hart’s bladder involvement to the point that Mr. Hart no longer wore a catheter for bladder relief. Dr. Van Zandt did not recommend additional surgery nor did he perform any additional myelograms or other diagnostic studies following the surgery other than to make x-ray pictures.

During December, 1959, Dr. Van Zandt sent Mr. Hart to a neurological specialist, Dr. William W. McKinney. On December 15 Dr. McKinney examined Mr. Hart and found that “the patient has some anesthesia over the right side of the perinium, the scrotum and the penis.” Dr. McKinney’s diagnosis was that the patient has suffered injury to the nerves which resulted in the patient’s condition; “it is my impression that this patient has had some trauma to the lower sacral nerves which has resulted in his bladder dysfunction.” Dr. Van Zandt directed Mr. Hart to Dr. McKinney without telling him that he had not operated at the L5 SI interspace — an omission which Dr. McKinney testified would have changed his procedure and treatment of Mr. Hart. He testified that if he had not been under the false impression that Dr. Van Zandt had removed a disc at the L5 SI level, he would have considered nerve root compression at the L5 SI level to be a strong possibility in this case. Dr. McKinney stated that a fusion, or protusion, at either the L4 L5 or L5 SI interspace could cause pressure to be exerted on the nerve roots with resulting damage thereto. He further stated that if a central extrusion of the disc over the L5 SI interspace is allowed to exert continuing pressure on the cauda equina and nerve roots and is not removed within a relatively short period, permanent and irreparable injury will result; and that nerve root involvement was responsible for Mr. Hart’s condition with regard to the numbness of certain areas of his body. Dr. McKinney testified that as soon as the diagnosis of the ruptured disc at L5 SI was made, the disc should have been removed. He further testified that it was not his regular procedure to allow a centrally extruded disc to remain with the symptoms that were existing in Mr. Hart’s case.

In May of 1960, Mr. Hart decided to leave Dr. Van Zandt and go to another doctor to try to obtain some relief. He went to Dr. Frederick C. Rehfeldt, a specialist in neurological surgery. On May 10, 1960, Dr. Rehfeldt began treating Mr. Hart. Hospital records were put in evidence showing the findings of a myelogram study requested by Dr. Rehfeldt on June 12,1960. The conclusions of the myelogram tests were:

“1. Large irregular obstructing space occupying lesion predominantly to the right of the level of the intervertebral disc between L4 L5 as shown by myelo-gram.
2. No demonstrable abnormality of the lumbar spinal canal above the level of L4.
3. Slight residual iodized oil in the spinal canal distally from previous mye-logram.
4. Post-operative changes involving L4 L5 as noted above.
5. Narrowing of discs between L4 L5 and L5 SI.”

The records of Dr. Rehfeldt further showed that the numbness and lack of natural feeling suffered by Mr. Hart were due to nerve root compression. On June 27, 1960, Dr. Rehfeldt performed surgery on Mr. Hart. During the course of the operation Dr. Rehfeldt found that the nerve roots were compressed at the L4 LS level. He also found that the intervertebral disc at the L5 SI level was ruptured and was compressing the dura sac. Dr. Rehfeldt then removed the discs at L4 L5 and at L5 SI which effected “decompression of L4 LS bilaterally and LS SI bilaterally.” A bar of matter was found extruding at L4 LS, pressing against the nerve root that comes off at this interspace. Dr. Rehfeldt said that if nerve root pressure was allowed to exist for a year or two, even though subsequent surgery removed the pressure on the nerve roots, there could be substantial damage to the nerves which would not heal; and although Mr. Hart showed some signs of improvement following the decompression of the nerves at L4 L5 and L5 SI, the doctor could not detect any differences in Mr. Hart’s sensory losses. Dr. Rehfeldt testified that both the L4 LS and L5 SI areas should be looked at when a patient has the symptoms of Mr. Hart, and that if he had a patient with a previous history of trouble at the L5 SI level, he would under normal procedure expose the LS SI area for review during surgery. He further stated that if a man is unsuccessfully operated on and there is nerve root pressure, following the operation which is allowed to exist for a year or two, there could be substantial damage done to the nerve roots which a subsequent operation would not cure. Essentially, Mr. Hart’s condition has remained unchanged since the date of Dr. Van Zandt’s operation up until the trial of this case.

Dr. Charles M. Hawes, a Doctor of Osteopathy (whose qualifications as a medical witness will be subsequently examined in this opinion), testified by deposition that in his opinion a doctor in the exercise of ordinary skill and care as employed by others in the medical profession in the Dallas-Fort Worth area, would have made an incision so as to expose the LS SI interspace during the course of an operation such as was performed by Dr. Van Zandt. He further testified that it was customary to explore both the L4 LS and the L5 SI interspace. The post-operative conditions of Mr. Hart were also outlined to Dr. Hawes, and in answer to hypothetical questions he stated that in his opinion, a doctor in the exercise of ordinary care and skill, when confronted with the symptoms of Mr. Hart immediately following the operation should have done exactly what was later done, viz.: to perform a myelogram and surgery. He further testified that, assuming an operation at the L4 L5 level but a diagnosis of a ruptured disc at the L5 SI level, it would not be in the exercise of ordinary skill and care in the Dallas-Fort Worth area to fail to go in and remove the disc at the LS SI level. To the same effect he testified that under the facts of Mr. Hart’s case a laminectomy should have been performed on the patient for the removal of the L5 SI disc at the time of Dr. Van Zandt’s operation.

It was Dr. Hawes’ opinion that Mr. Hart had a permanent involvement of the sacral nerves, and, based on reasonable medical probability, a delay in further surgery on a patient suffering from Mr. Hart’s symptoms immediately following the October, 1959 operation would cause or result in permanent damage to the sacral nerves. He further stated that Mr. Hart’s condition following the October, 1959 operation was caused by extra dural pressure at the L4 L5 and at the L5 SI levels.

The petitioner, in his Fourth Amended Original Petition, has alleged that twelve various acts and omissions on the part of Dr. Van Zandt constituted actionable negligence proximately causing his injuries. Included therein are the following allegations :

******
“(g) In failing to explore other vertebral bodies and intervertebral discs during surgery at the L-4, L-5 level.
(h) In failing to perform surgery on and remove a herniated, ruptured, or otherwise diseased interverte-bral disc at the L-5, S-l level.
s}c ifc ‡ ‡ # *
(j) In failing to perform additional surgery after the first operation to decompress the pressure which was then being exerted to the nerves and/or nerve roots in Plaintiffs back.”

Although the writer of this opinion, after a detailed study of the record, would affirm the Court of Civil Appeals’ judgment, the Court has directed the cause be written that fact issues of negligence and proximate cause are raised with regard to the above quoted allegations.

The Court is of the opinion that it would be unrealistic to hold that the above described testimony does not present a question of fact upon which reasonable minds could differ. It is not for this Court to decide whether or not Dr. Van Zandt’s failure to explore other vertebral bodies during his operation, failure to perform surgery at the L5 SI level, or his failure to perform additional surgery after the initial operation was in fact negligence proximately causing Mr. Hart’s injuries. Rather it is for this Court to decide whether or not the evidence in the record presents facts which must be passed upon by the jury. We hold that issues of negligence and causation have been raised that can only be resolved by the trier of fact, and that it was error for the courts below to sustain respondent’s motion for peremptory instruction.

Since this case is to be remanded for a new trial, it is necessary to pass on additional matters properly before the Court.

Respondent’s motion for peremptory instruction contained twenty-six numbered paragraphs. In sustaining this motion, the trial court held it “to be good in all its features.” Except for paragraphs 10, 11 and 19 the entire motion resolved into the questions of negligence and proximate cause heretofore decided. Paragraphs 10, 11 and 19 allege that petitioner failed to prove the essential elements of his cause of action “by a doctor of the same school of practice as defendant.” All of the doctors who testified, with the exception of Dr. Charles M. Hawes, who is an osteopath, hold M. D. degrees, so it is apparent that the objections in paragraphs 10, 11 and 19 are leveled at the testimony of Dr. Hawes.

In Bowles v. Bourdon, supra, 219 S. W.2d, at page 782, this Court announced the general rule with respect to the type of evidence necessary to establish a cause of action in a medical malpractice case in the following language:

“It is definitely settled with us that a patient has no cause of action against his doctor for malpractice, either in diagnosis or recognized treatment, unless he proves by a doctor of the same school of practice as the defendant: (1) that the diagnosis or treatment complained of was such as to constitute negligence and (2) that it was a proximate cause of the patient’s injuries.” (Emphasis added.)

In Porter v. Puryear, supra, 262 S.W.2d at page 936, this Court recognized that where the particular subject of inquiry is common to and equally recognized and developed in all fields of practice, a qualified surgeon of any recognized school of medicine may give evidence on the matter under inquiry.

Dr. L. B. Hart, who was qualified as a medical doctor and as an osteopathic doctor, testified that the subject of a laminectomy for back exploration and removal of a ruptured disc was equally recognized in both schools of medicine, and that it was equally developed in both schools of practice, because both schools use the same text books, have available the same information and read the same literature on the subject of surgical laminectomy. We therefore hold that as to the subject of inquiry in this case, the testimony of Dr. Hawes was properly admitted into evidence by the trial court.

By Points of Error Ten and Eleven, petitioner assigns error to the trial court in excluding the deposition testimony of Michael Scott, M. D. For purposes of his bill of exceptions the petitioner obtained the trial court’s ruling that the respondent’s objections to this evidence were sustained to each question and answer, severally considered.

Dr. Scott holds an M. D. degree and is licensed to practice neurosurgery in the State of Pennsylvania. It is apparent that both Dr. Scott and Dr. Van Zandt are of the same school of practice, that is, they are both licensed to practice medicine with an M. D. degree. Mr. Hart, in December of 1960, went to see Dr. Scott in an effort to obtain some relief from his condition. At that time Dr. Scott was given a history of Mr. Hart’s case and made an examination of the patient. Dr. Scott also had some correspondence with Dr. Rehfeldt and Dr. Van Zandt with regard to Mr. Hart’s case history. In Dr. Scott’s opinion, “the involvement of the nerve roots, the impairment of sensation, the Impairment in the function of involvement of the bladder was secondary to some involvement of the nerve roots which occurred during or immediately following the operation of October 13, 1959.”

We are of the opinion that Dr. Scott was in a position to render an expert opinion with regard to the cause or causes of Mr. Hart’s condition. We therefore hold that it was error for the trial court to exclude the deposition of Dr. Scott.

The judgments of the Court of Civil Appeals and the trial court are reversed and the case is remanded for new trial in accordance with this opinion.

ON MOTION FOR REHEARING

SMITH, Justice

(dissenting).

I respectfully dissent. When the Court’s original opinion was written, I assumed that the facts set out in the opinion were controlling and were directly related to the issues involved. However, upon reading the motion for rehearing and upon a closer examination of the record, I find that I cannot agree with the result attained by the Court. This Court, in my opinion, has unwittingly permitted the petitioner the advantage of another trial because of its acceptance of petitioner’s inaccurate presentation of evidence elicited from expert witnesses based upon hypothetical questions which failed to properly embrace facts established or facts reasonably inferable from the evidence. I disagree with the petitioner’s contention that the respondent has overlooked settled principles of law such as the rule that a party in propounding hypothetical questions is entitled to a witness’ opinion upon any combination of facts inferable from the proof.

This record, in my opinion, is completely void of elements of proof which are essential to a recovery by the plaintiff. The defendant contends, and my examination of the record confirms, that there is no evidence that the defendant, at the time of performance of the operation of October 13, 1959, should have explored the L5 SI disc. Evidence of what is usually or customarily done is not expert evidence of what should have been done by the defendant prior to, during, and subsequent to the surgical operation on the plaintiff. The very evidence of what is usual and customary under the circumstances, such as confronted the defendant, implies that there are cases when it is proper not to conduct exploration at a different level. The Court after correctly announcing the rule that “[in] determining negligence in a case such as this, which concerns the highly specialized art of treating disease, the court and jury must be dependent on expert testi-timony,” promptly proceeded to ignore the rule in the above particular and in the following respects:

(1) There is no expert evidence that had the defendant explored the L5 SI disc during surgery at the L4 L5 level he would have discovered a disc requiring operative correction or removal. Not once did an expert witness testify that in his opinion a disc requiring surgical correction or removal existed at L5 SI when defendant performed surgery on October 13, 1959. Without expert evidence of that kind it is impossible to reasonably conclude that the failure of defendant to explore at L5 SI at that time caused any of the problems of which plaintiff complains. At best, the presurgical diagnoses were inconclusive. Defendant diagnosed “possible” lumbo sacral, disc and “possible” lumbo sacral instability. The diagnosis made by Dr. O’Bannon before surgery was of a suggestion of a rupture of the disc at L4 L5. Such evidence is a far cry from “expert evidence applied to the facts” that exploration of the L5 SI disc would have revealed it to be in such a condition as to require its removal on October 13, 1959.

(2) There is no expert evidence that, under the particular facts confronting the defendant, the L5 SI disc should have been surgically removed on October 13, 1959. Dr. Hawes testified that even if a pre-surgical diagonsis or rupture of the L5 SI disc is made, nevertheless, “it is not unusual to remove a ruptured disc at L4 and L5 prior to looking at the other area,” and went on to say that he could not give an opinion as to whether or not the doctor should have then looked at the other area unless he knew and took into consideration “the entity that was found at the time of surgery, the condition of the patient and other circumstances which have a great bearing.” The witness was never asked to take those factors into consideration and then give an opinion. Obviously, without evidence that the defendant should have explored the L5 SI area after finishing his work at L4 L5, there is no basis for a conclusion that he then should have performed surgery at L5 SI. I decline to agree to the Court’s holding that there is evidence that the defendant should have performed surgery to remove the L5 SI disc on October 13, 1959. The effect of the holding is to allow the jury to draw its own medical conclusions from the evidence, despite the fact that the only expert testimony is that no acceptable opinion can be expressed on the subject unless all of the circumstances of defendant’s surgery are known and taken into consideration, and even though no expert witness ever expressed an .opinion on the subject after taking the facts and circumstances of this particular case into consideration.

(3)There is no evidence that removal of or any kind of surgical procedure on the L5 SI disc on October 13, 1959, would have corrected or prevented the problems of which plaintiff complains. Without evidence of that kind there is no way that a jury could reasonably conclude that the failure of defendant to explore or perform surgery at L5 SI on October 13, 1959, in any way caused plaintiff’s complaints. True, there is evidence that nerve involvement at L5 SI could cause plaintiff’s symptoms. But the evidence shows that it is equally possible that nerve involvement which in this case was shown to exist at L4 L5 could likewise cause the same symptoms. Under the record in this case, there are any number of possibilities which would explain plaintiff’s symptoms. No one of them is shown by expert evidence to be a probability. Furthermore, even if it is assumed, arguendo that plaintiff’s complaints were caused by L5 SI involvement, standing alone, there is no expert evidence that removal of the L5 SI disc on October 13, 1959, would have corrected the situation. For all that appears from the record, the situation may well have been irreversible by October 13, 1959. In that case, failure of the defendant to remove the L5 SI disc at that time could not possibly be the cause of plaintiff’s complaints. Surely the Court does not intend to hold that there is evidence that it was not irreversible at that point in time. To so hold would be saying that expert evidence is not needed on that subject. Is it possible that the Court is holding that no evidence of any kind is needed?

There is no expert evidence that defendant, under the particular circumstances confronting him, should have taken further steps after October 13, 1959, and before June, 1960. There is some testimony in the abstract, and which was not given in answer to questions taking into consideration all of the relevant facts and circumstances confronting the defendant, that a doctor should have performed further evaluation with a myelogram and that “other care” should have been instituted and that “possible exploration” may have been in order. That testimony does not meet the test of “expert evidence applied to the facts” laid down by this Court; and, even if it did, it would be meaningless insofar as defendant’s conduct is concerned, because: (a) the undisputed evidence is that another myelo-gram would not have revealed any information not already known to defendant and which would be diagnostic of a rupture of the L5 SI disc, (b) defendant did take other steps, such as taking X-rays and sending plaintiff to other specialists, and there is no evidence of any “other care” not taken by the defendant which should have been taken, and (c) testimony that “possible exploration” may have been in order is hardly any evidence that a doctor, confronted with the particular facts and circumstances confronting defendant, should have in the exercise of care performed further surgery at the L5 SI level. The mere fact that the witnesses said that re-evaluation by myelo-gram was indicated itself establishes without dispute that a number of things would have to be taken into consideration and determined before deciding if further surgery should be performed; otherwise, why bother with a myelogram?

Assuming that further steps, such as myelogram and/or surgery should have been taken by the defendant after October 13, 1959, and before June, 1960, there is not the slightest expert evidence that any of the problems of which plaintiff complains probably would have been relieved or prevented by such further steps. As to the myelogram, the evidence affirmatively shows that a myelogram test would have revealed nothing new. As to further steps generally, including possible surgery at the L5 SI level, there is no evidence as to a point in time when such steps should have been taken, nor is there any evidence as to a point in time when such further steps could have been taken in such a manner as to prevent the problems of which plaintiff complains.

Furthermore, there is no evidence that the defendant’s failure to do something after October 13, 1959, caused the problems of which the plaintiff complains. As to this, I am afraid the Court’s opinion will allow a jury, without benefit of expert evidence, to arbitrarily select a time or date when the defendant should have taken further steps, and to further decide, without expert evidence, that proper action by the defendant at the arbitrarily selected time would have corrected or prevented plaintiff’s complaints.

The defendant’s motion for instructed verdict was properly granted by the trial court. The evidence only raises a surmise or suspicion of the existence of facts sufficient to support a finding of negligence and proximate cause. The plaintiff’s approach, approved by the Court, is contrary to the sound rule that:

“ * * * if an inference consistent with the existence of a fact in issue is but equally as valid as an inference of its nonexistence, then the jury may not determine the question. * * * There must be evidence to support the conclusion that the inference of the particular fact is the more reasonable.” Texas Pacific Fidelity & Surety Co. v. Hall, 101 S.W.2d 1050 (Tex.Civ.App.1937, err. dism.).

In Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 785, 13 A.L.R.2d 1, (1949), this Court said that it is not enough to show the injury, together with an expert opinion that an injury might have occurred from negligence and many other causes, because such evidence has no tendency to show that negligence did cause the injury. In Bowles, we went on to say that fact issues in a case such as this are raised only by proof of probability and not by proof of possibility. In so holding we quoted from an Iowa decision wherein it was said:

“Verdicts must rest upon reasonable certainty of proof. Where the proof discloses that a given result may have occurred by reason of more than one proximate cause, and the jury can do no more than guess or speculate as to which was, in fact, the efficient cause, the submission of such choice to the jury has been consistently condemned by this court and by other courts.”

Two or more evidentiary factors suggesting a possibility that a fact exists will not suffice. The statements of facts, consisting of 446 pages, reflects, at most, a possibility that the defendant was negligent, and that negligence of the defendant was a proximate cause of the plaintiff’s injuries and damages.

The trial court correctly granted the defendant’s motion for instructed verdict. I make this assertion without fear of successful contradiction. The plaintiff has so far prevailed because he has convinced the Court that there is expert evidence in this case, and that defendant’s argument is based upon inconsistencies in the testimony of some of the doctors rather than upon an absence of expert evidence. I interpret the defendant’s position to be that none of the evidence when reasonably interpreted in context justifies a conclusion that material fact issues exist. Again, I say that the plaintiff’s basic premise is unsound, and this basic premise has led the Court away from the essential factor necessary to convict the defendant of malpractice. The plaintiff’s so-called expert witnesses have based their testimony on the • premise of what is usually and customarily done, and not upon the facts of this particular case. The entire testimony of each witness must be considered and, if when all of it is taken into consideration, it is apparent that the witness is not saying that under the particular facts of the case, the operating doctor should have done certain things, the testimony of that witness is not expert evidence (applied to the facts) that he should have done those things. Therefore, the testimony of Drs. Hawes and Rehfeldt that exploration customarily or usually is conducted at L5 SI following surgery at L4 L5, cannot possibly have any probative force where the expert evidence must be applied to the facts. This is especially true when such testimony is considered in the light of the doctors’ further testimony that no intelligent opinion can be formulated as to what should have been done in any particular case unless a number of things are taken into consideration. These things were not taken into consideration by the doctors. There appears in this case nothing more than isolated questions and answers completely out of context. This record affords no basis or sound reason for invoking the well recognized rule that in deciding whether a directed verdict is proper, which is, the Court must accept the evidence most favorable to the plaintiff as true. The doctors’ evidence relied upon by the plaintiff, clearly shows that they could formulate and state an intelligent opinion, because they were not requested to take into consideration the factors said by them to be essential to a meaningful answer so far as the issue involved was concerned.

The testimony upon which the plaintiff relies is not in answer to proper hypothetical questions relating to any significant combination of facts. The attempt to convict the defendant of malpractice in performing surgery upon the plaintiff is based entirely upon testimony of a general and abstract nature. The following testimony is typical of the evidence relied upon by the plaintiff as evidence that the defendant should have explored the LS SI level following his surgery at L4 LS. It should be readily seen that such testimony does not meet the test. None of the controlling facts of the defendant’s surgery are embraced within the questions, and, of course, such facts are not embraced in the answers. This is true in regard to all attempts by the plaintiff to establish negligence on the part of the defendant.

Dr. Hawes testified:

“Q. Doctor, do you have an opinion as to whether or not the doctor would be exercising the ordinary skill and care employed by others of the medical profession in the Dallas-Fort Worth area by scheduling a man for surgery at the L5-S1 level and then performing an operation on the L4-L5 level, without exploration of the L5-S1 level ?
“A. I can only say this would depend on the entity that was found at the time of surgery, the condition of the patient and other circumstances which have a great bearing. I couldn’t say absolutely.
“Q. I wasn’t asking you to assume any other facts, Doctor. I want you to please assume the facts that you have been given, [which include none of the facts said by the doctor to be essential for him to form an intelligent opinion]. State whether or not you have an opinion as to whether or not a doctor, under these facts, would be exercising the ordinary care and skill employed by others of the medical profession in the Dallas-Fort Worth area by scheduling surgery at L5-S1, and then performing surgery at L4-L5, without any inspection or visualization of the LS-S1 disc?
“A. Yes, I have an opinion..
“Q. What is your opinion?
“A. It’s customary to explore both L4-L5 and L5-S1.”

Dr. Hawes made it clear that unless he took the facts of the defendant’s surgery into consideration he could not arrive at and state an intelligent opinion. Dr. Hawes repeatedly made it clear that he was unable to formulate an intelligent opinion as to what should have been done by the defendant without knowing and taking into consideration the facts of the defendant’s surgery. Dr. Hawes could not formulate an intelligent opinion simply because he said that he had not been furnished with enough facts. The hypothetical questions propounded to him did not include facts relevant to the formation of an opinion.

In Shuffield v. Taylor, 125 Tex. 601, 83 S.W.2d 955 (1935), this Court announced the rule in regard to the use of hypothetical questions;

“A hypothetical question should be so framed as to recite all the facts in evidence relevant to the formation of an opinion, and then, assuming the facts to be true, the witness should be asked, if able to form an opinion therefrom, to state such opinion.
“A question is not necessarily improper because it includes only a part of the facts in evidence, provided it embraces enough of them to enable the witness to formulate an intelligent opinion.” See Topletz v. Thompson, 342 S.W.2d 151, (Tex.Civ.App.1960, no wr. hist.).

What I have said in regard to the testimony of Dr. Hawes is equally true of the testimony of Dr. Rehfeldt.

Dr. Rehfeldt, it is seen, testified that his practice is to explore L5 SI after performing surgery at L4 L5, but he also testified that “if we find a very good lesion at 4 and 5, we sometimes will not look at 5 and 1.” Dr. Rehfeldt was never asked to take into consideration the type of lesion found by the defendant at L4 L5 and then state what, in his opinion the defendant should have done. Remember, this burden was upon the plaintiff. In fact the two doctors were never asked to take into consideration any of the other facts of the defendant’s surgery. The doctors were never asked a question which embraced enough facts to enable them to formulate and state an intelligent opinion.

The plaintiff attempts to bolster his case by a comparatively lengthy argument that a jury would be entitled to disregard the testimony of the defendant that he found 90 per cent of the disc material extruded at L4 L5, as good lesion, because Dr. Van Zandt was a party defendant to the suit and an interested party. This is just some more of the mist created to help strengthen the untenable position of the plaintiff. I doubt that a jury would have been warranted in disregarding the defendant’s clear and un-impeached testimony. Nor do I believe a jury would be properly performing its duty by disregarding the defendant’s post, operation report of October 13, 1959, that in making the operation at L4 L5, he found and removed “a large extruded disc * * * under the L-4 — 5 nerve root.”

However, be that as it may, even if the statement were of a kind which could be disregarded by the trier of the facts, the plaintiff is right where he started, because once disregarded there is still no evidence of a vital factor which had to be taken into consideration by Doctors Hawes and Reh-feldt in arriving at an intelligent opinion as to whether or not the defendant should have explored L5 SI after performing surgery at L4 L5. Do not forget that both Hawes and Rehfeldt testified that “it would depend on the entity that was found at the time of surgery.” Surely, the jury would not be entitled to reject the testimony given by the defendant as to the type of entity found and then substitute, without any support in the evidence, its own judgment as to the type of lesion which might have been found. Surely, a jury should not be allowed to compound the error by assuming that had the witness taken into consideration whatever type of entity the jury arbitrarily might have found, the witness then would have said that the defendant should have explored LS S1. In Texas & P. Ry. Co. v. Brown, 142 Tex. 385, 181 S.W.2d 68 (1944), this Court said:

“We recognize the rule that a jury may accept or reject portions of the testimony of a witness, Austin Fire Ins. Co. v. Adams-Childers Co., Tex.Com.App., 246 S.W. 365; still, there must be other facts and circumstances, or the testimony of other witnesses in evidence, to supply that which has been rejected * * * **

Thus far my attention has been primarily directed to the question of whether the hypothetical testimony of plaintiffs witnesses constitutes evidence of negligence. I think that clearly it does not; but, assuming that such evidence does establish the fact that the defendant should have explored further, there is still no evidence, beyond a mere possibility, that had the defendant explored L5 SI he would have found anything. Assuming one step further, that he did find a disc requiring surgical removal, there is no evidence that such removal would have prevented plaintiff’s post-operative complaints. It is just as possible that the sacral nerves were injured in a number of ways: by involvement in the extension at L4 L5, or at L5 S1; by traumatic injury of some kind during the myelo-gram procedure; by surgical bruising; by scar tissue; or by a combination of such factors. There is no evidence, expert or otherwise, which shows a probability that the defendant’s failure to explore L5 SI or to remove a hypothetical injured disc at that level resulted in plaintiff’s disabilities. I must conclude, from my examination of the record, that there is no evidence that defendant was negligent in his operative technique or procedure and there is no evidence that assuming negligence, it proximately caused plaintiff’s complaints.

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

      . At another point Dr. Hawes again made it clear that he was unable to formulate an intelligent opinion as to what should have been done by Dr. Van Zandt without knowing and taking into consideration the facts of Dr. Van Zandt’s surgery, saying:
      “Q. You mentioned that it is considered proper in your profession to look at the L4-L5 level and at the L5-S1. Assuming that you found a rather severely ruptured disc in the L4 and L5, and removed that disc to the best of your ability, then you deemed it to the patient’s disadvantage to attempt further exploration in that operation, would you cease your work at the L4-L5 level?
      “A. Yes.”
      and again:
      “Q. Do you regard it in your practice that many times you are called upon with a judgment decision after you have started an operative procedure?
      “A. Many times.
      “Q. That’s usual in most operations, is it not, Doctor?
      “A. Yes.
      “Q. Regardless of how clearly you outline your course of procedure prior to the operation, there are many times that you have to change that course of procedure during the actual operation, is there not?
      “A. That is correct.”

      . Further confirming that Dr. Kehfeldt was of the same mind as Dr. Hawes that the facts of each case must be considered before an intelligent opinion can be formed as to what should have been done is his further testimony, as S.F. 190:
      “Q. Yes, sir. Now you testified that it was good practice, when exploring at the L4 and L5, to, also, explore the L5-S1?
      “A. Yes.
      “Q. Would that depend on the patient, the doctor’s judgment and the length and duration of the operation, as to how far you would go in an operation?
      “A. Yes, sir, depending upon what the surgeon’s objective was.
      “Q. If the surgeon felt in his mind that he had found the root of the trouble he was looking for, would he necessarily go further or would he stop when he thought he had covered the point that he was searching for?
      “A. Usually a surgeon has an objective when he makes a procedure and when he feels he’s reached that objective, he has reason to stop.”


author: MORRISON, Judge.

text:
    Maria Guadalupe AGUIRRE et al., Appellant, v. The STATE of Texas, Appellee.
    No. 39261.
    Court of Criminal Appeals of Texas.
    March 9, 1966.
    Joseph J. Rey, El Paso, for appellant.

      W. Barton Boling, Dist. Atty., Jack N. Ferguson, Asst. Dist. Atty., El Paso, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

This is an appeal from a judgment forfeiting an appearance bond in the sum of $400.00.

No statement of facts accompanies the record. The transcript was filed in this Court on November 24, 1965, and appellant’s brief was filed on January 18, 1966. Rule 414, Texas Rules of Civil Procedure requires that appellant’s brief be filed in appellate court within 30 days after the filing of the transcript.

This Court is controlled by the Rules of Civil Procedure in bond forfeiture cases. Article 866, Vernon’s Ann.C.C.P., Sherrill v. State, Tex.Cr.App., 375 S.W.2d 721; Hebert v. State, Tex.Cr.App., 255 S.W.2d 201; and Gaither v. State, 156 Tex.Cr.R. 503, 244 S.W.2d 209, are authority for dismissing this appeal.

The appeal is dismissed.


author: DICE, Commissioner.

text:
    Leon RILEY, Appellant, v. The STATE of Texas, Appellee.
    No. 38622.
    Court of Criminal Appeals of Texas.
    Feb. 9, 1966.
    Rehearing Denied March 23, 1966.

      Marvin Foster, Jr., Corpus Christi, for appellant.
    Franklin L. Smith, County Atty., Corpus Christi, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The record having been perfected, the opinion dismissing the appeal is withdrawn and the appeal is reinstated.

The conviction is for negligent homicide in the second degree; the punishment, eighteen months in jail.

The complaint and information charged that while engaged in performance of an unlawful act and operating a motor vehicle on a public street in an urban district at a greater rate of speed than thirty miles per hour, the appellant did, as a result of said unlawful act, by negligence and carelessness cause the death of Nicanor Velasquez by causing his (appellant’s) automobile to run into and collide with the said Velasquez, thereby jarring, crushing, bruising, and causing injuries to the said Velasquez, from which injuries the said Velasquez died.

Appellant moved to quash the information on the ground that it did not apprize him of what act of negligence he was charged with having committed that caused the death of the deceased.

In overruling the motion to quash, the court did not err. Recently, in Dunn v. State, Tex.Cr.App., 390 S.W.2d 775, an indictment containing similar allegations was held sufficient to charge an offense, as against the contention that it failed to allege the facts constituting negligence. In overruling such contention in the case, it was pointed out that the negligent act was the unlawful act alleged in the indictment.

It was shown by stipulation of the parties and evidence introduced that on the date alleged the appellant, while driving his automobile upon a public street in the city of Corpus Christi, struck and killed the deceased, who was a pedestrian in the street. The place of the collision was shown to be in an urban district of the city.

One witness to the accident estimated the speed of appellant’s automobile just before the collision to have been between sixty and seventy miles per hour.

Officer Floyd M. Bieniek, who went to the scene and investigated the accident, testified that appellant’s automobile made one hundred twenty-two feet of skid marks which began fifty-five feet from the point of impact. Testifying as an expert, the officer expressed his opinion that appellant’s vehicle was traveling between forty-five and fifty miles per hour at the point where the skid marks began. He further testified, without objection, that in his opinion the speed of appellant’s automobile was the direct cause of the accident and that the collision would not have occurred if the vehicle had been traveling thirty miles per hour.

Appellant did not testify or offer any evidence other than joining in a stipulation with reference to the cause of death of the deceased.

We first overrule appellant’s contention that the court erred in overruling his motion for an instructed verdict of not guilty and permitting the state to reopen its case after both sides had rested following presentment of the state’s evidence in chief.

The record reflects that after appellant moved for an instructed verdict on the ground that the state had failed to prove that the homicide was the result of his negligence, the state was permitted to reopen the case and recall Officer Bieniek to the stand, who testified further with reference to his opinion that the speed of appellant’s automobile was the cause of the accident and that it would not have occurred if the vehicle had been traveling thirty miles per hour.

Art. 643, V.A.C.C.P., which was in force at the time the case was tried, authorized the trial court to allow testimony to be introduced at any time before argument in the case, if it appeared to be necessary to the due administration of justice. It has been held that under this statute the matter of permitting a party to reopen his case is one of discretion of the trial court. Bernadett v. State, 166 Tex.Cr.R. 621, 317 S.W.2d 747; Rodriguez v. State, 171 Tex. Cr.R. 476, 350 S.W.2d 854. We find no abuse of discretion.

By bill of exception #2, appellant complains that he was forced to select a jury in the case from a jury list drawn before he had announced ready for trial and not in compliance with Articles 627 and 628, V.A.C.C.P., which provide that when the parties have announced ready for trial in a case less than capital, the clerk shall write the names of each regular juror for the week on separate slips of paper and, after placing the slips in a box, draw from the box in the presence of the court the names of the jurors and write the names, as drawn, upon two slips of paper and deliver one slip to state’s counsel and the other to the defendant or his attorney.

An examination of the record does not support appellant’s contention, as the record reflects that after the state and the appellant announced ready for trial — but before the jury panel was examined, the trial court directed the clerk to put all names of the jurors in a box and re-draw them. This was accordingly done. The bill is overruled.

We have examined the jury argument of state’s counsel, of which appellant complains, and find that in each instance the careful trial judge sustained appellant’s objection thereto and instructed the jury not to consider the same. In no instance did appellant move for a mistrial.

Apparently, appellant was satisfied with the court’s ruling and is in no position to complain. Bearden v. State, 169 Tex.Cr.R. 437, 334 S.W.2d 447; Baker v. State, Tex.Cr.App., 368 S.W.2d 627.

We do not agree that the argument, including the statement: “I ask that you look at the face of the mustachioed killer,” was so obviously prejudicial that its effect upon the jury could not be cured by the court’s instruction. Nor is appellant in position to complain of counsel’s reference to him as a member of the Negro race, in the absence of an objection being made at the trial.

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

Opinion approved by the court.


author: McDONALD, Presiding Judge.

text:
    Fred Franklin DAVIDSON, Appellant, v. The STATE of Texas, Appellee.
    No. 38870.
    Court of Criminal Appeals of Texas.
    Dec. 15, 1965.
    Rehearing Denied Feb. 2, 1966.
    William Lane, Jr., Marshall, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is theft of property over the value of $50.00; the punishment, seven years confinement in the Texas Department of Corrections.

Appellant’s confession was introduced, which recited that he went to the Lewis Motor Company and tried out an automobile, a 1962 Ford Galaxie. After the salesman left, appellant drove the car away and kept it several months. No one gave him permission to take the car.

Appellant testified that after being incarcerated, he tried to escape twice, but later became religious. He admitted stealing the car and making a statement, relating that he went to the District Attorney’s office and wanted to give a statement. He had asked if Texas had an habitual criminal statute, and stated that he had been in penitentiaries three times, one of which was for automobile theft; that he robbed someone in 1953 and wrote some checks in California. He testified that he had a sign painted on the automobile and that he put fictitious license plates on the car.

Appellant contends that he did not have an attorney at the time he made the confession. There is no showing that he requested an attorney, and this case does not come under Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. See McDonald v. State, Tex.Cr.App., 395 S.W.2d 48, and the authorities therein cited.

Appellant also contends that the trial court erred in overruling his motion for continuance because his court appointed attorneys did not have time to prepare for trial. The docket entry, which can be considered by this Court, because it was entered in the minutes of the trial court, recites that three attorneys were appointed on the 12th day of June, 1964, and that a plea of guilty before the jury was made January 25, 1965. Counsel were appointed over seven months prior to trial, and they were officially notified of their appointment over four months prior thereto.

The motion for continuance was not signed and sworn to by appellant and cannot be considered. Parsons v. State, 160 Tex.Cr.R. 387, 271 S.W.2d 643; Lillard v. State, 166 Tex.Cr.R. 237, 312 S.W.2d 517.

We find the evidence sufficient to sustain the verdict.

No reversible error appearing, the judgment is affirmed.


text:
    Ellis WEAVER, Appellant, v. The STATE of Texas, Appellee.
    No. 38328.
    Court of Criminal Appeals of Texas.
    Jan. 26, 1966.
    Rehearing Denied March 23, 1966.
    A. L. Lowery, Marion G. Holt, Nacog-doches, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is felony theft; the punishment, 10 years.

The record has now been perfected, and our prior opinions are withdrawn.

The sole question presented is whether or not the evidence is sufficient to establish appellant’s guilt as a principal to the taking.

Appellant resided in a rural portion of Nacogdoches County, and had known Mr. Martin, the injured party, for a number of years and had often visited in his home. Appellant’s sister, a woman 35 years of age, had resided in Jefferson County for a number of years and had had no contact with Mr. Martin since she was a child. Martin was 84 years old and had poor eyesight. Appellant’s sister came to Nacogdoches County for a visit, and appellant took her and her children to visit Mr. Martin. While appellant and Martin sat on the front porch talking, appellant’s sister, under the guise of getting some water for her children, entered Martin’s home and retrieved Martin’s billfold from its hiding place over a door sill. Shortly thereafter, the group left, whereupon Martin became suspicious, went to look for his billfold, found it gone and reported the theft to the officers. Appellant and his sister were apprehended the same day, and approximately $475.00 of currency, which Martin identified as part of that taken from him, was recovered from appellant’s person.

Appellant’s sister, who was found by the trial court to be an accomplice as a matter of law, testified that she was in dire financial straits and that appellant had instructed her to steal Martin’s billfold and that prior to their visit appellant told her where it might be found in his house. We have concluded that since the taking occurred under the circumstances hereinbe-fore set forth, the facts constitute sufficient corroboration of the accomplice’s testimony. Morgan v. State, 171 Tex.Cr.R. 187, 346 S.W.2d 116.

While testifying in his own behalf, appellant admitted all the salient facts set forth above, but denied that he had told his sister where she might find Martin’s money or that he instructed her to steal the same while he engaged Martin in conversation. He admits that he and his sister divided the money without counting it shortly after they left the Martin home and admits that he had bought three new tires for his pickup and a pair of shoes before he was apprehended by the officers.

We have concluded that even though appellant’s confession does not recite that he and his sister agreed to steal Martin’s money prior to their visit to the Martin home, the jury were nevertheless authorized to conclude from the facts set forth above that appellant was a principal. Lesley v. State, 168 Tex.Cr.R. 601, 331 S.W. 2d 58.

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