text:
    GENERAL TELEPHONE COMPANY OF KENTUCKY, Appellant, v. Alma BLEVINS, Next Friend of Bobby Blevins, a Person under 21 Years of age, Fred Hicks, David Alderman, Individually, and David Alderman, d/b/a the Alderman Company, and John Riggs, Appellees.
    Court of Appeals of Kentucky.
    March 31, 1967.
    Petition for Rehearing Dismissed May 25, 1967.

      Charles S. Sinnette, Yager & Sinnette, Ashland, for appellant.
    William T. Walton, MacDonald & Walton, Flemings burg, James Clay, Thomas Burns, Morehead, Charles Landrum, Jr., Lexington, for appellees.
   CULLEN, Commissioner.

General Telephone Company of Kentucky appeals from a judgment for $3,-929.01 in favor of Bobby Blevins, an infant (who sued through his mother as next friend), as damages for personal injuries sustained by Bobby through the alleged negligence of General. In the court below Bobby also had sought recovery against Fred Hicks, David Alderman and John Riggs, and General had cross-claimed against them for indemnity or contribution. The trial court did not instruct on indemnity or contribution and the jury found for these three defendants on Bobby’s claim, wherefore the judgment dismissed the claims against them. General has named Hicks, Alderman and Riggs as appellees but does not seek any relief as concerns them, and Bobby has not cross-appealed to seek relief against them, so the judgment as to them will be affirmed.

General’s claims of error are thac it was entitled to a directed verdict and that the instructions were erroneous.

Bobby’s injuries resulted from an unusual sequence of events. There was evidence (though contradicted in several respects) that this is what happened: General owned a telephone pole which stood in the edge of the yard of a dwelling in a rural area. The pole had been used in rendering telephone service to the dwelling but the dwelling had not been occupied for a year before the accident and the lead-in or service wire from the pole to the dwelling had been taken down. However, a “drop line” was left in place running from the telephone pole across the highway to a connection on a REA pole which carried high voltage electric power lines. The latter pole stood in the yard of the Blevins’ home.

Fred Hicks had purchased the house in whose yard the telephone pole stood, and he planned to move it to another location, by loading and carrying it on a “lowboy”' trailer. In surveying the situation he concluded that the telephone pole would stand in the way of moving the house. Accordingly he called General’s local office and discussed the problem with the manager. The latter said that he would send a crew to remove the pole, but if the crew did not arrive by the planned moving hour of 2 p. m. Hicks could “knock the pole over” himself. Hicks reminded the manager that there was a wire running from the pole across the highway but the manager said that it was a “dead” wire and not to worry about it.

The lowboy unit, owned by David Aider-man and operated by John Riggs, arrived at the scene around 2 p. m. No telephone crew had appeared so at Hicks’ direction Riggs knocked down the telephone pole by backing a tractor against it. Riggs testified that he did not notice the wire either before or after knocking down the pole. However conditions subsequently developing indicated that the wire broke from the pole when it was knocked down and whipped across the highway upon or in close proximity to the high voltage wire on the REA pole.

There were no indications of any trouble for several hours but around 8 p. m. Bobby Blevins, who had been watching television in his home and noticed a “roll and flicker” in the set, went out in his yard with the purpose of rotating the television antenna pole. It was dark and had been raining. He observed a wire hanging down near the house which he assumed was the lead-in wire from the antenna. He picked. up the wire and was severely shocked and burned. Subsequent investigation indicated that the telephone drop line was lying across the electric wires and it was either one end of that wire, or one end of one of the electric wires that had burned in two and fallen to the ground as a result of being shorted by the drop wire, that Bobby had picked up.

General maintains that it was entitled to a directed verdict because there was no proof of negligence on its part. However, we think there was proof of negligence in the evidence that General, with knowledge that a wire on its pole was attached to a pole carrying a high voltage line, authorized an inexperienced person to knock down its pole, without taking precautions to guard against the drop wire’s coming in contact with the high voltage line.

It is a well-settled rule of the common law that a person who authorizes use of a dangerous instrument or article in such a manner or under such circumstances that he has reason to know that it is likely to produce injury, is responsible for injuries proximately resulting therefrom. See Shell v. Town of Evarts, 296 Ky. 602, 178 S.W.2d 32; 38 Am.Jur., Negligence, sec. 85, p. 743. Here the drop wire was so situated as to be an extremely dangerous article to handle, and General authorized its being handled or dealt with in a manner from which injury might be anticipated to occur. We conclude that General was not entitled to a directed verdict.

General’s second contention is that the instructions were erroneous, and in this we agree. The jury found against General under Instruction No. 3, which authorized a finding against General “if you believe from the evidence that the defendant General Telephone Company by leaving its drop line attached to the telephone •pole on the premises where the house was removed, if it did so, created a dangerous situation and that as a direct and proximate result of said negligence, if any, on the part of the defendant Telephone Company the plaintiff was injured * * This instruction authorized the jury to find against General from the mere fact of its having left the drop wire in position, even though the jury did not believe Hicks’ contradicted testimony that General’s manager gave him authority to knock down the pole, wire and all. We think this instruction is erroneous because the mere leaving of the wire in position was not and could not have been a proximate cause of the accident to Bobby Blevins. The wire, if left alone, was not a source of danger, and General was not chargeable with anticipation that some unauthorized person would knock the pole down and break the wire under tension so as to cause it to whiplash. We think the drop wire’s position was merely a condition and not a cause. Dixon v. Kentucky Utilities Company, 295 Ky. 32, 174 S.W.2d 19, 155 A.L.R. 150.

The trial court gave an instruction, which the jury did not follow, on the issue of agency. It is our opinion that this instruction was improper because the evidence did not warrant a finding that Hicks, Aider-man and Riggs knocked down the pole for and on behalf of General. On the contrary, the evidence was that they knocked it down on their own behalf simply with permission of General.

Upon another trial, if the evidence is substantially the same, the issue of liability of General should be submitted under an instruction predicating liability upon a finding that General authorized Hicks to knock the pole down. (There would be no issue of whether General exercised reasonable care to prevent injury after having given such authorization, because admittedly General did nothing.)

The judgment as against General Telephone Company is reversed, with directions for further proceedings in conformity with this opinion; to the extent that the judgment exonerates the other defendants it is affirmed.

All concur.


source: Caselaw Access Project

author: HILL, Judge.

license: Public Domain

text:
    Aloha Lee SHARP, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 12, 1967.
    Robert J. Watson, Watson & Watson, Middlesboro, for appellant.
    Robert Matthews, Atty. Gen., Darryl T. Owens, Asst. Atty. Gen., Frankfort, for ap-pellee.
   HILL, Judge.

This is an appeal from a judgment of conviction of the crime of driving a motor vehicle while intoxicated, prohibited by KRS 189.520 and penalized by KRS 189.990, in which punishment was fixed by the jury at a fine of $150.

Appellant complains that her constitutional rights were violated by the claimed refusal of the arresting officer to provide a “sobriety test” for her; by her imprisonment in the county jail for two hours before she was permitted to telephone her attorney; and by the refusal of the circuit court to order the return of her cash bond, posted in the county court.

On Sunday, March 14, 1966, appellant left her home in Hamilton, Ohio, early in the morning for her former home in the Clear Fork of Yellow Creek section of Bell County. Her only company was her small dog, ordinarily an inseparable and enjoyable companion. But for some time before making a roadside stop south of Mt. Vernon in Rockcastle County, the little dog had been an “annoyance” to her to such an extent that the stop was made necessary.

During her journey through Rockcastle County, State Trooper Dannie Coleman, accompanied by Deputy Sheriff Frank De-bord, received a radio message from the State Police Post at Richmond, Kentucky, and was told by a passing motorist that a car fitting the description of appellant’s was being driven south in a reckless and erratic fashion. These two officers met appellant seven miles south of Mt. Vernon. They turned the car in which they were traveling around and overtook appellant where she had stopped to pacify her dog. She was asked to get out of her car, which she did.

The officers testified they detected a strong alcoholic odor emanating from the person of appellant; that she staggered; that she was “slurring” her words and was “thick tongued”; that when they first observed her driving south, she was partly on the wrong side of the center line of the highway; that “there was six cans of beer, one can about half full and two empties and a six pack carton the paper they come in” found in appellant’s automobile; that there also was found “two empty six packs that the beer was gone from”; that the cans contained Schlitz, intoxicating beer.

Aloha denied she was drunk or drinking. She requested a “sobriety test.” The officers testified that they told her they knew nothing of such a test but would take her to the hospital for a blood test to determine the alcoholic content of the blood, and she said “there wasn’t nobody sticking no damn needle in her arm.” She testified the state trooper inquired of the deputy sheriff whether there was one of those needles in the glove compartment, but when asked specifically whether she made the statement regarding the “damn needle,” she replied: “Well, frankly, when he said that, I really don’t know what I said to him.”

Counsel for appellant have ably presented in their brief the interesting question, whether a person charged with driving a motor vehicle while intoxicated has a right to demand a blood test provided for by KRS 189.520. This court has not specifically answered this question, and we do not answer it nowr for the simple reason we find Aloha did not make a proper demand for the only “sobriety test” available in this State. There is respectable authority for the proposition that if the request for “sobriety test” is reasonably and properly made, the person is entitled to it. See In re Newbern, 175 Cal.App.2d 862, 1 Cal.Rptr. 80, 78 A.L.R.2d 901 (1959); State v. Munsey, 152 Me. 198, 127 A.2d 79 (1956) and In re Koehne, 54 Cal.2d 757, 8 Cal.Rptr. 435, 356 P.2d 179 (1960). All of these cases hold that the request must be reasonable under the particular circumstances of each case. What may be reasonable in one locality may not necessarily be reasonable in another. The availability of the test is important. It should be kept in mind that there is no duty on the part of the arresting officer to produce evidence for the accused person, only that he (the arresting officer) does not obstruct or prevent the accused in search of evidence so long as that search (request for “sobriety test” in the present case) is reasonable. The request is considered unreasonable if it is inconsistent with safe custody, if it is unavailable with reasonable effort or, in some cases, if the party requesting the test does not propose to pay for it. We do not have to climb any of these mountains in the present case for the obvious reason that we conclude from the evidence appellant refused the only reasonable and available test.

The next and only other question worthy of note is the appellant’s contention that her constitutional rights to counsel were violated. She requested the arresting officers and the jailer to allow her to call her attorney. The arresting officer refused her request, he said, due to her condition. The jailer testified he delayed granting her request to call her attorney for two hours from the time of her imprisonment due to her conduct. He testified:

“Well she just kicked that door and kicked it and kicked it and kicked it and she wanted out and I said, I can’t let you out and she said, she wanted to make a phone call, and I said I’ll let you make a phone call when you calm down a little.”

Under the facts of this case, we find no unreasonable delay in allowing' appellant to call her attorney. Furthermore, there was no prejudice from the two-hour delay in calling her attorney. Wilson v. Commonwealth, Ky., 403 S.W.2d 705 (1966).

The complaint that the circuit court erred in delaying the return of her cash bond posted in county court, we think, is without merit.

The judgment is affirmed.

All concur.


author: STEINFELD, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Thomas REED, widower, Appellee.
    Court of Appeals of Kentucky.
    May 5, 1967.
    Robert F. Matthews, Atty. Gen., H. C. Smith, Sp. Asst. Atty. Gen., Dept, of Highways, Frankfort, L. A. Faurest, Faurest & Collier, Tildón H. McMasters, Elizabeth-town, Paul Hunley, Law Division, Dept, of Highways, Frankfort, for appellant.
    E. E. Hubbard, John S. Kelley, Fulton, Hubbard & Kelley, Bardstown, for appellee.
   STEINFELD, Judge.

To acquire a right of way for the Blue Grass Parkway and for the realigning of a Nelson County Road two condemnation actions were brought in the Nelson County Court. Thomas Reed, the appellee, was the owner of the farm which included both tracts of land. The commissioners appointed in the county court valued the 18½ acres being taken, at a total of $5,820.00 and the damage to the remaining land at $5,-000.00. Accordingly, a judgment was entered in favor of Reed from which both parties appealed to the Nelson Circuit Court. The two cases were consolidated and tried together. The jury found the value of the farm before the taking to be $38,000.00 and the value thereafter to be $25,050.00 whereupon the court entered judgment for $12,950.00 from which the Commonwealth appeals.

The evidence showed that the Reed farm is about five or six miles from Bardstown and from Bloomfield. It is located about one-half mile southeast of U. S. Highway 62. Before the taking the farm contained 140 acres and various improvements. It had a tobacco base of about three acres. The land was generally level with some rolling ground and the farm was almost completely in grass. It was used primarily for raising cattle.

The right of way taken divided the farm so that approximately 47 acres and the tobacco barn were located on one side of the limited access parkway, while on the other side, there were approximately 75 acres and all of the other improvements. The Commonwealth built an access road so that after the taking it was possible by traveling approximately two miles to go from one tract to the other.

Although the Commonwealth stated in its brief that the question presented is “Does the evidence in the case support the verdict of the jury”, it also argues that the award is excessive.

On its claim that the verdict is not supported by the evidence it contends that the witnesses for the landowner did not testify as to the basis on which they fixed their valuation. It is admitted by the Commonwealth that the award was within the price range stated by the witnesses who testified for Mr. Reed. The Commonwealth cites four cases in support of its position; however, it is our opinion that this action is controlled by the rule announced in Commonwealth, Department of Highways v. Brubaker, Ky., 375 S.W.2d 404, 405 wherein we said:

“The real burden of the Commonwealth’s challenge against the landowners’ valuation evidence is that it did not rest on comparable sales. This is an oft-recurring argument which we have answered in several recent decisions handed down since the earlier cases, such as this one, were briefed. Under the principles set forth in Commonwealth, Department of Highways v. Tyree, Ky., 365 S.W.2d 472 (1963), there can be no real question as to the competency and sufficiency of the testimony questioned in this case.”

In addition to the owner, three witnesses testified for him as to the value of the land. One stated that he was familiar with the value of the land in the vicinity and generally in that county and that he had attended many sales and knew the sale price property brought. Another was a real estate broker, active in the vicinity who appraised for many lending institutions. He stated that he had personally dealt in property of the type being taken and that he' had bought and sold for himself and for others for many years. Another, who too was a real estate broker, stated that he regularly appraised land and that his appraisals were accepted by the leading lending institutions. He explained a sale of land in the vicinity which he considered comparable and stated that he had used that sale price, as well as other sales, in fixing the value of the land being taken. In Commonwealth, Department of Highways v. Vaughn, Ky., 390 S.W.2d 146, we said: “In determining whether the judgment is excessive and whether it is based upon adequate evidence, the qualifications of the landowners’ witnesses as well as what they say must be considered,” Obviously, the witnesses were qualified.

The verdict of the jury, which was substantially below the differences in valuation fixed by the two real estate brokers, is supported by a sufficiency of credible testimony of probative value. Commonwealth, Department of Highways v. Tyree, Ky., 365 S.W.2d 472; Commonwealth, Department of Highways v. Harvey, et al. Ky., 396 S.W.2d 311. It was within the range of values established by the testimony and must be sustained unless it is found to be excessive. Commonwealth, Department of Highways v. Cooper, Ky., 397 S.W.2d 47.

The Commonwealth argues that the award was based upon sentimental reasons because the owner was 86 years of age and his eyesight was going bad. We find nothing in the record to indicate that the verdict is so clearly excessive that we may disturb it. Commonwealth, Department of Highways v. Shields, Ky., 411 S.W.2d 476.

The judgment is affirmed.

All concur.


author: MONTGOMERY, Judge.

text:
    Cecil ROSE, Appellant, v. ACME WRECKING COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    May 12, 1967.
    Thomas D. Shumate, Shumate, Shumate & Flaherty, Richmond, for appellant.
    W. R. Patterson, Jr., Denney, Landrum, White & Patterson, Lexington, for appel-lees.
   MONTGOMERY, Judge.

The dispositive question is whether the circuit court was justified in setting aside the Workmen’s Compensation Board’s award because of the insufficiency of evidence to support it.

Cecil Rose had worked for the Acme Wrecking Company for some three years when, he claims, he suffered an injury to his back while lifting a garage door. He has a fourth-grade education and is untrained and unskilled to earn a living except by the doing of manual labor. The Board found that “as a result of the traumatic injury the plaintiff (Rose) sustained on March 3, 1965, the plaintiff suffered a period of total temporary disability but the duration of this cannot now be determined.” The award was for a weekly payment “so long as he remains disabled, not to exceed 425 weeks from March 3, 1965,” plus interest and benefits.

Rose was treated by various doctors and was hospitalized at different times. The question is whether there is sufficient evidence to sustain the finding of total temporary disability.

The Board considered Rose’s testimony and that of Dr. K. Armand Fischer in claimant’s behalf, and considered the testimony of Drs. Carl M. Friesen and Ralph J. Angelucci in behalf of the employer. “In view of the conflicting medical testimony,” as the Board’s opinion recites, Dr. W. C. Mitchell was appointed under the provisions of KRS 342.115. He made an examination of Rose and filed a report. His deposition also was taken.

The claimant testified to his injury and claimed that by reason thereof he was no longer able to lift heavy objects as his employment required, and that he was not able to do any kind of work.

Dr. Fischer testified that at the time of his examination on August 3, 1965, Rose was not able to “perform work involving heavy, physical, manual labor.” He was unable to say how long the condition would continue. His diagnosis was based on “complaint of pain, loss of back motion, and downward shifting of the lower lumbar facettes (sic).”

On cross-examination he gave the following prognosis:

“Well, I think that the man, if had a brace, and could rest for a while, he might be able to go back to some light type of work in a few months, but I wouldn’t suggest he go back to heavy work for quite a while.”
“I thought with orthopedic treatment, I thought that he ought to be amenable to relieving his pain. Whether he ever goes back to heavy labor and work, I can’t say that.”

Dr. Friesen testified that there were no significant neurological findings and that “I do not feel that this patient exhibits the findings of any severe impairment in function at this time of the low back.” Dr. Angelucci said that his examination revealed no neurological disorders which would prevent Rose from working. He declined to say whether there was any injury to the musculature or ligamentous system.

Dr. Mitchell said Rose probably had a chronic back sprain, without indicating its origin. He said overriding chronic anxiety concerning permanent injury appeared to contribute to the severity of Rose’s symptoms and complaint. The only significant findings by him were “some tenderness in his back and some pain with passive manipulation or motion,” but he found no indication of permanent disability. He felt that Rose could return to work with a support or brace for his back, medication, and the proper motivation.

The fair purport of the testimony is that Rose suffered a disability which was total and temporary in nature. Dr. Fischer’s testimony supports Rose’s testimony in this respect. Dr. Mitchell’s testimony indicates that there was an injury of temporary nature. Dr. Friesen’s statement concerning no “severe impairment in function * * * of the low back” connotes some impairment less than severe. Dr. Angelucci declined to say whether there was any injury to muscles or ligaments. Such evidence is sufficient to support the Board’s finding of total temporary disability and the ensuing award. Knott County Board of Education v. Williams, Ky., 348 S.W.2d 715; Deby Coal Company v. Roark, Ky., 360 S.W.2d 511; Imperial Elkhorn Coal Company v. Newsome, Ky., 382 S.W.2d 864. The evidence being sufficient, the award will not be disturbed. The Mengel Co. v. Lehman, Ky., 259 S.W.2d 19; J & R Coal Company v. Carter, Ky., 382 S.W.2d 875.

While Acme complains of a brief filed before the Board by appellant, which has not been read or considered by this court, it is doubted that it contained the eloquence or power of persuasion attributed to it. Doubtless the Board has long since become immune to eloquence. No prejudicial error is found in this respect. It is unnecessary to consider any other question raised.

Judgment reversed with direction to approve the Board’s award.

All concur.


author:
DAVIS, Commissioner.
      MONTGOMERY, Judge,

text:
    Loyd WIMSATT, Executor of the Will of Thomas M. Carrico, deceased, Appellant, v. HAYDON OIL COMPANY et al., Appellees. Loyd WIMSATT, Executor of the Will of Thomas M. Carrico, deceased, Appellant, v. W. Earl DEAN et al., Appellees.
    Court of Appeals of Kentucky.
    March 3, 1967.
    Rehearings Denied June 9, 1967.

      Henry D. Hopson, Hamilton, Hopson & Hamilton, Louisville, for appellant.
    Robert M. Spragens, Lebanon, H. M. Grigsby, Springfield, for appellees.
   DAVIS, Commissioner.

These consolidated cases arose from a motor vehicle accident which occurred December 13, 1962. A passenger car, owned and operated by Thomas Carrico, in which his wife was a passenger, was involved in a collision with a truck owned by Haydon Oil Company. Mrs. Carrico died as a result of injúries sustained in the accident; the automobile of Thomas Carrico was demolished. It now appears that Thomas Carrico may have sustained personal injuries incident to the accident, of which more will be said.

There are questions presented in these consolidated appeals which will be better understood after recitation of the factual background.

On July 20, 1963, suit was filed against Haydon Oil Company and its servant, wherein damages were sought for the wrongful death of Mrs. Carrico and for the value of Thomas Carrico’s automobile. No claim for damages for the personal injuries of Thomas Carrico was presented in the suit as originally filed. The suit was filed for the plaintiffs by the appellees W. Earl Dean and R. L. Wathen, as attorneys. It is revealed by a pleading of record that at a deposition given in February 1964, Thomas Carrico related that he had sustained substantial personal injuries in the accident; shortly after that deposition was given Thomas Carrico (and apparently the personal representative of Mrs. Carrico) discharged Dean and Wathen as attorneys.

On April 26, 1964, Thomas Carrico filed an amended complaint, through his present attorney of record, wherein he sought recovery of $27,250 as compensation for personal injuries and medical expenses resulting from the accident. This amended .complaint was met with a motion to dismiss the claim of Thomas Carrico for his personal injuries, as being barred by the one-year statute of limitation. On June 2, 1964, the trial court dismissed Thomas Carrico’s claim for damages for personal injuries and medical expenses as being barred by the limitation statute. KRS 413.140(1) (a).

The case proceeded to trial on the claims for wrongful death and property damages. Verdict and judgment of $6,000 was entered upon the death claim and $260 for the property claim on June 12, 1964.

On September 9, 1964, an agreed order was entered containing the following provisions :

“It appearing to the court that the judgment granted plaintiffs herein has been paid and satisfied in full by the defendants; now by agreement of the parties, it is ordered that this action be dismissed with prejudice and stricken from the docket.”

On October 17, 1964, Thomas Carrico instituted suit against his former attorneys, Dean and Wathen, asserting that they had negligently failed to file his claim for personal injuries until it was barred by the limitation statute, and sought damages from them on that account. The attorneys interposed the defenses that the court had erred in striking the claim for personal injuries in the first place, and that the court’s error in that respect could have been corrected by timely appeal. Since no appeal was taken from that order, pleaded the attorneys, it was the failure of Carrico to appeal which damaged him — not any neglect on their part. As additional defense, the attorneys pleaded the agreed order wherein the case was dismissed “with prejudice,” thus terminating all claims in the case for all purposes.

Carrico moved to strike the portion of the answer which asserted the defense that an appeal should have been taken from the order dismissing the personal injury claim. The trial court denied that motion, and upon Carrico’s declining to plead further, entered judgment for the attorneys on the pleadings. The propriety of that ruling is before us.

On April 6, 1965, Carrico filed motion in the original action seeking to have the June 2nd order (dismissing his personal injury claim) set aside, pursuant to CR 60.02. The court overruled that motion, and the propriety of that decision is on appeal.

We think it is plain that the appellant may not prevail in the appeal relating to the denial of his motion for relief in the original action under CR 60.02. If the trial court erred in dismissing the amended complaint, that error could have been challenged by regularly prosecuted appeal. CR 60.02 is not a supplemental appeal procedure. The rule enumerates the instances wherein relief under it may be obtained. None of the instances listed is applicable to the situation at bar. The error, if any, was an error of law by the trial court, and subject to review upon appeal in due course; in such a circumstance CR 60.02 may not be invoked as an alternate method of review. James v. Hillerich & Bradsby Company, Ky., 299 S.W.2d 92; Roberts v. Osborne, Ky., 339 S.W.2d 442. It follows that the judgment must be affirmed in the appeal against Haydon Oil Company and its driver, George E. Young.

We now turn to consideration of the appeal as it relates to the claim against attorneys Dean and Wathen. It is recalled that the trial court granted judgment on the pleadings for these appellees. The recitation of the judgment is that the “ * * * Third Defense of Defendants’ Answer constituted a bar to the cause of action of Plaintiff as set forth in the Complaint.” Contained in the “third defense” were the pleas (a) that Carrico’s action had been dismissed “with prejudice,” and (b) that the order dismissing the amended complaint had been erroneous, and that Carrico should have corrected that error by appropriate appeal. Our problem is to determine whether either or both of those defenses warranted entry of judgment for the attorneys on the pleadings.

We do not regard the agreed order of dismissal as dispositive of the issues as between Thomas Carrico’s personal representative and attorneys Dean and Wathen. In the first place, there was no issue pending in that suit as between Carrico and the lawyers. Moreover, there was nothing to “dismiss” by order at the time the agreed order was entered. The court had already dismissed Carrico’s claim for personal injuries — the verdict and judgment had established the extent of the claims for wrongful death and property damage; those two claims were paid in full, as recited in the order, so there was nothing further for the order to “dismiss” — with prejudice or otherwise. It seems clear that the intent of that agreed order was to substantially comply with CR 79.02(2) by reflecting a satisfaction of judgment. We are unable to perceive any basis for holding that the agreed order as between Carrico'and Hay-don Oil Company inured to the benefit of the attorneys, who were not parties to the action and against whom no claim was then pending. Therefore, it is our conclusion that the pleadings did not warrant judgment for the attorneys on the basis of the agreed order.

It remains to determine whether the pleaded defense of failure to appeal an allegedly erroneous order supports the judgment on the pleadings. The position taken by the appellees Dean and Wathen is that CR 15.03 permitted the relation back of the amended complaint as to Carrico’s personal injuries, so that it was error for the court to dismiss the claim. Thus, they reason, even if they were chargeable with negligence in failing to timely present the personal injury claim, such negligence was not the proximate cause of any damage to Carrico. This reasoning is premised on the thought that Carrico could have avoided the effect of their failure to timely file his case by taking an appropriate appeal from the court’s erroneous order dismissing the amended complaint. The appellant maintains that CR 15.03 does not permit a relation back in the situation at bar, so that he had no remedy except a cause of action against the attorneys.

It is our view that CR 15.03, by its own terms, does provide for a relation back to the original complaint in a case of the type at hand. There was only one cause of action, and that arose by reason of the negligently induced collision. The damage claims arising out of that single “conduct, transaction or occurrence” consisted of the claims for wrongful death of Mrs. Car-rico, personal injuries to Thomas Carrico, and property damage to the Carrico car. All of these claims arose from one tortious act, and by the express language of CR 15.03 the amended complaint asserting Thomas Carrico’s personal injuries related back to the date of the original complaint. Thus the statute of limitation had no application. Conley v. Foster, Ky., 335 S.W.2d 904, supports the view we have just stated, although in the Conley case the original complaint did make claim for some damage items arising from personal injury. We think the critical point is that the claim set out in the amended complaint did arise out of the same occurrence referred to in the original complaint.

Appellant suggests that the rule of relation back in this type case will open a door for fraud and misleading of litigants; it is hypothesized that a litigant could file an insignificant property damage claim, thus lulling the defendant into security, and then “relate back” a substantial personal injury claim long after the one-year period, and thereby place the defendant at serious disadvantage. We think the short answer to that contention is to be found in CR 15.01, which reposes judicial discretion in the matter of permitting amended pleadings. In the case supposed by appellant the court would be able to protect against any deliberate effort to beguile the defendant into a position of disadvantage.

But a decision that CR 15.03 permits relation back in this type case does not put the matter at rest. According to the pleadings (upon which the appealed judgment was rested) the attorneys negligently omitted to present Carrico’s personal injury claim within the limitation period of one year. It is obvious that Carrico would never have had to face the problem of limitation, nor of whether CR 15.03 was available to him, nor of whether to appeal from the court’s adverse ruling upon his attempted amended complaint if the attorneys had timely filed his lawsuit. Can the negligent attorneys now escape responsibility because it now appears that Carrico could have had his claim processed if he had pursued the perfect course of legal action? We do not think so, and find the situation at bar to be comparable with those cases which impose liability upon a tortfeasor for the entire damages sustained by one sustaining bodily injuries, even though it is shown that the medical treatment of those injuries may have been remiss.

In City of Covington v. Keal, 280 Ky. 237, 133 S.W.2d 49, 126 A.L.R. 905, this court recognized and followed the general rule, which is thus stated in an accurate headnote:

“If an injured person exercises reasonable care to minimize his damages by selecting a physician or surgeon to treat his injuries, he may recover damages to the full extent of his injuries, even though the physician employed omits to use the most approved remedy, or the best means of cure or fails to exercise as high a degree of skill and care as another physician might have exercised.” Id., 133 S.W.2d 49, Headnote 8.

The Keal case has been cited with approval in Croley v. Huddleston, 304 Ky. 811, 202 S.W.2d 637, 640, and in Brown Hotel Company v. Marx, Ky., 411 S.W.2d 911, (decided February 24, 1967). See also 48 A.L.R.2d 348, et seq., and 100 A.L.R.2d 810, et seq. In accord are Prosser, Torts, Sec. 51, pp. 318-319 (3d ed. 1964) and Restatement, Torts, Sec. 457.

It is at once apparent that the rule we have been discussing relates to personal injuries, and efforts to minimize them by subsequent medical treatment. The rule in that area seems to be well settled; if the injured person exercises ordinary care in selecting a doctor to treat his injuries, and follows the advice of the doctor, he is permitted recovery for the full extent of his injuries, despite a showing that a better method of treatment was available. We are not able to discern any reasonable basis for a different rule as respects legal advice obtained in an effort to mitigate harm caused by negligent legal practice.

The same reasons are applicable to the situation at bar as in personal injury cases. One basis for the rule is that the injured person is not skilled in medical science; he has done all that can be expected of him when he exercises ordinary care in selecting a competent physician. By parity of reasoning, it is noted that Carrico was not skilled in law; he was thrust into a precarious legal entanglement by the allegedly negligent action of his first attorneys, and in order to extricate himself from that situation he required legal advice. There is no suggestion that he was negligent in the selection of his second attorney. Indeed, we think it could not be argued that the second attorney was negligent or remiss in seeking to undo the legal harm caused to Carrico by the alleged negligence of his first lawyers. The second attorney promptly tendered the amended complaint, asserting Carrico’s personal injury claim. The trial court ruled that it came too late; this court is now holding, by a divided vote, that that ruling of the trial court was erroneous. Was it negligence of the second lawyer to fail to appeal? We think it would require far too great a burden to impose upon a lawyer the prescience which would enable him to foretell that such an appeal would be fruitful. But the real test is whether Mr. Carrico was negligent in not appealing, or insisting on it. To admit that the lawyer was not negligent in failing to appeal is to say certainly that layman-Carrico was free of negligence. How then can the first lawyers, admittedly negligent as the pleadings now stand, take refuge in the assertion that Carrico should have done more to mitigate his damages? It is our view that Carrico did all that the law and reason required of him; the unsuccessful efforts of his second lawyer fall within the risk created by the pleaded negligence of the first lawyers. Reference is had to annotations in 45 A.L.R.2d 5, and 62 et seq. for the general rules incident to liability of attorneys for negligence.

It is our view that the basic questions of liability and extent of damages, if any, should be adjudicated in light of the views expressed in this opinion and after such appropriate further proceedings shall have been taken as will enable the trial court to decide the issues upon the merits.

Lest there be any misconception, we emphasize that nothing in this opinion is intended as a holding or indication that attorneys Dean or Wathen were negligent; we are treating the case on the pleadings, and assuming for this purpose only, the alleged negligence as true.

The judgment is affirmed in the appeal of Loyd Wimsatt, Executor of the Will of Thomas M. Carrico, deceased v. Haydon Oil Company, et al., and the judgment is reversed in the appeal of Loyd Wimsatt, Executor of the Will of Thomas Carrico, deceased v. W. Earl Dean, et ah, for proceedings consistent with this opinion.

WILLIAMS, C. J., and HILL, MILLI-KEN, PALMORE and STEINFELD, JJ., concur.

MONTGOMERY and OSBORNE, JJ., dissent.

MONTGOMERY, Judge,

dissenting.

I respectfully dissent from part of the majority opinion. I would affirm the whole case.

There are two reasons why I feel that the majority opinion is wrong. First, the relation back of the amended complaint to the original complaint is bad statutory construction. A tortious act may give rise to several causes of action. When the Legislature provided two statutes of limitation, one for personal injuries and the other for injury to personal property, it recognized two different causes of action and provided different lengths of time in which each may be brought. I cannot understand how you can have one cause of action and say that part of it is barred in one year and part is barred in five years. The relation back of the cause of action claimed in the amended complaint does violence to the statute of limitation in that type of action. It is a basic principle of statutory construction to give effect to and harmonize various statutes when possible.

My second reason for dissenting is that I feel that the appellant lost any right to litigate further his claim for personal injuries when he failed to present that question on appeal in the original action, but, instead, accepted settlement and permitted satisfaction of judgment to be entered. At the time the satisfaction of judgment' was entered he had already lost his right to appeal and to have that question litigated because he had failed to take the proper and timely steps for an appeal. I do not think he should be permitted to do so now.

OSBORNE, J., joins in this dissent.

      . Thomas Carrico died pending the appeal.


author: STEAKLEY, Justice.

text:
    NEW AMSTERDAM CASUALTY COMPANY v. TEXAS INDUSTRIES, INC., d/b/a Texcrete Structural Products Co.
    No. B-20.
    Supreme Court of Texas.
    April 26, 1967.
    Rehearing Denied May 31, 1967.
    Judgment of Court of Civil Appeals reversed and judgment rendered.
    Brundridge, Fountain, Elliott & Churchill, L. E. Elliott, Dallas, for petitioner.
    DeVore, Ashworth & McGahey, Philip C. McGahey, Arlington, for respondent.
   STEAKLEY, Justice.

This is a summary judgment proceeding. Respondent furnished materials used by the contractor in the construction of certain public works at Love Field Airport of the City of Dallas. Its claim therefor being unpaid, Respondent sued Clarence H. Everett & Co. Inc., the contractor to whom the materials were furnished, and Petitioner, the surety for the contractor on the payment bond executed pursuant to Article 5160, commonly known as the McGregor Act. The trial court entered a joint and several summary judgment against the contractor and surety for the principal sum of $182,919.41, for interest at six per cent per annum on the principal sum, and for attorney’s fees in the sum of $19,773.62. The payment bond contained no provision for attorney’s fees in event of suit and this appeal is limited to the judgment item awarding attorney’s fees against Petitioner as surety on the bond. The Court of Civil Appeals upheld the recoverability of attorney’s fees against the surety but reversed the judgment of the trial court and remanded the cause for the sole purpose of factually determining the amount of reasonable attorney’s fees to be allowed Respondent. 408 S.W.2d 733. We hold that attorney’s fees are not recoverable against Petitioner as the surety on the payment bond.

In Mundy v. Knutson Construction Co., 156 Tex. 211, 294 S.W.2d 371 (1956) we reaffirmed the rule previously recognized as settled law in Wm. Cameron & Co. Inc. v. American Surety Co., 55 S.W. 2d 1032 (Tex.Com.App.1932) that attorney’s fees are not recoverable either in an action in tort or a suit upon a contract unless provided by statute or by contract between the parties. See also Van Zandt v. Fort Worth Press, 359 S.W.2d 893 (Tex.Sup.1962), and cases there cited, stating the rule that statutory provisions for the recovery of attorney’s fees are in derogation of the common law, are penal in nature and must be strictly construed. In Mundy we found the requisite contractual provision in the broad language of a surety bond requiring the payment of “all costs and expenses” which might be incurred in the prosecution of a suit for a breach of the construction contract or on the surety bond itself. But no comparable provision is contained in the payment bond upon which this suit is based, and it is not contended by Respondent that authority for recovery of attorney’s fees may be found in the contract between the parties.

The McGregor Act itself, Article 5160, does not provide for the recovery of attorney’s fees in event of suit against the principal and surety on the payment bond. This is in contrast to explicit provisions for the recovery of attorney’s fees in the somewhat related lien bond statutes, Articles 5472b-l, 5472c, 4a and Article 5472d, subd. 6. Moreover, the bond required by Article 5160 is to be “in the amount of the contract” and the suit authorized by the statute is “for the amount due on the balance thereof unpaid at the time of filing the claim or of the institution of the suit.” So, as Respondent recognizes in its brief, the question resolves to whether attorney’s fees are recoverable against the surety under the general attorney’s fees statute, Article 2226, which provides:

“Any person having a valid claim against a person or corporation for personal services rendered, labor done, material furnished, * * * may present the same to such person or corporation or to any duly authorized agent thereof; and if, at the expiration of thirty (30) days thereafter, the claim has not been paid or satisfied, and he should finally obtain judgment for any amount thereof as presented for payment to such person or corporation, he may also recover, in addition to his claim and costs, a reasonable amount as attorney’s fees, if represented by an attorney.”

Under the limited coverage of its provisions, Article 2226 has no application to the claim of an unpaid materialman against the surety on an Article 5160 payment bond. The claim and ensuing suit are grounded entirely on the surety obligation. The material was furnished not to the surety but to the contractor-principal. Cf. F. & C. Engineering Co. v. Moore, 300 S.W.2d 323 (Tex.Civ.App.1957), error ref. n. r. e.; Mercantile National Bank at Dallas v. McCullough Tool Co., 250 S.W.2d 870, 878 (Tex.Civ.App.1952), rev’d other grounds 152 Tex. 471, 259 S.W.2d 724 (1953) ; Standard Accident Ins. Co. of Detroit v. Smith Perry Elec. Co., 373 S.W.2d 97 (Tex.Civ.App.1963), error ref. n. r. e. with per curiam opinion, 376 S.W.2d 335 (Tex.Sup.1964). Respondent forcefully argues that Article 2226 can be extended by implication to include the claim against the surety by reading this statute with Article 5160 which was enacted for the purpose of guaranteeing full and prompt payment to labor and material claimants on public works projects. But we cannot thus supply by implication the necessary statutory basis for an award of attorney’s fees. Such must be found in the terms of the legislative enactment.

The judgment of the Court of Civil Appeals is reversed and judgment is rendered for Petitioner.

      . All statutory references are as carried in Vernon’s Associated Texas Civil Statutes.

      . “The condition of this obligation such that: Whereas, the principal entered into a certain contract with the City of Dallas, dated the 20th day of April, 1964, a copy of which is hereto attached and made a part hereof, for the construction of parking structure at Love Field Airport in the City of Dallas, Dallas County, Texas in accordance with the plans, specifications and bid which are made a part hereof as though fully written herein word for word.
      Now, therefore, if the principal shall well, truly and faithfully perform its duties and make prompt payment to all persons, firms, subcontractors, corporations and claimants supplying labor and material in the prosecution of the work provided for in said contract, and any and all duly authorized modification of said contract that may hereafter be made, notice of which modification to the surety is hereby expressly waived, then this obligation shall be void; otherwise to remain in full force and effect.”

      . Article 5160.
      “A. * * * (b) A Payment Bond, in the amount of the contract, solely for the protection of all claimants supplying labor and material as hereinafter defined, in the prosecution of the work provided for in said contract, for the use of each such claimant.
      “B. Every claimant who has furnished labor or material in the prosecution of the work provided for in such contract in which a Payment Bond is furnished as required hereinabove, and who has not been paid in full therefor, shall have the right, if his claim remains unpaid after the expiration of sixty (60) days after the filing of the claim as herein required, to sue the principal and the surety or sureties on the Payment Bond jointly or severally for the amount due on the balance thereof unpaid at the time of filing the claim or of the institution of the suit; * *


author: SMITH, Justice.

text:
    Byrum HAILE et al., Petitioners, v. Clyde H. HOLTZCLAW, Respondent.
    No. A-11390.
    Supreme Court of Texas.
    April 19, 1967.
    Rehearing Denied May 24, 1967.

      Underwood, Wilson, Sutton, Heare & Berry, Clayton Heare and Harlow Sprouse, Amarillo, for petitioners.
    Sanders, Scott, Saunders, Brian & Humphrey, C. J. Humphrey, Amarillo, for respondent.
   SMITH, Justice.

Respondent, Clyde H. Holtzclaw, who claims title to a ⅜⅛ interest in the properties of W. B. and Irene Haile under the will of W. B. Haile, sued petitioners, Byrum Haile, et al., seeking: to set aside a deed and remove cloud from title to his claimed fractional interest in the W. B. Haile lands in Hutchinson County, Texas; an accounting for royalties and rentals allegedly withheld from him by petitioners and for damages. The petitioners, as trustees of the W. B. Haile estate, filed a cross-action in which they asserted that through a mistake of law occasioned by an erroneous legal interpretation of the will of W. B. Haile they paid respondent $36,253.33, which amount they were entitled to recover from him. In the same cross-action the petitioners asked for a declaratory judgment holding that the respondent had no interest, legal or equitable, in the assets of the W. B. Haile estate. The jury found respondent did not have the mental capacity to execute the deed in question and judgment was entered setting it aside. The judgment declared respondent the owner of an undivided ⅜⅛ of the properties of W. B. and Irene Haile under the will of W. B. Haile; awarded respondent damages in the amount of the difference between that actually paid him for the four years preceding the filing of this cause and the amount the trial court decreed should have been paid him for that period; and denied petitioners any relief on their cross-action. The Court of Civil Appeals affirmed the trial court’s judgment awarding the respondent an undivided ⅜⅛ interest in the properties; affirmed the award of damages; affirmed the denial of relief sought in the petitioner’s cross-action ; and, reversed and remanded that portion of the court’s judgment which had set aside the deed for want of mental capacity. 400 S.W.2d 603.

From an examination of the judgment of the trial court we find that it decreed Holtzclaw the owner of an undivided ⅜⅛ interest, subject to a life estate in Irene in %ths of said ⅜⅛, in the property passing under the will of W. B. Haile. In its judgment the court itemized the property — both mineral interests and real estate — to which Holtzsclaw was entitled to a ⅜⅛ share. This judgment when compared to the inventory of W. B. Haile’s estate reveals that Holtz-claw received his interest from W. B. Haile’s separate property and the community property of W. B. and Irene Haile. In other words, the trial court was of the opinion that W. B.’s will was effective to pass both his separate property and the Community property of him and his wife.

For convenience the petitioners will hereinafter be designated as “The Hailes”, the testator and testatrix as “W. B.” and “Irene”, respectively, and the respondent will be designated as “Holtzclaw”.

Both parties filed applications for writ of error. Holtzclaw’s application was granted because of the granting of Haile’s application. It is undisputed that Holtz-claw is the surviving husband of Betty, a daughter of W. B., who died testate subsequent to the death of W. B. and prior to the death of Irene. Betty named Holtzclaw as the sole legatee and devisee of her estate.

On November 20, 1948, W. B. died testate leaving a will which was substantially identical in its terms to the will of his wife, Irene. Both wills were executed on the same day. The parties agree that the wills are ambiguous.

The pertinent provisions of W. B.’s will are:

“FIVE It is my will and desire if I shall pre-decease Irene Haile, that I do hereby give, devise, and bequeath unto my beloved wife, Irene Haile, all personal property which I may own at the time of my death including cash on hand and in the bank, together with all other personal property, with the full right to manage and dispose and expend same.
“It is further my will that all income from all royalty interest shall be divided into eleven equal parts, and that each of our beloved children named below shall receive an undivided one-eleventh and that Irene Haile shall receive two-elevenths. That there will be reserved at all times by the executor sufficient money to pay all inheritance, income and other taxes of every kind and character.
“SEVEN It is my will and desire and I do hereby direct that if I should predecease Irene Haile she shall have the sole management and control and direction of all of my separate estate as well as her separate estate, and that so long as Irene Haile shall live, the royalty income from said property shall be divided as provided in Paragraph Five, that is the said Irene Haile shall receive two-elevenths and each of our children shall receive one-eleventh of such income, after deduction of an adequate reserve for the payment of taxes. Proper division of said funds shall be made within a reasonable length of time after the royalty is received, not to exceed thirty days, unless all our children below named consent to a further extension, which they may do for the purpose of convenience in distributing said funds. With reference to all other income except royalty income, it is my wish and desire that my beloved wife shall have full right to expend and dispose of same should she so desire. Whenever the term ‘royalty income’ is used in this will, it shall be construed to mean all income derived from the production and sale of oil, gas and other minerals, including royalty, over-riding royalty, and oil, gas and casinghead gas payments.
“EIGHT That it is my wish and desire, and I hereby direct, after consultation and full understanding with my beloved wife, Irene Haile, that if Irene Haile should pre-decease me, that our ■children, including our own child, Byrum Haile and my children, by a former marriage, Verdie Herrington, Chlorie Haile, Jim Haile, Betty B. Holtzclaw, Meade Haile and Nadine Haile Martin, and Mrs. Irene Haile’s children by a former marriage, namely Mrs. Mary Fry Gray and Mrs. Walta Fry Russ, shall upon my death be the equal owners of all my property both real, personal and mixed, of every kind and character whatsoever and that all income from said property shall be divided equally between all of said named •children without reference to community property rights, or to any separate property rights of either of us hereby stating that it is my will and desire that upon my death, that all of my property together with all the property of my beloved wife, Irene Haile, shall be considered as community property without reference to any separate property rights which either of us may claim.
tl * * *
“TEN It is my will and desire, and I hereby direct that the real estate, and any personal property used in connection with said residence, which we own in Roaring Springs, Texas, in Motley County, which is being used at this time by Mary Sampson as a residence, shall be and continue as her residence during her life-time, and she is hereby given and granted a life estate therein; but at her death (or at my death if she should pre-decease me) then it is my will and desire, that said property shall be considered a part of the estate, and the executor or executors above named shall have the right to sell and dispose of same, at their discretion, and the proceeds to be divided equally among our children, named above, except that if Irene Haile shall be living, the proceeds shall be divided into eleven equal parts, and two-elevenths shall be given to Irene Haile.”

W. B.’s will was probated on January 4, 1949, and thereafter Irene qualified as independent executrix. Betty died on March 31, 1951. Until her death on September 18, 1957, Irene, as executrix, distributed ½1⅛ of the income from the properties to Betty and eight other children and retained ?iiths for herself. Following Betty’s death Irene paid Betty’s Jiith to Holtzclaw. After Irene died the Vnth share was paid to Holtzclaw by trustees appointed by a court order. On May 30, 1963, Holtzclaw deeded to the “W. B. Haile estate” the property allegedly inherited by him from his wife, Betty, subject to a life estate reserved in himself. This is the deed which Holtzclaw seeks to set aside.

The Hailes take the position that the only dispositive portions of W. B.’s will are paragraphs 5 and 7, supra; that paragraph 8, supra, was ineffectual to pass any property as its provisions were to become operative only if Irene predeceased W. B.; that Betty received only a royalty income under W. B’s will and this interest was measured by the life of Irene; that no real property passed to Betty under W. B.’s will; that the life estate was followed by a contingent remainder in the appointees of Irene in her will, and this remainder became vested in the children named in paragraph 8 of Irene’s will when she died; that since Betty was dead when Irene’s will took effect, the gift to her lapsed and was devised according to paragraph 8 (and a codicil) of Irene’s will. Thus, it is argued that Holtzclaw had no property which could be the subject of the deed to the “W. B. Haile estate.”

Holtzclaw argues that the wills were contractual in nature with the result that the property would be disposed of by the will of the first to die; that Irene was put to an election of whether to accept the benefits conveyed to her by W. B.’s will or claim her community assets; that having exercised that option, Irene accepted the benefits under W. B.’s will and all real property and income passed to her and the children living at the death of W. B.; that each child living at W. B.’s death inherited an undivided ½⅛ interest in fee in all the property owned by W. B. and Irene, subject to a ¾1⅛ portion of the income from the property being paid to Irene for life; that Betty’s interest was therefore vested and was capable of being devised to Holtzclaw. It is further argued that the Hailes are estopped from asserting that Holtzclaw owned no interest in the land since the trustees had paid to him Vnth of the income until this suit was filed. We are not in complete agreement with either the Hailes or Holtzclaw.

A cardinal rule in construing a will is for the court to determine the intention of the testator. To this end resort may be made to the provisions of the will as a whole and the surrounding circumstances, rather than a particular or isolated provision, if the intention be not clearly expressed. Guilliams v. Koonsman, 154 Tex. 401, 279 S.W.2d 579, 57 A.L.R.2d 97 (1955). It is also a rule that by the very fact a will is left, an implication arises that the testator did not intend to die intestate. Ferguson v. Ferguson, 121 Tex. 119, 45 S.W.2d 1096, 79 A.L.R. 1163 (1931). A construction that results in partial intestacy is not favored in the law. Rust v. Rust, 211 S.W.2d 262 (Tex.Civ.App.—Austin 1948) aff’d, 147 Tex. 181, 214 S.W.2d 462 (1948). The rule last stated, however, must yield to a construction resulting in partial intestacy when the testator has failed, through design or otherwise, to make a complete disposition of his property. Carr v. Rogers, 383 S.W.2d 383 (Tex.Sup.1964); Fain v. Fain, 335 S.W.2d 663 (Tex.Civ.App.—Ft. Worth 1960, writ ref’d).

Another principle pertinent to the case now before us and deeply embedded in the law is the presumption that a testator only intended to dispose of that which was his. Avery v. Johnson, 108 Tex. 294, 192 S.W. 542 (1917). This presumption may only be overcome by language which clearly and without equivocation manifests a contrary intent. It has been said that for the presumption to be rebutted the will must be “open to no other construction” than that the testator undertook to dispose of the surviving spouse’s property or property rights. Avery v. Johnson, supra; Wright v. Wright, 154 Tex. 138, 274 S.W.2d 670 (1955); Baldwin v. Baldwin, 134 Tex. 428, 135 S.W.2d 92 (1940). It is not sufficient that the w'.ll may be construed to reveal an intention to dispose of the survivor’s property. Hocker v. Piper, 2 S.W.2d 997 (Tex.Civ.App.—El Paso 1928. writ ref’d).

To be considered in connection with the presumption stated above is the language in paragraph 8 of W. B.’s will stating that he desired his property, together with the property of his wife, to be considered as community property. Arguably this language could be interpreted to mean that W. B. intended to devise to Irene ½ of all his separate property. From an examination of the provisions in that paragraph, however, we find that those provisions were conditioned on Irene predeceasing W. B. Since this event did not occur, the possible dispositive provisions of paragraph 8 were rendered inoperative.

We must now determine from an examination of W. B.’s will what disposition, if any, was made of the subject property.

We hold that Irene was the sole recipient of all of W. B.’s personal property, i. e., his separate personal property and his ½ community interest in any personal property. This much is clear from the provisions of paragraph 5 of the will wherein it was stated that Irene was to have all his personal property, including any cash on hand, which he owned at the time of his death. In fact, neither party makes any contention to the contrary.

The Real Property

As will be observed below, we have segregated our discussion of the disposition, if any, of the real property from the alienation of the royalty interests. In so doing, we are aware that in Texas a royalty interest is regarded as an incorporeal interest in the realty itself. Sheffield v. Hogg, 124 Tex. 290, 77 S.W.2d 1021, 80 S.W.2d 741 (1934) ; Tennant v. Dunn, 130 Tex. 285, 110 S.W.2d 53 (1937); State v. Quintana Petroleum Co., 134 Tex. 179, 133 S.W.2d 112, 134 S.W.2d 1016, 128 A.L.R. 843 (1939); Garza v. De Montalvo, 147 Tex. 525, 217 S.W.2d 988 (1949); Clyde v. Hamilton, Tex., 414 S.W.2d 434 (1967). This approach becomes necessary as we have concluded that W. B. made no disposition of the real property, but did make a limited disposition of the royalties.

At the outset we pose the question — what language in the will can fairly be construed to dispose of the real property? The Hailes take the position that the provision of paragraph 7 which gave Irene the power to expend and dispose of the non-royalty income carried with it the fee title to the corpus. Holtzclaw argues that paragraph 8 showed W. B.’s intent to vest the fee title to the real property in the children. We do not agree with either of these positions.

We are aware of no Texas cases which have made an outright holding that the right to expend the income from a named real property carries with it the fee title to the corpus. We decline to use this case as a vehicle to innovate such a rule of law in this jurisdiction.

The provisions in paragraph 8 could not vest the fee title to the real property in the children as its provisions were contingent on Irene predeceasing W. B. As heretofore stated, since W. B. was the first to die, paragraph 8 disposed of nothing.

There being no words in W. B.’s will which could be deemed to pass title to the real property, we hold that as to that property W. B. died intestate. Since Betty was alive on W. B.’s death, she inherited an undivided ⅜⅛ interest in his separate real property. Irene, as the surviving spouse, would be entitled to a life estate in t/¡rá of W. B.’s separate real property with a remainder in the children of the decedent upon the termination of her life estate. Vernon’s Tex.Prob.Code Ann. § 38(b) (1956). Betty’s ⅛⅛ interest in W. B.’s separate real estate was vested and passed to Holtzclaw by the provisions of her will.

With respect to the community real estate Irene, of course, would be entitled to her ½ and the children would divide W. B.’s ½. Tex.Prob.Code Ann. § 45 (1956). Thus, upon the death of W. B., Betty was entitled to ⅛⅛ of ½, or ½8⅛ of the community real property and this interest passed to Holtzclaw by her will.

The Royalty Interests

We have concluded that W. B. intended to dispose of all of the royalty interests in the proportions set out in his will for and during Irene’s lifetime. While it is true that the will speaks of “royalty income”, we cannot believe that W. B. intended his wife and children’s interests to be limited merely to the income derived from invested royalties and we decline to so hold. Of the royalties which accrued during Irene’s lifetime, however, she became the absolute owner of %iths thereof and each child became the absolute owner of Vnth of those royalties. Following the creation of these interests, however, we find no language which disposed of the royalty interest following the death of Irene. There being no gift over, upon Irene’s death W. B.’s interest in the mineral estate reverted to his heirs. In Glenn v. Holt, 229 S.W. 684 (Tex.Civ.App.—El Paso 1921, no writ hist.) it was stated:

“Remainders are created by deed or devise, whereas reversions are created by operation of law. It matters not how many estates are carved out of the owner’s entire estate, a reversion will be left, provided they do not amount in quantity to his original estate.”

It is said in Thompson on Real Property (Perm.Ed.), Vol. 4, p. 716, § 2180, that a reversion is “ * * * [t]he residue of an estate left by operation of law in the grantor or devisor or his successors, commencing in possession on the determination of a particular estate granted or devised. * * * A reversion is never created by deed, but it arises only by implication of law, and remains vested in the sense of a present fixed right of enjoyment in the future.”

It can thus be seen that upon W. B.’s death Betty had a Vnth. interest in the royalties which accrued during Irene’s lifetime plus a vested ½⅛ interest in W. B.’s share of the reversion of that estate. This latter interest would amount to a full ⅛⅛ interest in that portion of the royalty estate appurtenant to W. B.’s separate property and %th of ½ (or Visth) of the royalty interest attributable to the community property. Her right to this latter interest was vested although possession and enjoyment of that estate would be postponed until Irene’s death. Thus, this interest with which Betty died seized, along with any accumulated royalties, passed by her will to her husband, Holtzclaw.

The Income

We next construe that portion of W. B.’s will contained in paragraph 7 which reads:

“With reference to all other income except royalty income, it is my wish and desire that my beloved wife shall have full right to expend and dispose of same should she so desire.”

Mindful of the presumption that a testator normally intends to dispose of his property only, we construe this language as being a bequest to Irene of only W. B.’s share of the income. Irene was given the full right of disposition of the income. A general power to dispose of personal property vests in the recipient of that power full ownership. 61 Tex.Jur.2d 376, Wills, § 242. This proposition is not, however, a rule of law, but is only an aid in the process of discovering the testator’s intent. 96 C.J.S. Wills § 839b, p. 268. The rule will give way, for example, when a gift over follows the bequest — the implication in that instance being that there was an intention to create a life estate. Here, however, there was no gift over following the bequest of the income, and we therefore hold that by the language in paragraph 7 Irene was the absolute owner of all the income accruing during her lifetime. Upon Irene’s death, any accumulated income and royalties, her separate real property, her ½ of the community real property and all of the personal property (since W. B. had given her his personal property in paragraph S of his will) passed by the provisions of her will to the beneficiaries named therein who were alive when she died.

Holtzclaw received no interest under the will of Irene. Betty, through whom Holtz-claw claims his interests, predeceased Irene. Thereafter, Irene executed a codicil to her will (see footnote 1) which by its terms prevented Holtzclaw from receiving any rights or interests to the properties devised in her will.

In view of the holding we have heretofore made, it becomes necessary to dispose of the further points of error raised by the parties. As previously stated, Holtzclaw brought this suit to cancel the deed. As grounds for cancellation he alleged that no consideration was paid for the property purportedly conveyed by the deed; that he did not intend for the deed to operate as a gift of the property; that he lacked the mental capacity to execute the conveyance; that at the time of the execution of the instrument, he was laboring under undue influence. He further alleged the deed was void because the grantee and the property purportedly conveyed were insufficiently described; and, that one of the possible grantees, B. H. Haile, took the acknowledgement for the deed. Prior to the submission of the case to the jury, Holtzclaw filed a motion in which he requested the court to make affirmative findings that he did not intend the deed as a gift and that he received no consideration for the conveyance. The trial judge entered an order making the requested findings, to which ruling the Hailes duly excepted. Thereafter, the court submitted the case to the jury on two special issues. The first issue inquired whether Holtzclaw possessed the mental capacity to execute the deed. To this issue the jury found that Holtzclaw did not have the mental capacity to execute the deed. The second issue asked whether Holtzclaw was acting under undue influence at the time he executed the deed. The jury answered that he was not so acting. Based on the first jury finding, the trial court entered a judgment setting the deed aside.

In the Court of Civil Appeals the Hailes did not complain of the trial court’s finding that no consideration was paid for the deed. On the other hand, Holtzclaw made no complaint of the failure of the jury to find undue influence. The Court of Civil Appeals found the evidence was factually insufficient to support the jury finding that Holtzclaw lacked the mental capacity to execute the deed. That court further held that there was enough evidence that Holtz-claw intended to make a gift of the property to the W. B. Haile Estate to warrant submission of an issue thereon; and, that the deed sufficiently described the grantee and the property sought to be conveyed. It was finally held that the fact that the acknowl-edgement to the deed was taken before one of the grantees did not render it invalid. Both the Hailes and Holtzclaw have points of error before this Court attacking the above holdings.

As part of the evidence relating to his mental capacity Holtzclaw introduced, over the objection of the Hailes, two orders dated February 13, 1958, and April 12, 1963, respectively, committing him to the Wichita Falls State Hospital pursuant to the Texas Mental Health Code, Article 5547-1 et seq. Vernon’s Annotated Texas Civil Statutes. Also introduced into evidence was an order appointing a temporary guardian for Holtz-claw pursuant to Section 131, Texas Probate Code, dated May 15, 1963. The deed in question was dated May 30, 1963. According to Article 5547, Section 83(a), a judicial determination that a person is mentally incompetent creates a presumption that he continues to be incompetent until released from a mental hospital or until his competency is redetermined by a court. By Section 83(b) of that Article, on the other hand, a determination that a person is mentally ill without a finding of mental incompetence does not constitute a determination of his mental competency, abridge his rights as a citizen nor affect his property rights or legal capacity.

The Hailes objected to the introduction of the orders of commitment on the grounds that the orders adjudicated the fact that Holtzclaw was mentally ill as opposed to mentally incompetent and, that the orders were hearsay, irrelevant, immaterial and prejudicial. In short, their position is that an order adjudging a person to be mentally incompetent would be admissible to rebut the usual presumption that every person is sane, while an order adjudging a person to be mentally ill, since it raises no presumption of mental incompetence, is inadmissible for any purpose. We cannot agree with this contention. The orders were introduced as some evidence of Holtzclaw’s condition of mind at the time he executed the deed in question. We think the orders, both of which were entered prior to the execution of the deed, were relevant as bearing on Holtzclaw’s mental condition at the time he executed the conveyance. See Cole v. Waite, 151 Tex. 175, 246 S.W.2d 849 (1952); and, see McCormick & Ray, Texas Law of Evidence, (2d Ed.), Vol. 2, § 1282, p. 152. An adjudication which determines mental condition entered prior to the execution of a deed or will is generally held admissible upon the issue of the grantor’s mental capacity. Annotations, 7 A.L.R. 568 (1920); 68 A.L.R. 1309 (1930); Slough, Testamentary Capacity: Evidentiary Aspects, 36 Texas L.Rev. 1 (1957); Green, Proof of Mental Incompetency and the Unexpressed Major Premise, 53 Yale L.J. 271 (1944); Green, The Operative Effect of Mental Incompetency on Agreements and Wills, 21 Texas L.Rev. 554 (1943). We therefore hold the orders admissible as bearing on Holtzclaw’s mental capacity at the time he executed the deed. This holding is not in conflict with our holding in the case of Carr v. Radkey, 393 S.W.2d 806, (Tex.Sup.1965). In that case the county court’s judgment that the testatrix was non compos mentis was entered after the execution of the will, whereas, the orders in the present case were entered prior to the execution of the deed involved. Therefore, the Carr case is no authority for holding that the orders which were entered in the present case are inadmissible.

As above stated, the order appointing a temporary guardian for Holtzclaw was issued pursuant to Section 131, Texas Probate Code. That section authorizes a county judge to make an immediate appointment of a temporary guardian for a person of unsound mind in order to protect that person’s interests. The order was entered fifteen days prior to the execution of the deed. We think it, along with the orders committing him to a mental hospital, if introduced upon another trial, would be admissible as bearing on the fact question of his mental capacity at the time of the execution of the deed.

Holtzclaw argues that as a matter of law the Court of Civil Appeals used the wrong test to determine the sufficiency of the evidence relating to his mental capacity to execute the deed in question. We are not in agreement with this contention. In the Court of Civil Appeals the Hailes had points of error asserting there was no evidence, or in the alternative insufficient evidence, to support the jury finding that Holtzclaw lacked the mental capacity to execute the conveyance. In disposing of the “no evidence” point the intermediate court held that the commitment orders and the order appointing a temporary guardian were admissible as bearing on Holtzclaw’s mental condition at the time he executed the deed and therefore overruled this point. We have no quarrel with this holding. On the question of whether the evidence was factually sufficient to support the jury finding of lack of mental capacity, the court held the orders were not in themselves sufficient to support that finding. In so ruling the court said, “Excluding for the moment the commitments and order appointing temporary guardianship, the evidence pertaining to appellee’s mental condition at or near the time he executed the deed is, at best, meagre.” [emphasis added]. The Court then viewed all the evidence pertinent to the issue of mental capacity. Thus, the Court did not exclude (as Holtz-claw argues here) the orders from its consideration; rather, it “excluded” those orders for the moment (since the Court had already held that the orders standing alone were not sufficient to support the jury finding) and found that any other evidence relating to mental capacity was at best meager. On this basis the Court concluded the evidence was insufficient to support the jury finding of lack of mental capacity. We do not think the approach of the Court of Civil Appeals in reviewing the sufficiency of the evidence was erroneous as a matter of law and we accordingly overrule Holtzclaw’s point of error challenging the test as being improper.

We turn now to Holtzclaw’s contention that there was no evidence that the deed was intended as a gift of the property described therein. The Court of Civil Appeals held there was enough evidence of a gift to warrant the submission of that issue to a jury. We hold the trial court correctly declined to submit the issue of a gift to the jury, but for a different reason. In determining whether a gift was intended by the execution of a deed, we must look to the facts and circumstances surrounding its execution in addition to the recitation in the deed itself. Smith v. Allison, 157 Tex. 240, 301 S.W.2d 608 (1956) and Gibbs v. Barkley, 242 S.W. 462 (Tex.Com.App.1922). We hold that the conveyance was a gift as a matter of law. In reaching this conclusion we have taken into consideration the following facts and circumstances. There was testimony by Mrs. B. H. Haile that on the morning the deed was executed B. H. Haile had talked with Holtzclaw and told him that he did not think Betty would want him to will his property first to one person and then to another. Following this conversation, Holtzclaw stated, “Draw up the instrument”. The deed was drawn up and Holtzclaw signed it. It is undisputed that no consideration was paid for the deed. B. H. Haile’s wife further testified that immediately after signing the deed Holtz-claw said, “I am glad I signed that instrument because that it what Betty would want me to do.” It should also be noted that Holtzclaw testified that he had no recollection of signing the deed. The only evidence offered by Holtzclaw that he did not intend to make a gift was his answer of “no” to a question, directed to him on direct examination and conditioned on his recollection, which inquired whether he intended to make a gift to the W. B. Estate. We do not think that Holtzclaw’s answer on direct examination could defeat all of the other evidence which pointed to a gift as a matter of law. We therefore hold that the execution and delivery of the deed was a gift of the property described therein. We emphasize that this holding is based on the record we have before us and is confined solely to the issue of the intention of Holtzclaw to make a gift.

Holtzclaw next argues the deed was void on its face because the grantee of the deed was insufficiently described; the property was insufficiently described; and, the deed was acknowledged by a possible grantee, one of the Hailes.

The grantee named in the deed was “the W. B. Haile Estate”. In McKee v. Ellis, 83 S.W. 880 (Tex.Civ.App.1904, no writ hist.) it was held that a deed “to the estate of L. A. Ellis, his heirs or assigns” had the effect of conveying the title to those entitled to take the grantee’s estate. See also Lott v. Dashiell, 233 S.W. 1103, (Tex.Civ.App.— San Antonio 1921) mod’d on other grounds, 243 S.W. 1072 (Tex. Com.App.1922); Hill v. Jackson, 51 S.W. 357 (Tex.Civ.App.1899, writ ref’d). Since W. B. Haile was dead when the deed was executed, his “estate” or heirs were capable of being ascertained; therefore, under the above authorities we hold the grantee was sufficiently described.

Ai above stated, Holtzclaw attacked the deed as being void on its face because it was insufficient to describe the interests purportedly conveyed. The pertinent part of the deed reads as follows:

“ * * * All interest in and to all of the oil, gas and other minerals in and under and that may be produced from the following described lands situated in Hutchinson County, Texas, to-wit: being all of the interest in and to all of the oil, gas, and other minerals as inherited by Clyde H. Holtzclaw from Betty B. Holtzclaw and being all of the interest of Betty B. Holtzclaw in and to the oil, gas, minerals and real property of the W. B. Haile Estate as such interest is shown of record in the Probate Records of Hutchinson County, Texas, to which reference is made for a full description of the interest and title herein conveyed * * * ”

We hold the description sufficient to describe the interests conveyed. Similar descriptions have been held sufficient to effect a valid conveyance. For example, see Pena v. Frost National Bank, 119 S.W. 2d 612 (Tex.Civ.App.—San Antonio 1938, writ ref’d); Smith v. Westall, 76 Tex. S09, 13 S.W. 540 (1890); Harris v. Broiles, 22 S.W. 421 (Tex.Civ.App.1893, no writ hist.); and see, Texas Consolidated Oils v. Bartels, 270 S.W.2d 708 (Tex.Civ.App.—Eastland 1954, writ ref’d).

Holtzclaw finally argues that the fact that the acknowledgement on the deed was taken before B. H. Haile, one of the possible grantees, “taken with the other facts and grounds for questioning the deed” rendered the deed void. We do not agree with this contention inasmuch as between a grantor and a grantee deeds are valid even without a valid acknowledgement. Hill v. McIntyre Drilling Co., 59 S.W.2d 193 (Tex.Civ.App.—Texarkana 1933, writ ref’d); First State Bank in Caldwell v. Stubbs, 48 S.W.2d 446 (Tex.Civ.App.—Galveston 1932, no writ hist.) Mondragon v. Mondragon, 239 S.W. 650 (Tex.Civ.App.—San Antonio 1922) mod’d on other grounds, 113 Tex. 404, 257 S.W. 215 (1923).

Since this cause is to be remanded to the trial court for a new trial, we deem it necessary to discuss one other question which might arise upon another trial. The Hailes contend that Holtzclaw owned no interest in the property involved and that therefore they were entitled to $36,253.33 which they assert was paid to Holtzclaw under a mistake of law. Since we have determined that Holtzclaw owns some interest in W. B. Haile’s property, this question, if raised upon a new trial, is to be determined in the light of this holding.

Our rulings on the questions presented on this appeal render it necessary to remand this cause to the trial court for a new trial. The pleadings and the evidence may present entirely different issues than those considered herein. Also, additional evidence may be developed upon a new trial. Therefore, our discussion of the facts and issues presented on the present record is not to be interpreted as conclusive of the record to be made upon a new trial.

The judgments of the trial court and the Court of Civil Appeals are reversed. The interests of the respective parties in the various properties are declared to be as herein set out, and the cause is remanded to the trial court for a new trial of the remaining issues in the case in accordance with this opinion.

All costs are taxed against the Hailes and Holtzclaw equally.

      . Paragraph 8 of Irene’s will was the same as paragraph 8 of W. B.’s supra, except that it substituted “that if W. B. should predecease me” for “that if Irene should predecease me.”

      . The codicil pointed out that Betty was dead and stated that Irene wanted the remaining children to divide the property equally. She expressly stated it was her desire to exclude Betty’s heirs, assigns, legatees or successors in interest from having an interest in the property.

      . For a discussion of the distinction between legal insufficiency, i. e., no evidence, and factual insufficiency, i. e., where the evidence supporting the finding is so weak that it must be set aside and a new trial ordered, see Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965).


author: ONION, Judge.

text:
    Erskine Elwood BOWERS, Appellant, v. The STATE of Texas, Appellee.
    No. 40282.
    Court of Criminal Appeals of Texas.
    April 12, 1967.
    Rehearing Denied May 31, 1967.
    Legg, Saxe & Baskin by Pat M. Baskin, Midland, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

This is an appeal from an order revoking probation.

On December 13, 1965, appellant plead guilty to the offense of Robbery By Assault and was assessed a punishment of five (5) years in the penitentiary. Sentence was pronounced on the same date; but the execution thereof was suspended and appellant was granted probation.

Among the conditions of probation was that he “commit no offense against the laws of this State or of any state or of the United States.”

On the 9th day of July, 1966, the State filed a motion to revoke appellant’s probation, alleging the terms and conditions were violated in that he, on or about June 7, 1966, committed the offense of theft of a lawn edger, and that on or about June 8, 1966, he committed the offense of theft of a tire and wheel.

On July 22, 1966, a hearing was had upon the State’s motion to revoke probation. The Court’s order, finding that appellant had violated his conditions of probation and revoking probation, indicates that the only basis for the revocation is the theft of the tire and wheel on June 8, 1966.

The only question involved in an appeal from an order revoking probation is whether the trial court abused its discretion.

The State’s evidence reveals that Houston Caruthers of Midland, who had the lawn edger stolen from him on June 7, 1966, testified that a new tire and wheel which had been mounted under his truck and which had never been on the ground was stolen from him on June 8, 1966. He had known the appellant for ten (10) or twelve (12) years and had seen him frequently when the appellant visited the house next door to the Caruthers home.

Ralph Holder, owner of the Economy Welding Service of Midland, testified that he had purchased from the appellant for $6.00 the tire and wheel later identified as the one taken from Caruthers. He testified that he did not believe the value of the tire was in excess of $50.00; that appellant told him that the tire had come “from under a truck they had wrecked out”; that he had known appellant for two (2) years, had purchased items from him before, and knew his father had a junk yard. Holder related that since the tire was new he had questioned in his own mind that the tire and wheel belonged to the appellant.

Wayne Gideon, Detective Captain of the Midland Police Department, testified he had recovered the Caruthers tire and wheel from the Economy Welding Company on June 9, 1966.

Appellant called his nephew, Curtis Ray Carter, as a witness. Carter testified that he alone had stolen the tire and wheel on June 8, 1966; that without telling the appellant that the items were stolen requested appellant to sell them for him; that he remained in the car while appellant sold the items.

Testifying in his own behalf, appellant denied stealing the tire and wheel or knowing at the time he sold the items that they were stolen. He admitted telling Ralph Holder that the tire and wheel had come from a “wrecked out” truck, but only because he assumed Carter had gotten them from appellant’ father’s junk yard, to which he had access. He related that Carter had told him it was an old tire, but that before selling the items for $6.00, he observed that it was a new tire and wheel which in his opinion was worth $30.00.

The rule is well established that when evidence of theft is circumstantial and based on possession, and the person in whose exclusive possession the recently stolen property is found fails to give an explanation or gives a false explanation when called upon to explain or when the facts are such as to require an explanation from him, such will warrant a conviction without further proof. 55 Tex.Jur.2d, Sec. 214, pp. 480-481.

The question for our determination is whether the appellant’s explanation made to Ralph Holder was a reasonable and satisfactory account of his possession made for the first time his possession was challenged so as to overcome the legal presumption that arose from his possession of recently stolen property as a matter of law.

It should be borne in mind that we are bound to view the matter in the light most favorable to the State. Further, it should be remembered that it is the explanation made at the time an accused is found in possession of the property which controls and not the explanation made at the time of the trial. Wall v. State, 167 Tex.Cr.R. 634, 322 S.W.2d 641; Walden v. State, 165 Tex.Cr.R. 196, 305 S.W.2d 354; and Banks v. State, 160 Tex.Cr.R. 418, 271 S.W.2d 661.

Appellant admitted that his statement to Holder was untrue, but he just assumed at the time it was correct. Under all the facts and circumstances of the case, including the sale of the items at far below their market value in the opinion of both the buyer and seller, the Court was authorized to disbelieve appellant’s explanation as well as the testimony of Carter. The trial judge, when sitting without a jury, is authorized to accept or reject any or all of the testimony. Walker v. State, Tex.Cr.App., 395 S.W.2d 645; McCutcheon v. State, 140 Tex.Cr.R. 74, 143 S.W.2d 611.

Appellant’s counsel in an extensive brief and able oral argument before this Court vigorously contends that while appellant’s statement to Holder as to the source of the tire and wheel was shown to be untrue, the testimony in the record as to the business transaction is insufficient to show a false explanation when called upon to explain possession, or a false explanation when the facts were such as to require an explanation. Appellant further contends that the statements made to Holder, in view of their past relationship, were only casually made at a time when he did not know he was suspected of theft and without his right to the tire and wheel being called into question. See Reveal v. State, 27 Tex.App. 57, 10 S.W. 759.

We cannot agree that in the business transaction as reflected by the record appellant was not called upon to explain his possession, or that the facts were not such as to require an explanation. The appellant appeared alone in exclusive possession of the tire and wheel and represented that he owned or had authority to sell the items involved. The statement was made to a prospective buyer after inquiry and was not casually made as in Reveal v. State, supra.

Be that as it may, if the statement is not to be considered at all because only casually made, then the record would reflect that the appellant made no explanation of his possession of recently stolen property. The rule above stated as to possession of recently stolen property would apply with equal force and effect.

Appellant contends that his counsel was not permitted at the close of the testimony to present argument to the trial court before probation was revoked. At such time the Court indicated it did not desire argument and ruled. There was no request for argument nor any objection taken to the Court’s action.

Appellant further complains that some hearsay testimony was introduced into evidence. It is presumed that the trial court ignored inadmissible evidence in cases tried before him. Milligan v. State, 170 Tex.Cr.R. 584, 343 S.W.2d 455.

Finding the trial judge did not abuse his discretion, the judgment is affirmed.


author: WOODLEY, Presiding Judge.

text:
    Henry Columbus BROADHEAD, Appellant, v. The STATE of Texas, Appellee.
    No. 40288.
    Court of Criminal Appeals of Texas.
    April 19, 1967.
    Rehearing Denied May 31, 1967.

      Stephenson, Thompson & Morris by James A. Morris, Orange, (on appeal only), for appellant.
    W. C. Lindsey, Dist. Atty., Thomas L. Hanna, Asst. Dist. Atty., Beaumont, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is assault with intent to murder with malice; the punishment, two years.

Trial was held subsequent to January 1, 1966.

In his brief filed in the trial court appellant contends that the evidence is insufficient to sustain the verdict.

The evidence viewed from the standpoint most favorable to the jury’s verdict shows that appellant’s wife and the complainant had at times lived together, both in Texas and California, over a period of a year. On August 18, 1965, appellant reclaimed his pistol from a pawnshop, bought ammunition for it, and proceeded to the L & M Cafe in Beaumont where he observed his wife and the complainant sitting in a booth. He bought a package of gum, telling the woman behind the counter: “I am fixing to get it.” He immediately turned around and fired a shot at the complainant, and then fired another shot after the complainant had fallen to the floor.

After firing the second shot, appellant stated: “Now you won’t get to take my wife back to California.” Appellant then told' the cafe manager to call the police, and proceeded to a bar across the street.

Both shots hit the complainant in the back, resulting in his total paralysis from the waist down.

With regard to appellant’s intent to kill the complainant, Mrs. Doris Peveto testified that she accompanied appellant when he purchased the pistol used in the shooting,, and was told by him immediately following the purchase that he hoped he could catch his wife and the complainant in bed together as “he would kill both of them.”

Officer Istre testified that appellant came to his office on August 2, 1965, and told him, among other things, that he had a pistol and if the complainant returned h> Orange he was going to kill him.

Appellant testified that when he saw the complainant in the cafe he thought he was-reaching for a gun, and fired to defend himself; but he also admitted on cross-examination that when he fired the second shot he intended to kill the complainant.

The jury resolved the issues of fact against appellant and the evidence is sufficient to sustain the conviction.

Appellant’s next contention is that testimony regarding the purchase of a pistol by appellant was highly prejudicial and constituted reversible error because it placed the “erroneous inference” before the jury that appellant had purchased the pistol for the purpose of shooting the complainant. .Such error, if any, is not before this Court for review. There was no objection to the introduction of this evidence and appellant testified on direct examination concerning the purchase of the pistol. Huggins v. State, Tex.Cr.App., 293 S.W.2d 779; McLarty v. State, Tex.Cr.App., 302 S.W.2d 420.

Appellant complains that an aggravated assault count was erroneously included in the indictment. No motion to quash or exception to the indictment was filed. The State abandoned the second count of the indictment and only the count alleging assault with intent to murder was submitted.

Appellant’s next contention is that the indictment was not read to the jury.

The docket sheet of the trial court, reproduced in the appellate record, has the following entry: “Jury sworn in at 2 P.M. Indictment read; defendant entered Plea of Not Guilty. Rule invoked. Testimony begun at 2:03 P.M.”

The contentions relating to the form of the indictment and the reading of it to the jury are overruled.

After four hours of deliberation by the jury, the foreman sent a note to the trial judge stating that the jury members were unable to reach agreement at that time on the degree of guilt of the defendant and that it appeared that a unanimous verdict •could not be reached. The trial judge sent back a note stating: “You are instructed to continue your deliberations.” Appellant’s contention that the court’s instructions coerced the jury is overruled. Schumacker v. State, Tex.Cr.App., 106 S.W.2d 305.

The judgment is affirmed.