text:
    ARANSAS PROPERTIES, INC., Appellant, v. R. D. BRASHEAR et al., Appellees.
    No. 253.
    Court of Civil Appeals of Texas. Corpus Christi.
    Jan. 26, 1967.
    Rehearing Denied Feb. 16, 1967.

      Bond Davis, San Antonio, for appellant.
    Luther E. Jones, Jr., Corpus Christi, for appellees.
   OPINION

SHARPE, Justice.

This appeal is from a judgment rendered in a non-jury trial that appellant Aransas Properties, Inc., plaintiff below, take nothing by its suit against R. D. Brashear and R. L. Irwin, appellees, defendants below.

Appellant in its original brief urged fifteen points of error, but by motion and supplemental brief withdrew point one and added a point denominated “Fifth Point A”. Appellees have replied with a single counterpoint asserting that appellant failed to establish by trial court finding or conclusive evidence the essential elements of any theory of recovery asserted by it. ' Ap-pellees’ counterpoint is briefed in appropriate subdivisions applicable to each theory of recovery relied on by appellant.

We agree with appellees and affirm the judgment.

Appellant alleged that it had theretofore executed two deeds to appellee Brashear covering certain property in Aransas County, Texas, situated generally north of Rockport, Texas and lying between State Highway 35 and the intracoastal canal to the east thereof (where it runs through Aransas Bay). The first instrument was a special warranty deed dated April 14, 1961, and the second was a quitclaim deed dated January 26, 1962. Appellant further alleged that the special warranty deed was executed in accordance with a map made by Brashear as a surveyor and civil engineer employed by appellant, which was drawn on March 23, 1960 and certified to by Brashear and two other persons on April 12, 1960; and that Brashear had designated the property to be conveyed on said map. Appellant sought judgment confining the area covered by the special warranty deed to such designation, and alleged that Brashear was estopped to claim that the deed covered any land in addition to that so specifically designated by him on the map. Appellant also sought to cancel the subsequent quitclaim deed on the ground of fraud, and to cancel a later partition deed by and between appellees Brash-ear and Irwin on the ground that none of the land covered by it or the plat attached thereto was included in the tract conveyed to Brashear by appellant, and that the partition deed constituted a cloud on appellant’s title to land owned by it.

After entry of the take-nothing judgment, the trial court made findings of fact and conclusions of law as follows:

“1. Plaintiff executed and delivered to defendant Brashear the special warranty deed dated April 24, 1961 which is in evidence as Plaintiff’s Exhibit No. 4. The action of plaintiff in so doing was an integral part of an overall transaction in which there was an exchange of conveyances between plaintiff and defendant Brashear. Plaintiff, as its part of such exchange, received a conveyance from defendant Brashear conveying to plaintiff valuable land owned by defendant Brashear. , Defendant Brashear, as his part of such exchange, received the said special warranty deed. The negotiations between the parties incident to such transaction were conducted at arm’s length and there was no fiduciary or confidential relation between defendant Brashear and plaintiff or any of its officers at any time during such negotiations or at the time of the execution by plaintiff of said deed.
“2. Plaintiff executed and delivered to defendant Brashear the quitclaim deed dated January 26, 1962 which is in evidence as Plaintiff’s Exhibit No. 6. Plaintiff did this in consideration of defendant Brashear’s forebearance from filing a title suit against plaintiff. The negotiations between the parties incident to such quitclaim were conducted at arm’s length and there was no fiduciary or confidential relation between defendant Bra-shear and plaintiff or any of its officers at any time during such negotiations or at the time of the execution by plaintiff of said quitclaim deed.
“3. The northeast corner of Lot 1, Block 245 of Burton and Danforth Subdivision in' Aransas County, Texas (i. e. the northeast corner of said Subdivision) as shown on map of said Subdivision prepared by T. L. Telford dated December 9, 1909 (such map being hereafter referred to as the Telford map and copy of such map being in evidence as Defendants’ Exhibit No. 1) and the northeast corner of said Subdivision as shown on said quitclaim deed are both located on the ground at the same point.
“4. The tract described in said quitclaim deed is located on the ground as shown in Defendants’ Exhibit No. 2.
“5. The tract described in said special warranty deed is identical with the tract described in said quitclaim deed, subject to this qualification, that the centerline of Ocean Drive is used as a boundary in said special warranty deed, whereas the east line of said Ocean Drive is used as a boundary in the said quitclaim deed.
“6. Defendant Brashear sold to plaintiff the map dated April 12, 1960 which is in evidence as Plaintiffs Exhibit No. 1 (such map being hereafter referred to as the Brashear map). At the time of such sale defendant Brashear made to the plaintiff and its officers the representations contained in the Certificate on such map. There was no reliance by plaintiff or its officers on such representations at time of, or during negotiations incident to, execution of said special warranty deed or said quitclaim deed in so far as such representations were germane to the matter of the location on the ground of the northeast corner of Lot 1, Block 245 of Burton and Danforth Subdivision in Aransas County, Texas, or in so far as such representations were germane to the matter of the location of the ground of Ocean Drive, or in so far as such representations were germane to the matter of the location on the ground of the intersection of Ocean Drive and the Intracoastal Canal. The reason for this lack of reliance was that before commencement of the negotiations which resulted in execution of said special warranty deed plaintiff and its officers were advised by defendant Brashear of inaccuracies in said Brashear map disclosed by survey work done by him on the ground after sale of such map. With respect to the matter of the location on the ground of said corner and the matter of the location on the ground of said Ocean Drive the parties to said deeds, at the time of execution of said deeds, relied on the said Telford map rather than the said Brashear map.
“7. Neither at the time of, or during negotiations incident to, execution of said deeds or either of them was there made by defendant Brashear or relied on by plaintiff or any of its officers any false or misleading representation of any kind with reference to the matter of the location on the ground of the land described in such deeds.
“8. Premises considered, it is the conclusion of the Court that plaintiff did not legally establish any ground of recovery or cause of action entitling plaintiff to recover and that, accordingly, defendants were entitled to entry of the take nothing judgment heretofore entered by the Court in this cause.”

Appellant’s contentions may be divided into two groups. The first consists of Points 8, 9, 10 and 11, by which appellant contends that the trial court erred in its conclusion of law that appellant did not establish any ground of recovery, in denying recovery restricting the land conveyed under the special warranty deed on the basis of estoppel, in refusing to cancel the quitclaim deed because of Brashear’s alleged fraud, and in refusing to cancel the partition deed between appellees in order to remove an alleged cloud from appellant’s title. The second group of points consists of appellant’s points 2-7 and 12-14 by which appellant contends that the evidence is legally and factually insufficient to support certaia findings of the trial court particularly the following: findings 1 and 2 (last sentence),. 5, 6, (3rd, 4th & 5th sentences), and 7.

We have reviewed the entire record in the light of appellant’s contentions and have concluded that the evidence is legally and factually sufficient to support the findings-of fact made by the trial court. See Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965). The evidence consisted of the testimony of five witnesses and a number of documents. The two principal witnesses were Mr. H. H. Dewar, vice-president of appellant corporation who handled the transactions in question for it, and R. D. Brashear, the only witness for appellees. Two of appellant’s witnesses were of counsel for it in this case, and one of them represented the corporation as its attorney in connection with the two deeds executed by it to Brashear. The fifth witness was a real estate appraiser who testified as to values. Conflicts in the testimony were largely resolved by the trial judge in favor of appellees.

The descriptions in the two deeds are as follows:

(a) Special warranty deed.
“Beginning at the northeast corner of Lot one (1), Block two hundred forty-five (245), Burton & Danforth Subdivision prepared by P. L. Telford, December 9, 1909, recorded in Vol. 1, pages 62 and 63, Map and Plat Records of Aransas County, Texas;
“Thence north 83° 52' east with the north boundary line of the Aransas Properties land along a fence line to the west boundary line of the Intracoastal Canal;
“Thence in a southwesterly direction with the west boundary line of Intracoastal Canal to a point where said west line crosses the centerline of Ocean Drive, an 80 ft. dedicated road;
“Thence in a northeasterly direction with the centerline of said Ocean Drive to the point of beginning, containing 22 acres, more or less.”
(b) Quitclaim deed.
“Starting at a point in the centerline of the Texas and New Orleans Railroad tracks, said point being in the easterly projection of the fence line which is the north boundary line of a 15 acre tract of land in the name of Ziba G. Ward as shown by a plat prepared by J. D. Wheeler and recorded in the map records of Aransas County, Texas in Vol. 1 at page 24,
“Thence in an easterly direction 803.47 ft. with the easterly projection of said north line and said fence, said projection being along the north line of the Burton and Danforth Subdivision as shown by map prepared by P. L. Telford, dated December 10, 1909 and recorded in Vol. 1 at pages 62 and 63 of the map records of Aransas County, Texas,
“Thence south 70 deg. 15 min. east along an old fence line marking the boundary line of said Burton and Danforth Subdivision 545 ft. to a corner of said Burton and Danforth Subdivision and the point of beginning of the tract herein described, which point of beginning is at the intersection point of the east boundary of Ocean Drive and the north line of a 40 ft. roadway on the north side of said Burton and Danforth Subdivision,
“Thence north 87 deg. 17 min. east along a fence line to the west boundary of the intracoastal canal for the northeast corner of this tract,
“Thence in a southwesterly direction along the west boundary of said intra-coastal canal to a point where said west boundary of said canal crosses the east line of Ocean Drive an 80 ft. roadway as shown by map of said Burton and Dan-forth Subdivision for the most southerly corner of this tract,
“Thence along the east boundary line of said Ocean Drive to the point of beginning.”

The principal difference in the descriptions used in the two deeds is that in the special warranty deed the center line of Ocean Drive is used as a boundary, whereas in the quitclaim deed the east line of Ocean Drive is used. The trial court found that the tract described in the special warranty deed was identical with that described in the quitclaim deed subject to that qualification, and that the tract described in the quitclaim deed is located on the ground as shown in Defendants’ Exhibit No. 2. For convenience we will sometimes refer to that tract as the “D-2 Tract”. Appellee Brash-ear gave testimony showing that the description contained in the quitclaim deed when applied to the ground covers the D-2 Tract. That testimony was not contradicted by appellant and was accepted by the trial judge as fixing the actual location on the ground of the property conveyed by appellant to appellee Brashear. We regard the difference in the description contained in the two deeds concerning Ocean Drive as immaterial to disposition of the case. Appellant offered in evidence an exhibit marked Plaintiff’s Exhibit No. 1 which was a map originally drawn by Brashear in 1960 with indication thereon of a triangular tract which is smaller than the D-2 tract, and which appellant contends was the tract to be conveyed by its special warranty deed of April 14, 1961. This tract will sometimes be referred to as the “P-1 Tract”. The evidence in the trial court did not show the respective acreages actually contained in either the P-1 or D-2 tracts, but the special warranty deed recited the acreage as “22 acres, more or less”.

Appellant’s basic contention is that the tract conveyed by the special warranty deed should be judicially restricted so as to leave it no larger than the P-1 tract, and that appellees are estopped from asserting that the special warranty deed covers more land than that contained in the P-1 tract. If this theory should be sustained, appellant would be entitled to judgment for title to all portions of the D-2 tract which are additional to the land contained in the P-1 tract.

Although appellant takes the position that its suit is one to construe the special warranty deed, it is apparent that ultimately appellant must rely upon its theory of estoppel as it relates to that deed. Appel-lees correctly contend that appellant did not establish by court findings nor by conclusive evidence the essential elements of its estoppel theory of recovery.

An essential element of the estoppel theory of recovery was that at the time of the execution of the special warranty deed, appellant relied on false representations made by Brashear to appellant’s prejudice. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 932 (1952); Fitch v. Lomax, Tex.Com.App., 16 S.W.2d 530, 66 A.L.R. 758 (1929); 22 Tex.Jur.2d, Estoppel, Sec. 16, pages 683-684. This rule is particularly applicable to the representations concerning accuracy of the 1960 map Brashear sold to appellant and concerning the location on the ground of the northeast corner of Lot 1, Block 245 of the Burton & Danforth Subdivision in Aransas County, Texas, and the location on the ground of Ocean Drive or its intersection with the Intracoastal Canal. The trial court expressly found that there was no such reliance by appellant; that appellant and its officers had been advised by Brashear of inaccuracies in the 1960 map before the 1961 negotiations in question; and that concerning the location on the ground of the corner mentioned and of Ocean Drive the parties relied on another map, known as the Telford Map. In part, such findings are supported by the testimony of Brashear that after the 1960 map was made he discovered errors in it as a result of field work done by him, and that he discussed such errors with appellant’s vice president and its attorney, and his 1960 map was not actually used in working out the description finally used in the special warranty deed. The trial court findings are further supported by the fact that there is no mention in the special warranty deed of the Brashear map, but instead reference is made to the Telford map; by the inability of either appellant’s vice president or its attorney who handled the transaction to furnish any reason for using the Telford map instead of the Brashear map; and by the circumstance that the Brashear map disclosed a gap in Ocean Drive which could not have been relied on and produce the description actually used in the special warranty deed. Appellant’s vice-president and its attorney each testified they relied on Brashear’s representations in connection with drafting the special warranty deed. However, to the extent conflicts were presented, their resolution was peculiarly within the province of the trial court as the fact finder, and on the record presented we are bound by such findings. This is also true of the finding that there was no fiduciary or confidential relationship between appellant and Brashear at the time of the negotiations and execution of the deeds in question. For the reasons stated, appellant is not entitled to reversal on account of the failure of the trial court to sustain its theory of recovery based upon estoppel because of representations allegedly made by Brashear and appellant’s reliance thereon.

Appellant’s second theory of recovery sought cancellation of the quitclaim deed dated January 26, 1962 from appellant to appellee Brashear. Appellant’s basic position here is that it relied upon the representation of Brashear that the only purpose of the quitclaim deed was to cover a strip of land which Brashear claimed to exist at the north end of the property conveyed by the special warranty deed, that is, any strip which might lie between the north boundary of Lot 1, Block 245, Burton & Danforth Subdivision as shown on the Brashear map and the remains of an old fence, and that it did not extend the tract further south than that conveyed by the special warranty deed, as that tract was shown on the Brashear map. Appellant alleged that when it executed the quitclaim deed it was still relying on the correctness of that map and the prior representations as to its correctness as made by Brashear and also relying on a letter from Brashear dated January 22, 1962 which requested execution by appellant of the quitclaim deed. However, appellant also alleges and concedes that prior to said letter, Brashear had advised Mr. Dewar, appellant’s vice-president, that there was a divergence of opinion and conflicting claims as to whether the north line of Lot 1, Block 245, purporting to be the north line of the Burton & Dan-forth Subdivision, was located as shown on the Brashear map or whether it extended to an old fence line farther north; that Brashear took the latter position and requested the quitclaim deed so as to place him in position to assert claim to the additional strip, if any; that Dewar on behalf of appellant advised Brashear he did not want to participate in such controversy and that the quitclaim would be executed.

Mr. Dewar testified in substance that Brashear represented that the quitclaim deed would cover only the small strip above-mentioned at the north end of the tract and he executed it with that understanding or condition. Brashear testified that his only purpose in securing the quitclaim deed was to fix the special warranty deed he had to a known point on the ground; that there were no discussions as to how far south the boundary would extend ; that the two deeds describe the same tract of land, with the immaterial difference concerning the center line and east line of Ocean Drive, when the point which is the northeast corner of the Burton & Dan-forth Subdivision is fixed on the ground as shown by the Telford map; that he mentioned the possibility of a law suit against appellant to Dewar whose reaction was that “he didn’t want to be sued or have anything to do with any controversy there and he would give me a quitclaim.” The trial judge accepted Brashear’s version of what took place in connection with execution of the quitclaim deed, and his findings in connection with the same are legally and factually supported by the evidence. Appellant, therefore, cannot recover on its theory of representations allegedly made by Brashear or reliance thereon, in order to cancel the quitclaim deed.

It also appears that appellant failed to establish injury by reason of execution of the quitclaim deed. Under trial court findings, that deed had the effect of confirming the title to property which had been previously conveyed by the special warranty deed. Absent such showing of injury, appellant is precluded from recovery in any event in connection with the quitclaim deed. See Russell v. Industrial Transp. Co., 113 Tex. 441, 258 S.W. 462 (1924); Moore v. Cross, 87 Tex. 557, 29 S.W. 1051, 1053 (1895).

Appellant’s third theory of recovery sought cancellation of a partition deed executed by appellees Brashear and Irwin in connection with the southern portion of the D-2 tract. Generally, the tract partitioned is that which is not included in the P-1 tract. In order to recover on its third theory, it was essential for appellant to establish that it was the owner of the tract partitioned. Appellant failed to carry its burden in such respect because title to such partitioned tract had theretofore passed from appellant to appellee Brashear. That tract was included in the description of both the special warranty and quitclaim deeds. Appellant’s failure to secure a restriction of the property conveyed by the special warranty deed and to secure cancellation of the quitclaim deed precludes the relief sought for cancellation of the partition deed between appellees.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: BARROW, Chief Justice.

license: Public Domain

text:
    Mrs. Genevieve STREET, Administratrix of the Estate of Park Street, Deceased, Appellant, v. Henry J. HANNASCH et ux., Appellees.
    No. 14547.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 25, 1967.

      W. W. Palmer, Van Henry Archer, Alfred M. Scott, San Antonio, for appellant.
    Mayo J. Galindo, San Antonio, for ap-pellees.
   BARROW, Chief Justice.

This is an appeal from the granting of a summary judgment. Appellees, Henry J. Hannasch et ux., brought this suit against appellant, Mrs. Genevieve Street, in her capacity as administratrix of the estate of Park Street, deceased, to recover judgment in the sum of $2,769.24, allegedly due appellees under a contract whereby deceased attorney agreed to represent appellees in certain land condemnation proceedings on a contingent-fee basis.

Appellant urges nine points of error which are briefed together as all are germane to the asserted error of the court in granting a summary judgment in this case. Rule 166-A, Texas Rules of Civil Procedure, authorizes the granting of a summary judgment if the pleadings, depositions, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact. In determining whether a fact issue exists precluding a summary judgment, the same rule is used to test the evidence as in determining whether or not an instructed verdict should be granted. Valley Stockyards Co. v. Kinsel, 369 S.W.2d 19 (Tex.1963); Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557 (1962); Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952).

The Supreme Court has stated that the purpose of the summary judgment rule is to eliminate patently un-meritorious claims, or untenable defenses and to avoid delays of trial where there is no genuine issue of fact. It is to be applied with caution and will not be granted where there is doubt as to the facts. In re Price’s Estate, Tex., 375 S.W.2d 900, 904 (1964).

This summary judgment is supported by the pleadings of the parties and the affidavits of Mrs. Hannasch and James K. Gardner, Esq., associate of decedent during the period in controversy. The affidavit of W. W. Palmer, Esq., attorney for appellant, was filed in opposition to the motion. The deposition of Mr. Gardner was taken but was not filed in the record or relied upon by either party. Appellees’ cause of action is based upon four exhibits attached to appellees’ petition and identified by Mrs. Hannasch in her affidavit.

Appellant excepted to the affidavits of Mrs. Hannasch and Mr. Gardner and urges on this appeal that all or parts of each are improper. Section (e) of Rule 166-A, supra, provides that affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the af-fiant is competent to testify to the matters stated therein. See Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230 (Tex.Sup.1962); Box v. Bates, 162 Tex. 184, 346 S.W.2d 317 (1961).

Appellant urges that since Mrs. Hannasch was not called as a witness by appellant she was not competent to testify to any transaction with, or statement made by the decedent, Mr. Street, under the express terms of the Dead Man’s Statute (Art. 3716, Vernon’s Ann.Civ.St.). This proposition is correct, however, the statute does not prohibit one from relying upon written instruments executed by the deceased. Poehnert v. Coryell, Tex.Civ.App., 317 S.W.2d 84, no writ; Chajkowski v. Clements, Tex.Civ.App., 229 S.W.2d 633, writ dism’d; Newsom v. Fikes, Tex.Civ.App., 153 S.W.2d 962, writ ref’d; Box v. Ussery, Tex.Civ.App., 108 S.W.2d 230, writ dism’d. Although Mrs. Hannasch could not testify to any statements made by Mr. Street, she was competent to identify the exhibits attached to appellees’ petition, including the written contract signed by Mr. Street, and the written statement furnished appellees by him.

Appellant urges that the affidavit of Mr. Gardner contains legal conclusions without setting forth facts supporting same. It is settled that legal conclusions do not meet the requirements of Sec. (e) of Rule 166-A, supra, unless factually supported by the record. Box v. Bates, supra. Mr. Gardner’s statement as to the “understanding between him and Mr. Street” therefore cannot be considered.

The only affidavit filed by appellant in opposition to the motion for summary judgment was that of her attorney, Mr. Palmer. This affidavit does not contradict any fact in the affidavits of Mrs. Hannasch or Mr. Gardner. Appellant asserts, however, that her answer, which was also sworn to by Mr. Palmer, raises many fact issues. In Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948, 951 (1960), the Supreme Court said: “When facts entitling the moving party to prevail have been established by affidavits, deposition testimony or admissions, the motion for summary judgment will not be denied merely because the opposite party has alleged matters which, if proved, would require that a different judgment be rendered. * * * If the defendants expected to defeat the motion for summary judgment by showing an issue of fact * * * it was incumbent upon them to come forward with ‘evidence’ sufficient to raise that question.”

Appellant’s answer contains general allegations that appellees failed to cooperate with Mr. Street; appellees failed to exercise diligence in handling the claim, by moving to dismiss the State’s appeal as abandoned and in not pleading the two and four year statutes of limitation; that no actual trial was had, since no witnesses were sworn or heard, and therefore it amounted to a settlement by agreement. This answer, although sworn to by Mr. Palmer, does not meet the requisites of, and therefore cannot be considered as, an affidavit.

The following facts are established by competent and uncontradicted affidavits. On April 7, 1958, appellees entered into a written contingent-fee contract with Mr. Street. This contract recognized that ap-pellees had been offered a total of $5,190.00 for several tracts of land which were to be acquired by the State for right-of-way purposes. This offer was unsatisfactory to appellees and they employed Mr. Street to represent them in the condemnation proceedings which were to be filed by the State. The contract authorized Mr. Street to hire appraisers and take photographs, and to deduct these expenses before any fee was calculated. If the recovery did not exceed the State’s offer of $5,190.00, appellees and Mr. Street would each pay one-half of these expenses. Mr. Street was to receive as his fee, one-half of any recovery over and above $5,190.00 and the total expenses.

On October 8, 1958, the. Commissioners awarded appellees the sum of $11,688.48 as damages for the property taken, and this sum was subsequently deposited in the registry of the County Court, although the State duly appealed from this award. This money was subsequently withdrawn by ap-pellees, and on May 4, 1959, they paid Mr. Street the sum of $3,422.99 as requested by a statement furnished appellees. This statement reflected that $347.50 had been incurred for expenses and the sum of $3,-075.49 was for services rendered by him pursuant to their agreement. On August 5, 1965, the appeal from the award of the Commissioners was heard by the County Court and the damages to appellees for the taking of their property were found to be the sum of $6,150.00. This resulted in a deficiency judgment being entered against appellees on December 20, 1965, for the sum of $5,538.48.

In December, 1964, Mr. Street became ill and was unable to participate in the trial of any cases. He and Mr. Gardner, who had been associated with Mr. Street since 1956 and had participated with him in many condemnation trials, made arrangements whereby Mr. Gardner would handle the de novo proceedings in a number of appeals of condemnation cases, if agreeable to the •clients. Appellees agreed to this arrangement. Mr. Gardner stated in his affidavit that “Mr. Street reiterated his responsibility to the Hannasches in the event of such deficiency (judgment).”

Mr. Street died during the night of August 5 or morning of August 6, 1965, and appellant became the duly appointed, qualified and acting administratrix of his estate. The uncontroverted affidavit of Mrs. Hannasch establishes that after the deficiency judgment was entered, appellees duly presented their sworn claim to appellant in her capacity as administratrix, and the claim was in all things refused. The record shows that the petition asserting this claim was filed on February 21, 1966. Appellees thereby established that the district court had jurisdiction under the Probate Code over this claim. Sections 313, 314, Probate Code, V.A.T.S.

Appellant complains for the first time on this appeal because the copy of the deficiency judgment attached to appellees’ petition is not certified. It was identified as a copy of the County Court’s judgment by Mrs. Hannasch in her affidavit. A similar complaint was discussed at length by the Supreme Court in Boswell v. Handley, 397 S.W.2d 213 (Tex.1963). It is seen from this analysis that the situation presented by our case is similar to that presented by the Mallard “b” lease in Youngstown Sheet & Tube Co. v. Penn, supra. The Supreme Court in Boswell reaffirmed its prior holding in Youngstown, that where the affidavit referred to the operating agreement attached to the answer and stated that it was executed by the parties, the copy constituted a sufficient basis upon which a motion for summary judgment could be granted or denied, in the absence of an exception by the opposing party. (Emphasis added by Supreme Court.) Furthermore, Mr. Gardner was competent to testify from personal knowledge as to the judgment rendered by the court.

The record conclusively establishes that Mr. Street agreed to handle these condemnation cases for appellees on a contingent-fee basis, and that he earned a fee of $306.25 under this agreement. He had previously received the sum of $3,075.49 under the agreement, and therefore appellees are due and owing the sum of $2,769.24 in reimbursement. Mr. Street’s liability for this reimbursement is not only established by his promise to appellees as stated by Mr. Gardner, but also by an implied covenant of the contingent-fee contract. The trial court did not err in granting summary judgment on this record.

The judgment of the trial court is affirmed.


author: GREEN, Chief Justice.

text:
    COASTAL STATES CRUDE GATHERING COMPANY, Appellant, v. Margaret E. STRAUCH, Appellee.
    No. 265.
    Court of Civil Appeals of Texas. Corpus Christi.
    Jan. 26, 1967.
    Bernard W. Schrader and W. T. Blackburn, Corpus Christi, for appellant.
    George Strauch, Houston, for appellee.
   OPINION

GREEN, Chief Justice.

Appellee sued for $1,400.00 damages for a continuing trespass caused by the alleged unlawful construction by appellant of a pipeline on her property, and for a declaration by the court that a pipeline easement owned by appellant does not authorize the construction of additional pipelines thereon. A motion for summary judgment was filed by each party. Appellant sought to have certain multiple line rights which were set. out in its easement deed declared valid. Appellee, alleging that except as to the amount of damages there is no genuine issue of any material fact, sought judgment establishing her claim for continuing trespass, and for a declaration that appellant has no right to install additional pipelines on her property, and asked that the question of the extent of her damages be left for a later trial.

The court entered its order overruling appellant’s motion, and granting what the court expressly designated as plaintiff’s “motion for a partial summary judgment.” Such order disposed of all matters in controversy except the amount of damages caused by the trespass, which issue was left for a later trial. No order of severance was entered. Since the judgment did not dispose of all issues in the pending suit, it is not a final judgment and this court is without jurisdiction to review it. McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265; Palmer v. D. O. K. K. Benevolent and Insurance Association, 160 Tex. 513, 334 S.W.2d 149.

A partial summary judgment determining the liability issues favorably to plaintiff, but leaving for trial only the issue pertaining to damages, if any, was held by the El Paso Court of Civil Appeals to be an interlocutory non-appealable order, and the appeal was dismissed, in Minchen v. Murrah, Tex.Civ.App., 285 S.W.2d 372, writ refused.

A similar situation was before this court in United Services Automobile Association v. Eberly, Tex.Civ.App., 399 S.W.2d 886, n. w. h. The appeal was from a partial summary judgment granting plaintiff all of the relief sought against the defendant except that the issue of the amount of damages was not disposed of. There was no order of severance. We held such to be an interlocutory non-appealable order, and dismissed the appeal.

In Iley v. Hughes, 158 Tex. 362, 311. S.W.2d 648, 85 A.L.R. 1, it was held that Rule 174(b), Texas Rules of Civil Procedure does not authorize a separate trial of the damage issues and the liability issues in a suit for damages for personal injuries. There is no reason to believe that the same rule of law would not also apply to a suit for damages to land. However, Rule .166-A(a) provides that “A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.” This rule and the interlocutory character of the summary judgment rendered when it is applied is recognized in Iley. Of course a summary judgment that a defendant is not liable to plaintiff would be a final, appealable judgment, for it would dispose of all issues and no damage issues would remain to be decided.

The Court of Civil Appeals in Steeple Oil and Gas Corporation et al v. Amend, 392 S.W.2d 744, took jurisdiction of and acted upon an appealed case where the trial court had granted a partial summary judgment on all issues except the reasonable value and/or reasonable rental value of appellant’s gas well equipment. According to the opinion, the latter issue was severed from the primary cause of action and was not involved in the appeal. Writ of error was granted by the Supreme Court, and that court in a per curiam opinion reported same style in 394 S.W.2d 789 said:

“Petitioners have attempted to appeal from a partial summary judgment without a severance of the other issues between the parties. Since the judgment is interlocutory and not appealable, under our holding in Pan American Petroleum Corporation v. Texas Pacific Coal & Oil Company, 159 Tex. 550, 324 S.W.2d 200 (1959), neither this Court nor the Court of Civil Appeals has power to review it. We accordingly reverse the judgment of the Court of Civil Appeals and dismiss the appeal. McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265 (1957).”

Appellant cites the case of Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396 as holding that when both parties file motions for summary judgment and one motion is granted the trial court’s judgment becomes final and appealable, and on appeal the Court of Civil Appeals should determine all questions presented; and if reversible error is found the court should render such judgment as the trial court should have rendered. The Supreme Court did in fact so hold in Tobin and also in Gulf, Colorado & Santa Fe Railway Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492, in both of which cases the appellate courts had jurisdiction by reason of the appeal being taken from a final, complete summary judgment disposing of all issues before the trial court. Because the appellate courts had jurisdiction of the appeal from the order granting a final summary judgment, it was held that the appellate courts had jurisdiction over all matters on appeal in each case, including power to pass upon the order overruling appellant’s motion when the court found error in the order granting appellee’s motion.

Tobin v. Garcia, supra, and Gulf Colorado & Santa Fe Railway Co. v. McBride, supra, are not applicable to the instant appeal, since here there is no final order which will give this court jurisdiction.

Appellant in its supplemental brief cites the case of Phillips Petroleum Company v. Lovell, Tex.Civ.App., 392 S.W.2d 748, writ ref. n. r. e., as authority for this court having jurisdiction of this appeal. A review of the transcript filed in the Amarillo Court of Civil Appeals in that case, and which we have before us, reveals that the trial court in its judgment expressly ordered “that the issue of damages to Plaintiff’s property be docketed and set as a separate issue and claim before this Court and that it be tried as a separate cause.” The ap-pealability of a judgment is not made to turn upon whether the action is severable; the order of severance may be subject to being set aside on appeal, but until this is done such order effectively separates the controversy into two causes, and a judgment which fully adjudicates one of the severed causes is appealable. Pierce v. Reynolds, Tex.Sup.Ct., 329 S.W.2d 76; Appellate Procedure in Texas, § 2.8 (3), Severance. The judgment in Phillips Petroleum Company, supra, was therefore ap-pealable.

In the absence of an order of severance, the judgment in the instant case is interlocutory and non-appealable, and we have no choice but to dismiss the appeal. Steeple Oil and Gas Corporation v. Amend, Tex.Sup.Ct., supra; Pan American Petroleum Corporation v. Texas Pacific Coal & Oil Company, Tex.Sup.Ct., supra; Munguia v. Paiz, Tex.Civ.App., 397 S.W.2d 101, n. w. h.; United Services Automobile Association v. Eberly, Tex.Civ.App. supra; Nichols v. Omega Amusement Company, Tex.Civ.App., 391 S.W.2d 754, n. w. h.; Sears v. Mund Boilers, Inc., et al, Tex.Civ.App., 328 S.W.2d 199, writ ref.; Minchen v. Murrah, Tex.Civ.App., supra.

Appeal dismissed.

      . Emphasis added.


author: McDONA'LD, Chief Justice.

text:
    LEVIT’S JEWELERS, INC., d/b/a Main Discount Store, Appellant, v. Benjamin F. FRIEDMAN, Appellee.
    No. 4579.
    Court of Civil Appeals of Texas. Waco.
    Jan. 26, 1967.
    Rehearing Denied Feb. 16, 1967.

      Baker, Botts, Shepherd & Coates, Paul W. Persons, Houston, for appellant.
    Otto A. Yelton, Jr., Houston, for appel-lee.
   OPINION

McDONA'LD, Chief Justice.

This is an appeal by defendant Levit, from a judgment for plaintiff Friedman, in a suit for personal injuries received by plaintiff, when a sign owned by defendant and attached to the outside of defendant’s store, fell and struck plaintiff on the head. Plaintiff plead the doctrine of res ipsa lo-quitur, and alternatively that defendant was guilty of specified acts of negligence. Trial was to a jury which found:

1) The sign at the time and on the occasion in question was under the exclusive control of defendant.
2) Defendant did not fail to have the sign properly secured to the premises.
3) Defendant failed to maintain the sign in a safe condition, which was negligence, and a proximate cause of plaintiff’s injuries.
4) Defendant failed to properly inspect the sign, which was negligence, and a proximate cause of plaintiff’s injuries.
5) The occurrence was not an unavoidable accident.
6) Plaintiff was struck by the falling sign on April 16, 1963, and sustained personal injuries to plaintiff’s damage of $10,000.

Plaintiff moved for judgment on the verdict; and defendant moved to disregard findings and for judgment, and alternatively for judgment notwithstanding the verdict.

The trial court overruled defendant’s motions and entered judgment for plaintiff on the verdict.

Defendant appeals on three points, contending :

1) Defendant is entitled to judgment because plaintiff did not obtain findings of any defective condition which defendant could or should have discovered in the exercise of ordinary care, and which had existed sufficient time for defendant to have discovered it.
2) There is no evidence, or insufficient evidence of negligence on the part of defendant proximately causing plaintiff’s injuries.
3) Defendant is entitled to judgment because the jury found defendant did not fail to have the sign properly secured to the premises, which was the ultimate and controlling issue in the case.

Defendant’s first two contentions in effect complain of the applicability of the res ipsa loquitur doctrine. Defendant asserts the evidence shows the accident was caused by the combined effect of the design of the sign and the wind; and that the sign was within reach of the general public; and that for these reasons, res ipsa loquitur is inapplicable, and plaintiff had the burden of securing findings of a specific defective condition proximately causing plaintiff’s injury.

Defendant was owner of the sign which fell on plaintiff, and had full complete possession and control of the premises. The sign was put up in November, 1962 as an inexpensive, temporary sign which would be up through the Christmas season. The business continued, however, for some 14 months, and the sign fell on plaintiff in April, 1963. Defendant was warned by the man who installed the sign that it was of a temporary nature, and if the store was to remain open, the sign should be checked. There is evidence the sign fell because its right side broke loose; and evidence that the wire holding the right side had unraveled; and that over a period of time movement caused by the wind would gradually unravel the wire. There is evidence a close inspection of the sign would have disclosed the wire was coming unraveled, or if the sign was in an unsafe condition. The sign had no maintenance after its installation, and the only inspection was a casual glance by defendant’s manager.

Defendant filed no motion for new trial and elected to complain of the trial court’s refusal to render judgment non obstante. See Rule 324, Texas Rules of Civil Procedure.

Under Rule 301 T.R.C.P. the trial court can render judgment non obstante only where a directed verdict would have been proper.

Defendant plead the doctrine of res ipsa loquitur. The defendant admitted and the jury found that the sign was in the exclusive control of defendant. There is no evidence that it was meddled with by any member of the general public. We think the doctrine of res ipsa loquitur applies and in such situation it is not necessary to plead and prove specific acts of negligence, and the issues submitted inquiring if defendant failed to maintain and properly inspect the sign are proper. Bond v. Otis Elevator Co., Tex.Sup.Ct, 388 S.W.2d 681. See also: Leonard Bros. v. Newton, Tex.Civ.App., Er. Dis., 71 S.W.2d 613; Collins v. Gulf Bldg., Tex.Civ.App., Er. Ref., 83 S.W.2d 1093; Southwestern T. & T. Co. v. Sheppard, Tex.Civ.App., Er. Ref., 189 S.W. 799.

Defendant’s third contention is that it is entitled to judgment because the jury found it did not fail to have the sign properly secured to the premises. The record reflects such issue referred to whether the sign was properly secured at the time it was fastened to the building, and that all parties so understood it. If we should (which we do not) regard such issue in conflict with the other issues, defendant did not complain on motion for new trial, and cannot here complain. City Transp. Co. of Dallas v. Vatsures, Tex.Civ.App., Er. Dis., 278 S.W.2d 373.

All defendant’s points and contentions are overruled.

Affirmed.


author: MASSEY, Chief Justice.

text:
    CONTINENTAL LUMBER COMPANY, Inc., Appellant, v. Warren DONALDSON, Appellee.
    No. 16788.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 13, 1967.
    Rehearing Denied Feb. 17, 1967.
    Walter S. Fortney, Richard Owens, Fort Worth, for appellant.
    Garrett & Garrett and Rufus Garrett, Jr., Fort Worth, for appellee.
   OPINION

MASSEY, Chief Justice.

•The question posed is one of contractual construction. Plaintiff Continental Lumber Company, Inc., sued defendant Warren Donaldson for damages because of the defendant’s failure to return plaintiff’s deposit of $2,500.00 advanced under provisions of an option contract, entitling plaintiff to purchase real estate. Defendant contended that the time had expired within which plaintiff was entitled to unilaterally cancel the contract with return of the deposit, and that under the contract, as amended and extended, was entitled to refuse to purchase the land but forfeited the deposit.

Judgment was for the defendant and plaintiff appealed. We reverse and render such judgment.

But for the amendatory agreement of September 30th, 1964 there is no question but that defendant would have been entitled to prevail. The original contract was dated June 5, 1964. Thereby the defendant, in consideration of the plaintiff’s $2,500.00, granted the option to expire at the end of 120 days with defendant to retain the deposit in the event the option was not exercised. During said period it was provided that the plaintiff would satisfy itself as to title defects and to raise title objections; and in the event of such would have the right to nullify the agreement and receive back its deposit or to waive title objections and enforce specific performance by the defendant.

Language of the original agreement material to our consideration read:

“First Party (defendant) * * * does hereby give and grant to Second Party (plaintiff) * * * right and option, exercisable by notice in writing * * * deposited for mailing not later than 120 days from the date of this agreement, to purchase * * * (property described).

“The purchase price * * * is $110,-000.00.

“The Second Party may extend this option agreement for an additional 120 days upon the payment of $4,000.00 for said extension 5 days prior to the expiration date of the original option.

“Second Party shall satisfy himself as to the condition of the title during the initial option period * * *.

“First Party warrants that * * * there are no easements now existing affecting said property. In the event any easements are found * * * Second Party may elect to receive a refund of the option money and cancel this option agreement, if First Party is notified in writing prior to the expiration of the initial option period.”

(Language following is upon premise that option to purchase is exercised, with provision made that in such event the $2,500.00 paid for the option should apply upon the total purchase price.)

Language of the amendatory agreement material to our consideration read:

“Whereas, it was agreed in said (original) Option Contract that the same should be exercised by Second Party giving notice in writing by registered mail * * * deposited for mailing not later than 120 days from the date of such Option Contract; and,

“Whereas, both First Party and Second Party desire and have agreed to change such period of time for the exercise of such option by Second Party from 120 days from date thereof to 150 days from date thereof:

“Now, Therefore, Know All Men By These Presents (that the parties) in consideration of the benefit to each from such extension of time, and the further consideration of the payment by Second Party to First Party of the sum of $10.00 in cash * * * do hereby agree as follows:

“1. The period of time designated in said Option Contract for the exercise of such option by Second Party is hereby changed from 120 days to 150 days from the date thereof, June 5, 1964, just as if 150 days had originally been written therein.

“2. In all other respects the terms and conditions of said Option Contract shall remain the same and unchanged.”

Selection of language in and preparation of the original contract and extension agreement was by plaintiff and its attorneys.

Trial was before the court without a jury. The court heard parol evidence. Established thereby was the fact that during the initial 120 day period the plaintiff learned of circumstances suggesting that there might be title defects entitling it to cancel the original contract, but that informed knowledge of existence of such defects (occasioning its ultimate decision not to purchase) was not acquired until after the amendatory agreement was executed. Also established was the fact that title defects which would entitle the plaintiff to cancel the original contract were existent.

In Findings of Fact and Conclusions of Law the trial court found that it was the intention of the parties in executing the second agreement to simply grant to plaintiff an additional 30 days in which to exercise the option and not change the original agreement in any other way. The court further found that it was the intention of the parties that the plaintiff’s right to cancel the option agreement expired at the end of 120 days, and that their intention by executing the second agreement was to tie up defendant’s land for an added 30 days and to give the plaintiff the sole right to buy it for that added period.

The trial court concluded: “I construe the two contracts to give the plaintiff the right to cancel the option agreement on the grounds of the existence of easements within the initial option period of 120 days and not after that time. * * * If it can be said that the two agreements executed by the parties are ambiguous and are susceptible of being construed in two ways * * * then the Court here must give the agreements the construction most favorable to defendant because such second agreement which gave rise to the problem was prepared by the plaintiff’s lawyer.”

The contracts, when considered together, suggest an ambiguity but it is our conclusion that the intent of the parties stands disclosed by language of the amendatory contract.

Certainly, it could not have been intended that it would be other than an intelligent exercise of the option for which provision was made. To have made such required that the plaintiff be fully informed as to title defects. It was not so informed before the expiration of 120 days of June 5, 1964, but was prior to the expiration of 150 days.

We have concluded that it would be unrealistic to believe and find that the parties, by the amendatory contract of September 30, 1964, merely intended that the plaintiff should have an additional 30 days time within which to agree to purchase the property (without payment of an additional $4,-000.00 for a 120 day extension) or forfeit its $2,500.00 deposit. We believe and find that the parties intended to extend for all purposes and for 30 days the “initial option period” mentioned in the original contract. That “initial option period” was a term of 120 days, and as extended became 150 days, from the original contract date of June 5, 1964. As provided by the original contract the plaintiff had time to satisfy himself as to the condition of the title “during the original option period”. If we are correct in believing that it was “the original option period” which was extended it necessarily follows that plaintiff had the right for a period of 150 days rather than 120 days to reject the property by reason of title defects. Having exercised such right in proper time and manner it was entitled to judgment against the defendant for the return of its $2,500.00.

The defendant, by counter-point, contends that plaintiff was estopped from the recovery of the $2,500.00 because it attempted to sell the optioned property or portion thereof, after the discovery of title defects but before it served notice of its decision not to purchase. Such was plaintiff’s right and its exercise (no sale effected) would not give rise to the doctrine of es-toppel.

Judgment is reversed. Judgment is rendered for plaintiff Continental Lumber Company, Inc., against Warren Donaldson for $2,500.00 plus legal interest from October 26, 1964, and all costs of suit.


author: CADENA, Justice.

text:
    JACK CANE CORPORATION et al., Appellants, v. Antonia GONZALES, Appellee.
    No. 14538.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 25, 1967.
    Groce, Hebdon, Fahey & Smith, Damon Ball, San Antonio, for appellants.
    Putman & Putman, Richard G. Strong, San Antonio, for appellee.
   CADENA, Justice.

Appellants, Jack Cane Corporation and Al West Corporation, defendants below, appeal from a judgment allowing plaintiff, Antonia Gonzales, to recover damages for injuries sustained by her when she slipped and fell while descending a flight of stairs in a theater.

Plaintiff’s original petition and trial amendment charged defendants with negligence in (1) failing to warn her of the defective condition of the carpeting on the stairs; (2) failing to properly inspect the carpeting to determine its condition; (3) maintaining the carpeting in a defective condition; (4) failing to repair the defective condition of the carpeting; and (5) failing to maintain the carpeting in a reasonably safe condition.

Plaintiff testified that, as she was descending the stairs, her heel caught in a hole in the carpeting, causing her to fall. She also testified that there were no signs warning of the condition of the carpeting and that it was dark inside the theater, although she could see where she was going.

Special Issue No. 1, inquired of the jury whether “Defendants failed to maintain the stairs upon which the Plaintiff * * * fell in a reasonably safe condition.” The jury answered this issue in the affirmative and also answered the corollary issues relating to negligence and proximate cause in a manner favorable to plaintiff. The jury’s answers to this group of issues furnish the only grounds for imposing liability on defendants.

Defendants objected to the submission of Special Issue No. 1 on the ground that it was too broad, global, and constituted a general charge.

Our special issue system in Texas has been troubled with the multiplication of issues in personal injury cases. The problems of the special issue charge “are those of profusion, conflicting answers, and confusion to the jurors.” Barclay v. C. C. Pitts Sand and Gravel Co., 387 S.W.2d 644, 650 (Tex.Sup., 1965, concurring opinion by Mr. Justice Pope). No useful purpose can be served by an attempt to analyze all that has been written, in judicial opinions and elsewhere, concerning our law of special issues. The nature of the distinctions which have been drawn is perhaps best illustrated by the apparent inability of some of our leading jurists to describe them without using the term “metaphysical.” See Roosth & Genecov Production Co. v. White, 152 Tex. 619, 262 S.W.2d 99 (1933, per Mr. Justice Garwood); Barclay v. C. C. Pitts Sand and Gravel Co., supra, 387 S.W.2d at p. 648 (concurring opinion of Mr. Justice Norvell).

But, however abstruse or esoteric the distinctions may be, we seem to be committed by the force of precedent to the doctrine that in negligence cases issues must be more narrowly drawn than in “non-negligence” cases. Roosth & Genecov Production Co. v. White, supra; Pope, Broad and Narrow Issues, 26 Tex.Bar Journal 621, 978 (1963). But even this distinction is not subtle enough, since it does not explain why, in negligence cases, it is proper to submit “global” issues relating to res ipsa loquitur, discovered peril, attractive nuisance and lookout. Barclay v. C. C. Pitts Sand and Gravel Co., supra, 387 S.W.2d at p. 650, n. 2.

As Mr. Justice Norvell pointed out in Barclay: “It is sometimes far from clear whether an issue is global, ultimate or simply the result of a granulation of an ultimate issue. This difficulty is inherent in the special issue practice and hence precedent or what has been approved heretofore is important in this area.” 387 S.W.2d at p. 649, n. 2.

Adherence to precedent in this area compels the conclusion that the first issue submitted to the jury in this case was too broad. In the Roosth case, supra, the Supreme Court held too broad an issue which merely inquired whether the derrick in question was defective. In the course of his opinion, Mr. Justice Garwood pointed out that special issues should be restricted to specific acts alleged and proved. 262 S.W.2d at p. 104. In a subsequent decision' it was held that even where negligence is alleged in general terms, a general submission is improper in the face of a timely objection. Kainer v. Walker, 377 S.W.2d 613 (Tex.Sup., 1964).

The Roosth holding did not settle the matter definitively. In Querner v. De Spain, 339 S.W.2d 723 (Tex.Civ.App., 1960, writ ref’d, n. r. e.) the issue under attack inquired whether the air brake on a truck was defective. The challenge to the issue on the basis of the Roosth case was rejected by this Court with the following observation: “Had the court below inquired whether the truck was defective instead of the air-line on the truck, the [Roosth] case would be helpful. Here the specific item was named which plaintiff claimed was defective, and the issue was not too broad.” 339 S.W.2d at p. 727.

Four years later, in Simmons Motor Co. v. Mosley, 379 S.W.2d 711, 715 (Tex.Civ.App., 1964, writ ref’d, n. r. e.), the Austin Court condemned, under the Roosth case, an issue which asked whether the hood latch assembly on an automobile was defective, since it “does not specify * * * which of the several mechanisms of the hood latch assembly failed to work.”

In the case before us, all of plaintiff’s allegations of negligence concerned the condition of a specific item on the stairway, i. e., the carpeting. The issue concerned itself with the condition of the stairway generally. Even under our decision in Querner, we cannot distinguish Roosth on the ground that the issue here named the specific item which plaintiff claimed was defective.

The nearest case in point seems to be J. C. Penney Co. v. Holmes, 378 S.W.2d 105 (Tex.Civ.App., 1964, rev’d, other grounds, 382 S.W.2d 472). There the trial court submitted three separate issues, each with corollary issues concerning negligence and proximate cause, relating to acts or omissions on the part of defendant. The first issue asked the jury to determine whether defendant had failed to provide plaintiff with a safe place to walk. In answer to the second issue, the jury found that defendant had maintained a loose metal strip on the edge of the step on which plaintiff had tripped. The third issue asked whether defendant had failed to exercise ordinary care in maintaining the metal strip on the edge of the step. The Dallas Court held that the first and third issues were too broad.

Although the Supreme Court reversed the judgment of the Court of Civil Appeals in the Holmes case, it specifically approved the holding of the Dallas Court to the effect that the first and third issues were too broad. After pointing out that plaintiff had offered only proof that the metal strip was loose and caught the heel of her shoe, causing her to fall, Mr. Justice Culver said, “As to that holding we agree.” Holmes v. J. C. Penney Co., 382 S.W.2d 472, 473 (Tex.Sup.1964). Although Justices Norvell, Steakley and Griffin dissented, they agreed that the issues in question were “global.” Thus, the Supreme Court was unanimous in its disapproval of the special issue which merely inquired whether defendant had failed to furnish a safe place for plaintiff to walk. The following language from the opinion of Mr. Justice Norvell (382 S.W.2d at p. 475) is pertinent:

“ * * * The broad general submission concerning a safe place to walk seems particularly prejudicial. Mere proof of an accident (using the term in its popular sense) is not proof of negligence. As Mrs. Holmes did not intentionally fall down, the fact that she did could well indicate that she must have been walking in an unsafe place, or could be so considered by a jury. The tendency of this form of broad submission is to effectively weaken the defendant’s theory of ‘no negligence’ on its part through use of an improper submission and pitch the battle (if any be remaining) upon the affirmative defense of contributory negligence.”

The Holmes case and the case before us are strikingly similar. We perceive no significant difference between an issue inquiring whether defendant failed to furnish plaintiff a safe place to walk and one which asks whether defendant failed to maintain a stairway in a reasonably safe condition. In Holmes the alleged act of negligence was the presence of a loose metal strip on the step. Here the alleged defect was the worn condition of the carpet. In Holmes plaintiff testified that her shoe had caught on the loose metal strip, causing her to fall. Here plaintiff testified that her shoe had caught in a hole in the carpeting, causing her to fall.

Despite expressions of displeasure because of the proliferation of special issues, there is little reason to hope that future decisions will encourage broad submission of issues in negligence cases. Certainly, the recent decision by our Supreme Court in Barclay, where the seemingly well entrenched “control” issue was declared anathema and cast into exterior darkness, is no indication of a trend in that direction.

Plaintiff’s objection to defendant’s offer of hospital records relating to plaintiff was properly sustained, since some of the records offered had no relevance whatever to any issue in this case. Since defendant made no effort to segregate the relevant from the immaterial, the objection was good, even though some of the records were admissible.

The judgment of the trial court is reversed and the cause is remanded for a new trial.


author: SELLERS, Justice.

text:
    Richard W. GORSALITZ et ux., Appellants, v. Dr. G. G. HARRIS, Appellee.
    No. 246.
    Court of Civil Appeals of Texas. Tyler.
    Dec. 15, 1966.
    Rehearing Denied Jan. 26, 1967.
    Second Rehearing Denied Feb. 16, 1967.
    John H. Holloway, Houston, for appellants.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Jerry V. Walker and Tom Normand, Houston, for appellee.
   SELLERS, Justice.

This is a suit by Richard W. Gorsalitz and wife to recover on a malpractice count against defendant Dr. G. G. Harris. We find this statement in Appellee’s Brief:

“The trial judge suggested the damage issues be separated in submitting this case to the jury so as to bring this lawsuit to a conclusion after four trials and one appeal, and both parties agreed.”

The former appeal of this case was to the Court of Civil Appeals at Houston and is reported in Volume 360 S.W.2d 574 where a full statement of the facts on that appeal will be found. The judgment appealed from there was from an instructed verdict for the defendant. The appeals court affirmed the judgment in their original opinion and then on Motion for Rehearing held :

“In their amended motion for rehearing appellants have called our attention to certain fact issues which we failed to consider in the foregoing opinion. There is ample evidence raising a fact issue as to whether the leaving of the root tip in Mrs. Gorsalitz’s gum or sinus constituted negligence on the part of appellee. We adhere to our original opinion that there is no medical testimony that any such negligence probably caused the conditions necessitating the closure of the sinus cavity and the damages resulting therefrom. On reviewing the record we have concluded, however, that there is testimony which would warrant findings that such negligence, if any, necessitated the operation to remove the root tip and was a proximate cause of damages resulting therefrom.
“There is evidence that in removing the root tip, appellee made an incision in Mrs. Gorsalitz’s gum and then sewed it up, and that she was in appellee’s office some 45 minutes to an hour and had to return three times before the stitches were removed. After the stitches were removed she was advised to see an oral surgeon to effect a closure of the sinus cavity. It is a matter of common knowledge that the operation for extraction of the root tip necessarily caused some pain or suffering, both physically and mentally. ⅜ ⅜ ‡»

Briefly stated, the facts on this appeal are that Mrs. Gorsalitz went to Dr. Harris on July 14, 1958 to have the upper right first molar tooth pulled. The doctor extracted this tooth and in doing so, left a root tip in the gum. In removing this tooth, Dr. Harris broke the floor of the sinus chamber which is not uncommon in removing this tooth according to Dr. Curl, the dental surgeon who testified in the case. Dr. Harris denied leaving this root tip in the gum of Mrs. Gorsalitz but the jury found that he did on ample evidence. After the removal of the tooth, Dr. Harris was able to effect a closure of the cavity from which the tooth was removed but not the bone tissue going into the sinus chamber. No further trouble was experienced by Mrs. Gorsalitz until in September 1959 when she went to Dr. Rosenbloom for dental work, and this doctor who testified on the trial found a root tip in Mrs. Gorsalitz’s gum and advised having same removed at once as it could cause trouble. Mrs. Gorsalitz then went back to Dr. Harris and advised him of what Dr. Rosenbloom had found, and Dr. Harris said he would remove the same. This he did, and thereafter was unable to effect a closure after the operation to remove the root tip. Dr. Harris then advised Mrs. Gorsalitz to go to Dr. Curl, a dental surgeon, to have the closure operation performed, this not being in Dr. Harris’ field of practice. It was some two weeks after this last extraction of the root tip before she was sent to Dr. Curl. Dr. Curl testified that it was proper practice for a dentist to try for some two weeks to effect a closure before sending the patient to a dental surgeon.

On October 13, 1959, Dr. Curl, aided by Dr. Lawrence, an Eye, Ear, Nose and Throat Specialist, performed the operation to close the opening made by Dr. Harris when he removed the root tip. At the time of this last operation, the sinus had become infected, and that was the reason that Dr. Lawrence was called in to help Dr. Curl with the operation. The operation was performed and the closure effected. There is no testimony by any of the five doctors who testified in this trial that Dr. Harris was in any way responsible for the infection that existed in Mrs. Gorsalitz’s sinus at the time of this last operation. The same doctor who testified on the first trial which was appealed to the Houston Court testified on this trial and we refer to the report of that case for a full statement of the evidence of the doctors on this trial. Two additional dentists testified on this hearing, but their evidence was largely cumulative of that given and reported in the other appeal. The first three issues submitted by the Court to the jury found that Dr. Harris did leave the root tip in Mrs. Gorsalitz’s jaw when he extracted her tooth and that this was negligence and was a proximate cause of an injury to her body. Special Issue No. 4 was as follows:

“What sum of money, if any, paid now in cash do you find from a preponderance of the evidence will fairly and reasonably compensate the Plaintiffs for the damages, if any, which have resulted from such injuries, if any, to the Plaintiff, Mrs. Pauline Gorsalitz, as you find from a preponderance of the evidence were directly and proximately caused by the Defendant leaving one of the root tips from her upper right first molnr, if you have found that he did so leave one of such root tips, taking into consideration such of the following elements of damage, if any, as you find or establish by a preponderance of the evidence, and none other:
“(a) Such physical pain, if any, as you find from a preponderance of the evidence was directly caused by the injuries, if any, to the Plaintiff, Mrs. Pauline Gor-salitz, as a direct and proximate result of the leaving of the root tip from her upper right first molar, if you have found that it was left?
“(b) Such mental anguish, if any, that you find from a preponderance of the evidence was directly caused from the injuries, if any, to the Plaintiff, Mrs. Pauline Gorsalitz, as a direct and proximate result of the leaving of the root tip from her upper right first molar, if you have found that it was so left ?
“Answer by stating the amount, if any, in dollars and cents.
“You are instructed, in connection with the foregoing Special Issue No. 4, that in arriving at the amount of money, if any, which would compensate the Plaintiffs for their damages, if any, you will not take into consideration or make any allowance for any hospital, doctor, dentist or medical expenses of any kind or character, and you are further instructed that' you will not take into consideration or make any allowance for any physical pain or mental anguish, if any, which were incurred in connection with the operation performed by Dr. Carroll A. Curl and Dr. Van L. Lawrence on or about the 15th day of October, 1959.”

The jury in answer to Special Issue No. 4 assessed the damage at $2,000.00 and no complaint is made on this appeal as to that verdict.

The Court then submitted Special Issue No. 5 as follows:

“Do you find from a preponderance of the evidence that leaving of such root tip, if you have so found, was a proximate cause of the condition which necessitated the operation of October 15, 1959 performed by Drs. Curl and Lawrence.”

This issue was answered in the affirmative, and the damages assessed by the jury in answer to Special Issue No. 6 were in the amount of $8,000.00. The appellee made a motion to disregard the answer of the jury to Issues Nos. 5 and 6 and to render judgment non obstante veredicto for appellee, denying the appellant the recovery of the $8,000.00 for the reason that there was no evidence that Dr. Harris, by leaving the root tip in Mrs. Gorsalitz’s jaw, caused the operations by Drs. Curl and Lawrence. This motion was granted by the Court and judgment was entered for Mrs. Gorsalitz and her husband for the sum of $2,000.00. From this judgment they have duly prosecuted this appeal.

The appellants’ first assignment of error is as follows:

“The trial court erred in granting Ap-pellee’s Motion for Judgment Non Ob-stante Veredicto and/or Motion to Disregard the jury findings to Issues 5 and 6 so as to deny Appellants $8,000.00 damages based upon jury findings supported by the evidence and pleadings.”

Appellants in their brief, set out this evidence of Dr. Curl as being sufficient to support the jury’s finding that the removal of the root tip caused Dr. Curl’s operation:

“Dr. Curl’s testimony in regards to the necessity for the operation, can be summarized by his testimony at page 191 of the Statement of Facts:
«‘Q. * * * Assuming that during the fourteen months Mrs. Gorsalitz had a complete closure of the gum ifi the area of the upper first molar—
Now, if that is true, and with this complete closure, would there be any necessity for the operation that you performed on her if that had not been opened again?
“ ‘A. No sir.
“ ‘Q. All right. So that your operation and the operation performed by Dr. Lawrence was solely caused because of the opening of that gum? Is that correct?
“‘A. Yes, sir.
“ ‘Q. That is your medical opinion, Doctor?....
“‘A. Yes, sir.’”

There can be no question but that the taking out of the root tip caused the operation (by Dr. Curl) to close the floor of the sinus, as the doctor has just above stated, but there is not a line of evidence by either doctor who testified that Dr. Harris did anything wrong in extracting the root tip, but the evidence is that it was proper for him to remove the root tip as he did, and further, when he was unable to secure a closure in two weeks, it was proper practice to send the patient to an oral surgeon to secure a closure, which he did.

It is well settled in this State that in order to recover for malpractice, there must be evidence by a doctor of the same school of medicine as the defendant that the diagnosis or treatment complained of was such as to constitute negligence.

The evidence in this case by all of the doctors is to the effect that this root tip which had been in Mrs. Gorsalitz’s jaw for better than a year and might have remained there for years without any injury to Mrs. Gorsalitz, yet they all agree that when it was discovered it was proper practice to remove the same. The hole in the floor of the sinus which Dr. Curl was called upon to close was a result of the pulling of the tooth by Dr. Harris. The root of the tooth had extended into the sinus chamber and when the tooth was removed, the flpor of the sinus chamber was left with a hole in the same. This is not uncommon according to Dr. Curl.

We have carefully reviewed the evidence of all of the doctors who testified and in our opinion there is no evidence to support the jury’s answer to Special Issues Nos. 5 and 6, and the trial court was correct in disregarding the same and rendering judgment for appellee. We are supported in this holding by the Court of Civil Appeals on the former appeal of this case. Gorsalitz v. Harris, 360 S.W.2d 574. Whatever error there might have been in the way the trial court submitted this case to the jury cannot be complained of on this appeal since the appellants’ counsel agreed to such submission. Reynolds et al. v. McMan Oil & Gas Co. et al., Tex.App., 11 S.W.2d 778.

Finding no error in the record, the judgment of the trial court is affirmed.


author: CULLEN, Commissioner.

text:
    Allen P. CUBBAGE, Executor of a Paper, etc., of John W. Clark et al., Appellants, v. Panzy GRAY et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 27, 1967.
    Richard E. Moorman, Cubbage & Cub-bage, Leitchfield, for appellants.
    Kenneth Goff, Leitchfield, Rhodes Bratcher, Owensboro, for appellees.
   CULLEN, Commissioner.

Probate of the will of John W. Clark was contested on the grounds of undue influence and lack of mental capacity. The jury found against the will and judgment was entered setting aside the county court order of probate. The contestees have appealed, asserting as their major contention that a verdict should have been directed in favor of the will.

Clark, an 82-year-old widower, owned a small farm and had a few thousand dollars in cash and securities. His next of kin were a daughter and two children of a deceased son, who were the contestants below and are the appellees here. By his will Clark left a one-sixth share of his estate to the daughter and a one-twelfth share to each of the two grandchildren. The remainder he left in designated shares to various nephews and nieces.

We think there was ample evidence to take the case to the jury. The lay evidence for the contestants would warrant findings that Clark:

1. Had an insane delusion that his daughter’s husband was threatening to kill him, and had stolen lumber from him.
2. Without justification had accused his son of stealing papers from him and his tenant of stealing feed.
3. Erroneously thought his fellow inmates in a rest home were stealing his clothing.
4. Thought he was “rich”.
5. On one occasion did not know the name or location of his bank.
6. Started giving his money away to his nephews, who had never been particularly close to him.
7. Spent considerable time and effort digging a hole or tunnel into a rocky hillside on his farm, in the belief that he would find gold or would discover a cave as large and as beautiful as Mammoth Cave.
8. Carried on conversations with sticks which he picked up at random; believed that the sticks answered his questions; and relied upon such answers in making decisions.
9. Had an unfounded belief that someone was stealing money from his bank account.

In addition to the lay testimony there was the testimony of the doctor who attended Clark during his declining years. The doctor testified that Clark was suffering from senile psychosis; that his mind had started deteriorating in 1959 (four years before the will was executed) and that the deterioration continued and progressed thereafter; that the doctor had advised the daughter to send Clark to a state mental institution; and that although Clark knew the natural objects of his bounty and that he owned a farm he was not mentally capable of “evaluation” of that knowledge, meaning that he could not judge properly his daughter’s relationship to him from the standpoints of care, devotion, etc., nor would he know the value of his property. The doctor had attended Clark in February and March of 1963 (the will was drawn in February) and he was firmly of the opinion that Clark was not mentally competent at that time.

We think the sufficiency of the evidence is patent. See Hines v. Price, 310 Ky. 758, 221 S.W.2d 673; Pardue v. Pardue, 312 Ky. 370, 227 S.W.2d 403; Prichard v. Kitchen, Ky., 242 S.W.2d 988; Nance v. Veazey, Ky., 312 S.W.2d 350.

The appellants maintain that the trial court erred in excluding, as protected by the attorney-client relationship, evidence as to conversations between Clark and his attorneys concerning the drafting of the will, when the two witnesses to the will were present. We agree that there was error. See Ratcliffe v. Commonwealth, 231 Ky. 337, 21 S.W.2d 441. However, no avowal was made as to what the evidence would have been, so we are unable to say that the error was prejudicial. See Byck v. Commonwealth Life Ins. Co., Ky., 269 S.W.2d 214.

The judgment is affirmed.


author: HILL, Judge.

text:
    Walter A. SEIDL, Appellant, v. Charles R. WILLEN et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 27, 1967.

      William Lehnig, Louisville, for appellant.
    John Frith Stewart, Louisville (Herbert L. Segal, Louisville, of counsel), for ap-pellees.
   HILL, Judge.

The Workmen’s Compensation Board overruled appellant-employer’s motion to make the Special Fund a party. Appellant attempted to appeal to the circuit court, where a judgment was entered dismissing the attempted appeal without assignment of any reason therefor. The appeal to this court followed.

Only one question is presented, and it is whether an order of the Workmen’s Compensation Board refusing to make the Special Fund a party has such finality as to be appealable before the whole case is tried on the merits.

Provision is made by KRS 342.120(1) that:

“A claimant may in the original application for benefits, or either party may by motion while the case is pending, accompanied by proper allegations, and the board shall upon its own motion at any time before the rendition of the final award, cause the Subsequent Claim Fund to be made a party to the proceedings if either or both of the following appears:
(a) The employe is disabled, whether from a compensable injury, occupational disease, pre-existing disease, or otherwise, and has received a subsequent com-pensable injury by accident, or has developed an occupational disease * *

The only statute dealing with appeals from orders of the Board is KRS 342.285, and it relates to final orders of the full Board.

Appellant contends the order refusing to authorize the joining of the Special Fund as a party is a final order and therefore is an appealable one.

Inasmuch as this specific question has not been heretofore answered by this court, we examine the reasons pro and con to determine whether such an order has the elements of finality to constitute an appeal-able order.

First, the statute dealing with the Special Fund does not provide for an appeal. Also by authority of KRS 342.125, the Board is given broad power over its own orders and awards and may “at any time review any award or order.” Of course, these broad powers do not affect an appeal prosecuted pursuant to KRS 342.285.

We can think of one — and only one — reason for treating an order such as is being considered here as a final order, and that reason is the importance to the administrator of the Special Fund that he be a party before the case is finally prepared and tried on the merits so that he may participate in the litigation. This is a good reason, but the statute does not so provide, and there are other reasons we consider more important for treating such order as interlocutory and not appealable. What are the “other reasons”?

Compensation proceedings, unlike suits based on negligence for death, disability, and pain, are intended to take care of lost or disabled industrial workers and “their dependents,” and it is important to society that such proceedings be determined speedily and expeditiously without multiplicity of action or remedy. In the event a disabled worker or his dependents must, as in this case, await the trial of his claim by piecemeal through the circuit court and then through this court on every objectionable order of the Board, regardless of the element of finality, great hardship may result. We consider it a better policy that all the issues be determined by the Board in its final order and a one-package appeal provided therefrom.

The judgment is affirmed.


author: OSBORNE, Judge.

text:
    COMMONWEALTH of Kentucky ex rel. Dorothy Marie MURPHY, Appellant, v. Warren Blaine MOREHEAD, Appellee.
    Court of Appeals of Kentucky.
    Jan. 27, 1967.
    R. Barry Wehrman, Covington, for appellant.
    John R. S. Brooking, Covington, for ap-pellee.
   OSBORNE, Judge.

This is a bastardy proceeding which was originally tried on the 18th of May, 1963 in the Campbell Circuit Court before a jury. The jury returned its verdict finding that the respondent, Warren Blaine Morehead, was the father of the child in question but did not fix an amount for him to pay for support of the child.

Following the trial in the county court, appellant filed with the circuit court a certified copy of the judgment in the case and had issued therein summons. Respondent then appeared and filed his motion to dismiss the appeal for the reason that appellant had not filed with the judgment a statement of the costs accrued in the county court as required by CR 72.01. The Campbell Circuit Court dismissed the appeal. We are of the opinion that the court could not do otherwise. CR 72.01 states as follows:

“A party appealing from a quarterly court, county court, police court, city court, or a court of a justice of the peace, shall file with the clerk of the court to which the appeal is taken a certified copy of the judgment and the amount of costs, and cause to be executed before him, by one or more sufficient sureties to be approved by him, a bond to the effect that appellant will satisfy and perform the judgment that shall be rendered upon the appeal * *

This matter of appeal from the actions of the county court in bastardy proceedings has twice been before this court. In White v. Commonwealth ex rel. Feck, Ky., 299 S.W.2d 618, we held that a bastardy proceeding is civil in nature and, therefore, the civil rules of procedure govern the method of taking an appeal. Again, in Pendleton v. Commonwealth ex rel. Rawlins, Ky., 349 S.W.2d 832, we held that the method of taking an appeal in a civil proceeding from the judgment of a county court must comply with the provisions of Civil Rule 72.01 and that this was applicable to bastardy proceedings. In this latter case, we dismissed an appeal because a copy of the judgment was not certified as required by the Civil Rules. As the appellant in this case did not file a statement of the costs accrued as required by the Civil Rules of Procedure, the circuit court had no alternative but to dismiss her appeal.

For these reasons, it is our judgment that the action of the trial court should be affirmed.


author: DAVIS, Commissioner.

text:
    James H. POLSGROVE, Appellant, v. COMMISSIONERS OF the SINKING FUND OF the CITY OF LOUISVILLE, Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Jan. 27, 1967.
    Rudolph V. Binus, Louisville, for appellant,
    Edwin H. Perry, Louisville, for appellee.
   DAVIS, Commissioner.

The appellant, James H. Polsgrove, has undertaken an appeal as a matter of right from a judgment against him in the sum of $537.57. In his statement of appeal the appellant has recited:

“The jurisdictional amount in controversy is not an issue on this appeal since said appeal is under KRS 21.060(b) in that said appeal cannot be adjudicated without construing a statute or section of the Constitution.”

The appellee has made timely motion to dismiss the appeal on the ground that the sum in controversy is less than $2,500 and the appeal has not been prosecuted on motion pursuant to KRS 21.080 and RCA 1.180.

It is at once apparent that the appellant has misconstrued KRS 21.060. It is noted that reference is made in the statement of appeal to KRS 21.060(b) ; the reference should have been KRS 21.060(2) (b) which provides:

“(2) If the value of the amount or thing in controversy, exclusive of interest and costs, is as much as two hundred dollars, the Court of Appeals may grant an appeal from the judgment or final order of a circuit court when: * * *
“(b) The correct decision of a case cannot be had without construing a statute or section of the constitution.”

It is seen that this court may grant an appeal in the circumstances set forth in the quoted statute; this does not mean that an appeal is to be taken as a matter of right in such cases. On the contrary, the litigant seeking appellate review in such state of case is to proceed by motion pursuant to KRS 21.080 and RCA 1.180.

Appellant contends that he is entitled to prosecute the appeal as a matter of right pursuant to the authority of Commonwealth ex rel. Allphin v. Sandmann, Ky., 280 S.W.2d 155. Appellant asserts that the validity of a taxing ordinance is challenged on this appeal, hence the rationale of Sandmann rules the case. We are not so persuaded.

This litigation originated in the Jefferson Quarterly Court upon the complaint of the Commissioners of the Sinking Fund of the City of Louisville against James H. Pols-grove, in which the Commissioners averred that Polsgrove owed license fees for the years 1961, 1963, and 1964 aggregating $534.73. The complaint stated that Pols-grove had duly filed returns for the years in question, reflecting his tax liabilities in the respective amounts alleged, but that he had failed to pay the sums shown to be due.

In his answer and counter-claim filed in the quarterly court, Polsgrove admitted that he had filed the returns showing the stated tax sums as due, but insisted that he was entitled to a credit in the sum of $400 for “coerced labor in contravention of the Constitution of the State of Kentucky and the United States.” The validity of the taxing ordinance is not challenged. There is nothing in the Sandmann opinion which lends support to the proposition that an appeal may be taken as a matter of right merely because the recovery is related to liability for a tax. The Sandmann case dealt with the construction of a statute as it related to claiming exemption for a dependent child. Moreover, it was observed in Sandmann that taxation problems are of great public interest and of extreme importance to the Commonwealth so that questions in that field may be said to be not translatable into monetary value. That principle is not applicable in the case before us. In Sand-mann there was no appellate review available by motion, but in this case such review was available.

The avenue of appeal pursuant to motion, as prescribed by KRS 21.080 and RCA 1.180, was open to appellant, but he did not pursue it. Accordingly, the appeal must be and is dismissed.


author: MONTGOMERY, Judge.

text:
    David Earl WILSON, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Jan. 27, 1967.

      David Kaplan, Stuart Lyon, Louisville, for appellant.
    Robert Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., Frankfort, for ap-pellee.
   MONTGOMERY, Judge.

David Earl Wilson, Jr., was convicted of knowingly receiving stolen property and sentenced to five years’ confinement. Wilson was tried jointly with Joseph Isaac Clayton and David Howard Johnson, who were convicted of storehouse breaking. Wilson appeals. He contends that the trial court erred in commenting on the evidence and in questioning the appellant when he was on the witness stand; the prosecutor was guilty of improper argument; and an oral statement of appellant’s was improperly admitted.

The claimed improper conduct of the judge is based on portions of the record, as set forth in appellant’s brief. The quoted portions have been read in full context from the record, which accords a more complete meaning and a better understanding.

The first comment was merely an admonishment to counsel not to argue with the witness. The second statement was at the bench and out of the jury’s hearing. It concerned a statement made by Clayton, a joint defendant.

The third comment and questions by the trial judge occurred during the cross-examination of appellant concerning when he had learned that the property received by him was “hot.” The judge’s comment and questions followed an assertion by appellant’s counsel that appellant had already been asked and had answered five times that the articles received were new. The record reveals that appellant had been evasive in his answers on this point prior to the complained-of conduct. When read in proper context the judge’s action was merely an effort to obtain an answer from appellant as to when he had learned the articles were new. Wilson finally answered, “After I found they were hot.”

The fourth complained-of action of the judge consists of simple interrogations as to when and from whom appellant learned the articles were “hot” and why he then called the police.

During the argument by appellant’s counsel to the jury, a colloquy between the trial judge and appellant’s counsel occurred after appellant’s counsel misconstrued an instruction given.

Later, counsel for appellant objected when the prosecutor stated that the counsel for appellant, had he so desired, could have subpoenaed a certain witness. Counsel questioned the correctness of the trial judge’s statement that appellant’s counsel could have subpoenaed the absent witness.

The complained-of actions of the trial judge have been examined, as indicated, in the light of the limitations imposed by Merritt v. Commonwealth, Ky., 386 S.W.2d 727, and Davidson v. Commonwealth, Ky., 394 S.W.2d 911, as well as by Collins v. Sparks, Ky., 310 S.W.2d 45. The serious responsibilities of a judge presiding at a trial are set forth at length therein. While the trial judge may have become irritated by the conduct of appellant’s counsel, or at the evasiveness of the appellant, his conduct does not indicate anything prejudicial toward appellant. Much of what is complained of was evoked by or was in response to appellant’s counsel. While a trial judge cannot sit mute, he must not allow himself to be “baited” into error. His questioning of the appellant was an effort to ascertain a pertinent fact in the case from an evasive witness. No reversible error is found in the conduct of the trial judge. Taylor v. Commonwealth, Ky., 403 S.W.2d 713.

Appellant complains of the prosecutor’s argument that “ * * * we cannot have men and boys going around breaking in places. They break in homes, they break in stores * * It is contended that this argument was improper under Brown v. Commonwealth, Ky., 357 S.W.2d 681. Brown is distinguishable on the ground that there the argument went outside the record and contained a recitation of criminal statistics. Here the argument is nothing more than a general denunciation of crime, which is permissible. Fields v. Commonwealth, 275 Ky. 136, 120 S.W.2d 1021; McGee v. Commonwealth, Ky., 395 S.W.2d 378.

It is urged that certain statements indicative of guilt made by appellant to the police should not have been admitted. While comfort is sought from Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L. Ed.2d 977, and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, neither is available here.

Appellant made the statements to the police voluntarily after he had called the officers and at a time when he was not in custody. The trial court inquired into the voluntariness and admissibility of the statements at a hearing in chambers. No record of this proceeding is presented. In such case the presumption is that the evidence heard supports the court’s decision on admissibility. Lawson v. Commonwealth, Ky., 403 S.W.2d 281. A spontaneous, voluntary admission before being placed in custody is admissible. Carson v. Commonwealth, Ky., 382 S.W.2d 85, cert. denied 380 U.S. 938, 85 S.Ct. 949, 13 L.Ed.2d 825; Rowe v. Commonwealth, Ky., 394 S.W.2d 751; Smith v. Commonwealth, Ky., 402 S.W.2d 686. The statements were correctly admitted.

Miranda is available neither in principle nor retroactively. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882.

Judgment affirmed.


author: MILLIKEN, Judge.

text:
    Ben BYRD, Appellant, v. UNITED STATES STEEL CORPORATION et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 27, 1967.
    C. W. Napier, Jr., Hazard, for appellant.
    William A. Rice, Harlan, Stuart E. Alexander, Frankfort, for appellees.
   MILLIKEN, Judge.

This is an appeal from a judgment affirming an order of the Workmen’s Compensation Board dismissing the claim of appellant, Ben Byrd, for total permanent disability compensation for silicosis, asserted against the appellees, United States Steel Corporation and the Special Fund.

Appellant was employed by the appellee company from 1925 until June 1962 when the section of the mine in which he worked was shut down. He loaded coal, drilled with a jack jammer, cleaned tracks, and served at various times as a rock duster, timber man and foreman. In March 1963, he learned from a physician that he was afflicted with an occupational dust disease, and he informed his employer thereof on May 30, 1963.

All of the physicians who have examined the claimant appear to agree that he is either totally or partially disabled; they do not agree, however, as to the cause of his disability. The physicians testifying for the claimant state that the X-rays they made of him reveal that he has silicosis. A contrary conclusion was reached by the physicians who examined him for the company; they found among other things that he is suffering from hypertensive cardiovascular disease. Dr. Anderson, a specialist in pulmonary diseases, was appointed by the Board to help it resolve the conflict in the medical testimony, and that physician concluded after a thorough examination of the claimant that he hhd no silicosis or work-connected occupational disease, but was suffering from cardiovascular disease which accounted for all his symptoms.

It is well established that when medical opinion evidence regarding a compensation claimant is in direct conflict, the decision of the Workmen’s Compensation Board is conclusive. Ky.Digest, Workmen’s Compensation, <©==>1939. That the opinions of the defense physicians and the appointed physician were not essentially inconclusive as contended by the claimant, is revealed by the following testimony :

Question to Dr. Henry F. Warden, Jr. (Bluefield, W. Va.):

Q- “Doctor, in your opinion, does this man have any occupational disease of any kind?”
A- “In my opinion he does not have any form of occupational disease.”

Question to Dr. S. G. Davidson (Blue-field, W. Va.) :

Q- “Dr. Davidson, in your opinion, does this man have silicosis?”
A- “He does not.”

Question to Dr. William H. Anderson (Louisville), the Board appointed physician :

Q- “Did you find, Doctor, that the plaintiff is suffering from any disease of an occupational nature such as silicosis, pneumoconiosis, anything of that nature ?”
A- “No I did not find evidence on the basis of this examination of any silicosis, pneumoconiosis or occupational disease.”

Thus, as in Horton v. United States Steel Corp., Ky., 384 S.W.2d 73, this is not a case where the defense testimony is inconclusive but a case where the defense medical testimony was in direct conflict with the claimant’s. Consequently, the judgment of the circuit court sustaining the decision of the Workmen’s Compensation Board is affirmed.