text:
    Edythe Westerfield BELL, Appellant, v. Glenn STILL, Appellee.
    No. 4345.
    Court of Civil Appeals of Texas. Waco.
    April 8, 1965.
    Rehearing Denied April 29, 1965.
    L. D. Gilmer, James F. Warren, Houston, for appellant.
    Coy U. Spawn, Jr., Kelley, Ryan & Merrill, C. O. Ryan, Houston, for appellee.
   WILSON, Justice.

The single question in this case is whether the probate court has jurisdiction to remove an independent executor for alleged mismanagement and malfeasance in the administration of an estate. The probate court and the district court on appeal concluded the probate court did not have this power. We affirm.

The case presents construction problems concerning Texas Probate Code Sec. 222 (b), Acts 1955, 54th Leg., p. 88, ch. 55, V.A.T.S. The statutory predecessor of this section governing removal of representatives was Art. 3467, Vernon’s Ann. Civ.Stat., which provided that an “executor” might be removed with notice. It was settled, as appellant concedes, that under this statute the probate court had no jurisdiction to remove an independent executor on grounds such as are here alleged. Perkins v. Wood, 63 Tex. 396, 399; Roy v. Whitaker, 92 Tex. 346, 48 S.W. 892, 897, 49 S.W. 367; Cocke v. Smith, 142 Tex. 396, 179 S.W.2d 954, 956, 957, judgment set aside, 179 S.W.2d 958; Edsall v. Hutchings, Tex.Civ.App., 143 S.W.2d 700, writ ref.; Hocker v. Stevens, Tex.Civ.App., 42 S.W.2d 473, 474, writ dism.; Roy v. Whitaker, Tex.Civ.App., 50 S.W. 491, 495; Simkins, Administration of Estates (1st ed.) 105; Woodward, 37 Tex.L.Rev., (1959) 831. See generally, Marschall, 33 Tex.L.Rev. 94 (1954).

Subsection (a) of the existing Probate Code, Section 222 relates to removal without notice of personal representatives “appointed under the provisions” of the Code. Subsection (b), however, is not so restricted; it authorizes the probate court to remove a “personal representative” upon notice for specified causes.

Probate Code Sec. 3(aa) as it existed before 1957 defined the term “personal representative” as used in the Code (“unless otherwise apparent from the context”) as including “independent executor”. By Acts 1957, 55th Leg., p. 53, ch. 31, Sec. 2(a), this definition was amended to add: “The Inclusion of independent executors herein shall not be held to subject such representatives to control of the courts in probate matters with respect to settlement of estates except as expressly provided by law.” This is the existing wording.

The term “settlement of estates” used in amended Sec. 3(aa) which defines “personal representatives” is to be read in connection with Probate Code Sec. 145, for these both relate to independent executors, and both refer to “settlement” of estates. They are in pari materia. State v. Dyer, 145 Tex. 586, 200 S.W.2d 813; Calvert v. Fort Worth National Bank, 163 Tex. 405, 356 S.W.2d 918, 921. Section 145 authorizes the testator to make testamentary provision that no other action shall be had in the county court in relation to the “settlement of his estate” than the probating and recording of the will and the filing of inventory, appraisement and list of claims.

By Acts 1957, 55th Leg., 53, ch. 31, Sec. 2(b) a new provision was added to Probate Code Sec. 145 providing that “as long as the estate is represented by an independent executor, further action of any nature shall not be had in the court except where this Code specifically and explicitly provides for some action in the court.

The literal effect, therefore, of the applicable provisions is to establish these general tests for ascertaining existence vel non of the power invoked in the present case: (1) whether removal of the independent executor for the assigned reasons requires the probate court to take action in connection with “settlement” of the estate, and (2) whether the Code “specifically and explicitly” provides for that action in the latter tribunal.

The Code does not specifically and explicitly provide for removal of independent executors except as the definition of “personal representatives” in Sec. 3(aa) may be said to do so. The latter section reiterates and underscores the limitation on the power to control independent executors. Rather than providing for action, the amendment prohibits control over probate matters which relate to the “settlement of the estate.”

Although solution of the problem is difficult, we are convinced it was not the legislative intent to overturn the established limits on the power of the probate court over independent executors.

“The Texas Probate Code was not designed to make any radical changes in the former probate law,” wrote reviser and committee adviser R. Dean Moorhead, 17A, Vernon’s Ann.Civ.Stat. iv; 16 Tex. Bar Journal 498; id. 18:373. “The primary goal of those who worked on the Code was to eliminate the conflicts, to clarify the ambiguities, to fill the gaps, to modernize some of the language, and otherwise to deal with particular statutes which had proved productive of problems. At the same time, however, the draftsmen sedulously sought to avoid changing any statute unless a change was deemed necessary for one of the aforementioned reasons.”

To permit the court to remove the trustee named by the testator for causes such as here charged, which involve passing upon his conduct in settling the estate, is to authorize accomplishment by obliquity what is prohibited to be done directly. If the asserted grounds of removal concern the acts of the independent executor in the settlement of the estate, as they do here, in that respect the power to remove is the power to control. On the other hand, the Legislature has not totally divested the county court of jurisdiction over independent executors who mismanage the estate or threaten to betray their trust. By Sec. 149 the Probate Code directs “specifically and explicitly” that in such case “upon proper proceedings had for that purpose, as in the case of executors and administrators acting under orders of the court, such executor may be required to give bond.” See Edsall v. Hutchings, Tex.Civ.App., 143 S.W.2d 700, 703, writ ref.; Perkins v. Wood, 63 Tex. 396.

In Roy v. Whitaker (1898), 92 Tex. 346, 48 S.W. 892, 896, 897, 49 S.W. 367, the Supreme Court considered “settlement” of estates in the context of Sec. 145 as it existed before the 1957 amendment and similar earlier statutes. After citing examples of the powers of independent executors and restrictions on those of the probate court; and after holding that prohibition of probate court power “arises out of the existence of a trustee to whom the testator has chosen to confide those powers,” the opinion analyzed articles of the probate statutes referring to “executors,” and reviewed decisions interpreting that word as including, or not, independent executors. The Supreme Court concluded:

“The effect of the foregoing cases is to establish the proposition that, except in those articles which relate to acts to be done in the settlement of an estate, the term ‘executors/ as used in our statutes, includes independent as well as other executors.”

The quoted holding is indentical and equivalent in principle to the language of the final sentence of amended Probate Code sec. 3(aa). With the statute and case law in this posture it was consistently held that the probate court did not have the power here invoked under Art. 3467 and its forerunners. The law in this respect, therefore, is as it was under Roy v. Whitaker. The decision is consequently controlling and conclusive of the present question. The probate court does not have jurisdiction to remove the independent executor on the grounds alleged.

Affirmed.

      . Probate Code See. 146 originally provided “The provisions of this Code shall not apply to independent executors except where Specifically made applicable thereto.” This sentence was eliminated by amendment, Acts 1957, 55th Leg., p. 58, ch. 31, Sec. 2(c). See Boyles v. Gresham, 158 Tex. 158, 309 S.W.2d 50, 53, 54; Woodward, 34 Tex.L.Rev. 691 (1956); id., 37 Tex.L.Rev. 833 (1959); and Melton v. Hahnel, Tex.Civ.App., 347 S.W.2d 350, writ ref. n. r. e., decided on facts arising before Acts 1957, 55th Leg., eh. 31 became effective.

      . For history of this legislation from 1848 see Cook v. Baker, Tex.Com.App., 45 S.W.2d 161, 165; Simkins, Administration of Estates (1st ed.) 103.


source: Caselaw Access Project

author: SELLERS, Justice.

license: Public Domain

text:
    D. H. ARNOLD et al., Appellants, v. CROCKETT INDEPENDENT SCHOOL DISTRICT, Appellee.
    No. 114.
    Court of Civil Appeals of Texas. Tyler.
    March 25, 1965.
    Rehearing Denied April 29, 1965.
    Earle P. Adams, Adams & Granberry, Crockett, for appellants.
    Jack McCreary, Arthur Mitchell, Mitchell & Gilbert, Austin, for appellee.
   SELLERS, Justice.

The Crockett Independent School District of Houston County, Appellee, brought this suit against D. H. Arnold and others, Appellants, all of Houston County, to recover delinquent taxes for the years 1959, 1960, 1961, and 1962. The appellants answer with a general denial; further no valid assessment of their property was made and further answered as follows:

“These Defendants further say that the assessment of each and every item of property as alleged in said Amended Petition was void, illegal, wrongful, arbitrary and confiscatory and the assessment thereof was made in violation of Art. 8, Section 1 of the Constitution of the State of Texas providing that all property shall be assessed in proportion to its value; that these properties were in fact assessed wholly out of proportion to its value, and out of proportion as compared to the value of others than these Defendants; and further, that district owned by others than these Defendants; and further, that these properties and each of them were assessed at amounts larger and greater than their actual values or their intrinsic values.”

The trial was to the court without a jury; and after having heard the pleadings, evidence and argument of counsel, the court found the law and facts to be with the ap-pellee and entered judgment against appellants in favor of appellee for a total sum of $8,244.41 taxes, $2,056.49 penalty and interest, together with foreclosure of tax lien on the property of appellants. The court further allowed the appellee to recover 15% attorney fees in the sum of $1,575.14 as cost in the court. From the above judgment the appellants have duly prosecuted this appeal.

The appellants requested the trial court to file findings of fact and conclusions of law, to which request the court complied. No objections were made in the trial court to the findings of fact or conclusions of law; however, the Statement of Facts has been brought up with the record.

The rule is well established that this court will not disturb the judgment of the trial court so long as there is evidence to sustain the judgment entered.

A number of appellants' assignments of error are to the effect that there is no evidence or insufficient evidence t© sustain the trial court’s finding that the properties of appellants were assessed at their fair value.

It is now provided by Statute Article 7326 that the delinquent tax records when properly introduced constitute prima facie evidence of the true and correct amount of taxes and cost due by the taxpayer. Stone v. City of Dallas, Tex.Civ.App., 244 S.W.2d 937. These records were introduced by the appellee as shown by the Statement of Facts.

It is observed that this is a suit for delinquent taxes for four years, brought by the School District against the appellants. The appellants did not question the validity of the tax assessment by mandamus or injunction; and as a result of waiting until they were sued by the School District for the tax, they lost the right to question the illegality of the tax, except to the excessiveness of the taxes on their property, and the burden was on the taxpayers to prove the amount of the excessiveness. City of Arlington v. Cannon, 153 Tex. 566, 271 S.W.2d 414.

In view of the foregoing, this court is of the opinion, after a review of the evidence, that the trial court’s judgment must be sustained.

The appellants have challenged the power of the attorney bringing the suit for the School District to bring the suit in behalf of the District. This question was not raised in the trial court and it seems cannot be raised for the first time on appeal. Victory v. State, Tex.Civ.App., 134 S.W.2d 477.

The appellants challenged that part of the judgment allowing appellee to recover as court cost 15% of the amount of the tax, penalty and interest as attorney fees. The pleadings of plaintiff is as follows;

“WHEREFORE, Plaintiff prays judgment against defendants for the total amount of said taxes, together with all penalties, interest and costs and other charges or expenses that may be or become legally due and owning, together with foreclosure of the tax lien against the above described real estate securing the amount against each tract of real estate above described and for personal judgment against said defendants owning any personal property described above at the time same was assessed for taxation for amounts shown to be due on it, together with all costs of suit, sinclud-ing fifteen per cent attorney fees.”

The court in its judgment found as follows:

“AND IT IS FURTHER ORDERED, ADJUDGED and DECREED that the plaintiff have and recover from the defendant the sum of ONE THOUSAND FIVE HUNDRED SEVENTY-FIVE DOLLARS AND FOURTEEN CENTS ($1,575.14) in attorney fees, said amount being fifteen percent (15%) of the amount of the judgment herein recovered, together with intérest at the rate of six percent (6%) per annum on said sum from date until paid.”

It is apparent from the record that the appellee has contracted with the attorney for the collection of its delinquent taxes and has agreed to pay him 15% of the tax, penalty and interest collected as his fee. This arrangement has been sustained by the courts. Bell v. Mansfield Independent School District, 133 Tex. 403, 129 S.W.2d 629.

It will be observed from a reading of the above case that the right of an independent school district for the collection of its delinquent taxes is not governed by the provisions of Article 7343 which limits the rights of cities and towns to pay the city attorney or some other competent attorney of the county to file suit for the collection of its delinquent taxes, and the city attorney or such other attorney filing the suit shall be entitled to the same fee as allowed by the county attorney or district attorney in suits for the collection of city and county taxes to be taxed as cost in the suit. It is pointed out in the opinion that the fee allowed city and district attorneys in collecting the delinquent taxes of a city or town is fixed by Article 7332 not to exceed in any case the sum of $5.00.

It is then pointed out in the opinion that the right of an independent school district to collect its delinquent taxes is provided for by this language in the same statute “[that] independent school districts may lawfully contract to pay the fees provided by law in suits for [the collection] of state and county taxes”; and since the commissioner’s court is authorized to employ some other attorney to collect its state and county delinquent taxes and pay a percentage of the tax, penalty and interest as the attorney’s compensation, provided for by Article 7335, and which fee is limited to 15% of tax, penalty and interest actually collected, by Article 7335a. The independent school district has the same right to contract for the collection of its taxes.

We are of the opinion that, since the school district gets its authority to contract and pay its attorney 15% of the tax, penalty and interest as a fee for the collection of its delinquent taxes from Articles 7343, 7335 and 7335a, and since neither of said statutes authorize said fee to be taxed as cost in a suit for the collection of such taxes, the court was in error in allowing same to be recovered and taxed as court cost in this suit.

The judgment of the trial court is reversed insofar as the same allows 15% of tax, penalty and interest to be recovered and charged as cost. In all other respects, the judgment of the trial court is affirmed.


author: McDONALD, Chief Justice.

text:
    Earl CARAWAY, Appellant, v. Winifred Caraway HENDRIX et vir, Appellees.
    No. 4353.
    Court of Civil Appeals of Texas. Waco.
    March 25, 1965.
    Rehearing Denied April 15, 1965.
    Davis & Wright, Thad W. Davis, Free-port, Madison Wright, Lake Jackson, for appellant.
    Morgan & Nobles, Decatur, Anthony Willy, Freeport, for appellees.
   McDONALD, Chief Justice.

This is an appeal from an order overruling a plea of privilege by the defendant, to be sued in the county of his residence, in a child custody case. Plaintiff Winifred Hendrix and defendant Earl Caraway were formerly husband and wife; were divorced in Wise County in 1960; and such decree of divorce awarded the custody of the minor Richard Warren Caraway to defendant. Thereafter, in 1963, the District Court of Wise County denied a change of custody, and decreed the minor’s custody in defendant, but that plaintiff would have custody from June 1st to August 31st of each year. On July 13, 1964, and during the 3 months’ period plaintiff had custody of the minor child in Brazoria County, plaintiff filed this suit in Brazoria County against defendant, for change of permanent custody of the minor child. Defendant filed his plea of privilege to be sued in Wise County, the county of his residence. Plaintiff controverted such plea on the ground that plaintiff had the custody of the child in Brazoria County at the time of filing suit and that for this reason venue was properly sustainable in Brazoria County; and that defendant had waived his plea of privilege.

Trial was before the court which overruled defendant’s plea of privilege.

Defendant appeals, contending the Trial Court erred in overruling his plea of privilege, and that venue in a child custody case is in the county of the defendant’s residence. Suits for custody of minor children are governed by the general law of venue, and venue lies in the county of the residence of the defendant. Shaver v. Shaver, Tex.Civ.App., 383 S.W.2d 259 (n. w. h.); Knollhoff v. Norris, 152 Tex. 231, 256 S.W.2d 79; Lakey v. McCarroll, 134 Tex. 191, 134 S.W.2d 1016; Gathright v. Riggs, Tex.Civ.App., 344 S.W.2d 757 (n. w. h.); Steele v. Steele, Tex.Civ.App., 251 S.W.2d 258 (n. w. h.). Defendant’s contention is sustained.

We have examined the record, and defendant did not waive his plea of privilege.

The judgment is reversed and judgment here rendered transferring the cause to the District Court of Wise County. Reversed and rendered.


author: PHILLIPS, Justice.

text:
    Jim GANDY, Appellant, v. Wayne C. PEMBERTON, Appellee.
    No. 11284.
    Court of Civil Appeals of Texas. Austin.
    April 7, 1965.
    Rehearing Denied April 28, 1965.
    Charles C. Smith, Jr., Cameron, for appellant.
    John B. Henderson, Jr., Cameron, Clark, Thomas, Harris, Denius & Winters, Mary Joe Carrol, Austin, for appellee.
   PHILLIPS, Justice.

This is a trespass to try title case involving 60 acres of land, more or less, in Milam County, Texas. Appellee, as plaintiff in the trial court, alleged facts necessary to establish title and right to possession under the three, five, ten and twenty-five year statute of limitations as well as establishing record title to the land involved.

Appellant, as defendant, entered a plea of not guilty and further asserted a limitation title to the property under the three, five and ten year statutes.

The trial court entered judgment for plaintiff, appellee here. Thereafter, at the request of the appellant, the trial court prepared and filed findings of fact and con-elusions of law holding that appellee not only had established title to the land under the five and ten year statute of limitations, Articles 5509, 5510, Vernon’s Ann.Civ.St., but also that appellee holds the legal record title.

We affirm the judgment of the trial court.

Appellant is before this Court on a single point of error, namely, that of the trial court in rendering judgment for appellee for the title to and the possession of the 60 acre tract of land involved because of the failure of the court’s judgment to describe the 60 acres of land so that it can be identified with certainty.

We overrule this point.

Appellee established that his claim is based upon duly recorded deeds, the first in the chain being dated and filed for record on December 9, 1903. There is no question with regard to the authenticity of any deed.

J. L. York, the grantee in the 1903 deed, went into possession in that year. He himself used and occupied the subject property from that time until the 1940’s. After J. L. York moved into town shortly before his death, the property was leased to various individuals and remained under consecutive leases until purchased by appellee in July, 1963.

The property was fenced as early as 1910, possibly before, and has remained under fence continually. The land has consistently, throughout the period of time from 1910 until the present, been used by York, his tenants, and the tenants of his estate, for pasturing stock. This possession has been continuous and exclusive.

From 1919 through and including 1963, J. L. York and M. L. York rendered and paid taxes on the subject property. Appel-lee purchased the property in question from the York heirs in 1963.

These facts amply sustain the trial court’s findings and conclusions that appel-lee is entitled to title and possession under the five and ten year statutes of limitations, Arts. 5509 and 5510, V.C.S. Dargan v. Keystone Mills Company, 126 Tex. 80, 86 S.W.2d 627; Clark v. United Production Corporation, Tex.Civ.App., 156 S.W.2d 1022, writ ref., W. M.

In describing the long tenure of the Yorks on the land in question, witnesses repeatedly described the property as the “York Hog Pasture” and repeatedly identified it with respect to adjoining estates and other monuments on the ground. There was no question but that the Yorks had owned and occupied “York Hog Pasture” for more than 50 years and that the location of the pasture was well known in the community.

In addition to appellee having established a notorious and adverse possession on the part of the Yorks for some forty or fifty years, when the property was first conveyed to the Yorks in 1903 by one Spencer Ford, it was described by metes and bounds. These are the same metes and bounds set out in the appellee’s petition in the trial court and the same metes and bounds set out in the trial court’s judgment in this case. There is testimony from an abstractor in Milam County verifying this description and testifying that the property lies on the ground as described by the calls in the original deed.

The abovementioned Spencer Ford is also the source of appellant’s title to a parcel of land adjoining the property in question. The property in question was excepted from the land conveyed to appellant’s predecessor in title.

Rule 783, Texas Rules of Civil Procedure, with regard to the requirements of property description in a trespass to try title suit, specifies:

“A description of the premises by metes and bounds, or with sufficient certainty to identify the same, so that from such description possession thereof may be delivered, and state the county or counties in which the same are situated.”

Appellee has fulfilled all of these requirements.

As we understand appellant’s position with respect to the description of the land, said description identifies the land as being out of the McLennan Survey while in fact it is partially in the McLennan Survey and partially in the Ruiz Survey. Should this be true, it is not controlling here.

See Morse v. Southerland, Tex.Civ.App., 318 S.W.2d 709.

The judgment of the trial court is affirmed.

Affirmed.


text:
    JIM SANDERS FORD COMPANY, Appellant, v. Peter P. ONTIVEROS, Appellee.
    No. 4320.
    Court of Civil Appeals of Texas. Waco.
    April 8, 1965.
    Rehearing Denied April 29, 1965.
    Lee Ducofif, Bernard L. Chanon, Houston, for appellant.
    Sólito, Vetrano & Murr, Anthony L. Ve-trano, Jr., Houston, for appellee.
   McDONALD, Chief Justice.

This is an appeal from a judgment awarding plaintiff $2500 exemplary damages in a fraud suit.

Plaintiff Ontiveros sued defendant Motor Company for fraud, alleging that plaintiff, as a result of defendant’s false representations, orally contracted with defendant to purchase a new Ford automobile for $2710; that plaintiff paid $800 in cash, and was to pay the balance of $1910 upon delivery of the car the following day; that defendant had plaintiff sign a partially completed contract which was contrary to the parties’ agreement, and which recited a balance due of $2710; that this made for a total price for the car of $3510, which was some $300 more than the suggested retail price on the window of the car; that the following day defendant refused to accept the $1910 and deliver the car, and refused to return the $800 plaintiff had paid to it. Plaintiff prayed for $800 actual damages, and $5420 punitive damages.

Defendant answered by numerous special exceptions; denied any fraud; and plead that the written contract between plaintiff and defendant required plaintiff to pay $3510 for the car, and that oral promises behind the written contract are inadmissible. (The written contract provided that plaintiff forfeit the $800 down payment, unless balance be paid the following day.)

Prior to trial, defendant paid into the registry of the court $800 for plaintiff’s account, and plaintiff drew such $800 down. The order paying plaintiff the $800 recited that “the $800 being paid to the plaintiff represents the repayment to said plaintiff of the down payment on the automobile purchased by him from the defendant, which amount has been agreed upon by the parties, and further said parties having agreed to the repayment to the plaintiff of said amount.” Such order further recited the cause shall remain on the docket for trial on the issue of punitive damages.

The cause subsequently went to trial on the issue of punitive damages, to a jury which, in answer to issues submitted, found:

1)On 23 May 1962 defendant represented to plaintiff it would deliver to plaintiff on the following day the automobile in question, upon payment of $1900, in addition to the $800 down payment.
2) At the time of making such representation defendant did not intend to carry out such promise.
3) Plaintiff believed such representation and relied thereon.
4) Such representation was a material inducement which caused plaintiff to pay defendant the $800.
5) Plaintiff would not have paid defendant the $800 had such representation not been made.
6) Such representation was made with malice.
7) The jury assessed $2500 against defendant as exemplary damages.
8) Plaintiff did not agree to pay defendant $3500 for the automobile in question.

Defendant appeals on 19 points presenting 4 basic contentions.

Defendant’s 1st contention is that the Trial Court erred in not granting a hearing on its Special Exceptions. It appears from the record that such exceptions were not timely filed and were waived by defendant. Moreover, an examination of such exceptions reflects that they could not affect the outcome of the suit under the record.

Defendant’s 2nd contention is that the Trial Court erred in overruling its motion for continuance. Defendant’s motion was not verified, as required by Rule 25, Texas Rules of Civil Procedure, and was properly overruled.

Defendant’s 3rd contention is that the Trial Court erred in overruling its objections to the charge. The record reflects that the objections to the charge were not filed until after verdict and that the Trial Court declined to rule on them. The Trial Court’s action was proper. Rule 272 T.R. C.P.

Defendant’s 4th contention is that the jury’s answers to the issues submitted are supported by no evidence or insufficient evidence, and that the verdict is excessive. A review of the record reflects that defendant offered to sell plaintiff the car in question for $800 down and $1910 to be paid the following day. The following day defendant refused to deliver the car on tender of the $1910, and refused to return plaintiff’s $800. From the record we think the jury was entitled to believe that the defendant acted wilfully and fraudulently, and that the evidence is ample to support the verdict, and that the award is not excessive.

All of defendant’s points and contentions have been considered and are overruled.

Affirmed.


author: WADDILL, Commissioner.

text:
    Henry KEETON et al., Appellants, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellee.
    Court of Appeals of Kentucky.
    March 19, 1965.
    Marcus Mann, Salyersville, for appellants.
    Robert Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Jarvis Allen, Prestonsburg, for appellee.
   WADDILL, Commissioner.

While appellants were proceeding in a truck through a cut on highway #60 in Magoffin County, a mass of falling rock, dirt and other debris struck appellants’ vehicle injuring both of them.

They filed claims for damages against the Commonwealth, Department of Highways pursuant to KRS 44.070 et seq. Following a hearing the Board of Claims found that the employees of the department had not been negligent in the maintenance of this highway and the board entered an order dismissing their claims.

On this appeal from a judgment of the Magoffin Circuit Court upholding the order the crucial question is whether, assuming that the appellants’ evidence would require a favorable finding unless explained or rebutted, the appellee’s evidence was sufficient to remove its otherwise conclusive effect, leaving the matter up to the fact-finding agency. See Shrader v. Commonwealth, 309 Ky. 553, 218 S.W.2d 406.

The maintenance foreman and the district engineer testified that they inspected this road and its right-of-way regularly and had been over it a few days prior to the rock fall, and that their inspections did not disclose the existence of a dangerous condition. It was also shown without contradiction that none of the employees of the department had ever received notice of any faulty maintenance of this section of the highway. Thus, there is ample evidence to support the finding and order of the board.

The judgment is affirmed.

HILL, J., dissenting.


author:
WILLIAMS, Judge.
      MONTGOMERY, Judge

text:
    John Shelby WILSON et al., Appellants, v. Virginia A. JOHNSON et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 5, 1965.
    Rehearing Denied May 21, 1965.
    C. E. Schindler, Louisville, for appellants.
    Frank K. Bowman, Jr., Cincinnati, Ohio, William O. Ware, Covington, for Johnson.
    Charles S. Adams, Covington, for 1st Nat. Bank and Trust Co.
    Malcolm R. Rhoads, Newport, H. G. Hightower, Cincinnati, Ohio, for Salvation Army.
    S.J. Stallings, Louisville, Joseph J. Leary, Frankfort, amici curiae.
   WILLIAMS, Judge.

This is an appeal from a judgment of the Kenton Circuit Court denying appellants’ claim to the remainder interest in the estate of Elizabeth P. Johnson. The court decreed that the entire estate passed to the Salvation Army, owner of Booth Memorial Hospital.

Elizabeth P. Johnson died testate in 1929. Her son, Leslie H. Johnson, became life beneficiary of her estate. At that time he was a mature married man with no children, although his wife had two children by a former marriage. Their ages were approxi» mately 20 and 24 at the time the will was made. They are the appellants.

On November 7, 1956, Leslie H. Johnson adopted the appellants. On April 26, 1958, Leslie H. Johnson died without leaving any child or issue of his own body. His first wife had died before his death and he had remarried. However, no question as to the surviving wife’s interest in the estate is before us.

Determination of the litigation hinges on the construction to be given the ninth paragraph of the will of Elizabeth P. Johnson s

“I direct that the net income from this trust be paid in monthly installments to my son, Leslie H. Johnson, so long as he shall live. At his death should his wife survive him, I direct that the net income therefrom be paid unto her, so long as she lives and remains his widow. At her death or remarriage, this trust is terminated as to her, and my trustee is directed to pay the income therefrom, or as much thereof, as is required for the maintenance, support and education of the youngest children of Leslie, if any there be. When the youngest of said children, the mother and father being dead, shall become twenty-one (21) years of age, this trust shall terminate, and the principal shall then be divided equally between the children of Leslie living at that time. If no such children be living at the time of the termination of this trust, as herein before set out, then the principal thereof shall be paid unto the Booth Memorial Hospital of Covington, Kentucky.”

The pertinent adoption statutes in effect at the time of Leslie H. Johnson’s death were KRS 405.39a and KRS 199.520(2).

"KRS 405.390. Adoption of an adult. An adult person over twenty-one years of age may be adopted in the same man-ñer as provided by law for the adoption of a child and with the same legal effect, except that his consent alone to such adoption shall be required.”
“KRS 199.520(2). From and after the date of the judgment the child shall be deemed the child of petitioners and shall be considered for purposes of inheritance and succession and for all other legal considerations, the natural, legitimate child of the parents adopting it the same as if born of their bodies. * * *"

From time to time this Court has had occasion to determine a testator’s intent from the language used in his will in view of the prevailing adoption statutes.

In Copeland v. State Bank & Trust Co., 300 Ky. 432, 188 S.W.2d 1017 (1945), it was held that the terms “heirs” and “issue” as well as “children” and words of similar import in a will refer to natural and blood relationships and do not include an adopted child in the absence of circumstances clearly showing that the testator so intended.

Isaacs v. Manning, 312 Ky. 326, 227 S.W.2d 418 (1950), announced the rule that, where no language showing a contrary intent appears in the will, an adopted daughter falls within the class designated as “legal heirs.”

The ruling that the adoption statute in effect at the testator’s death rather than at the expiration of the intermediate estate should control the question of whether an adopted child should come within the class designated by the will as “children” of the life tenant as declared in Copeland v. State Bank & Trust Co., supra, was abandoned in Major v. Katnmer, Ky., 258 S.W.2d 506 (1953). To that extent Copeland was specifically overruled. The Major case stands for the proposition that an adopted child may inherit through as well as from the adoptive parent and is to be considered as included within the designation of “heirs” or “heirs at law” of the adoptive parent unless a contrary intention is apparent.

In Bedinger v. Graybill’s Ex’r, Ky., 302 S.W.2d 594 (1957), the Court was concerned with a situation where a husband had adopted his wife. Although shocked at an adoption so bizarre, the Court held the statute authorizing the adoption of an adult permitted a husband to adopt his wife and thus make her his heir within the provision of his mother’s will that the corpus of a testamentary trust should go at his death to his “heirs at law.”

This Court’s opinion in Edmands v. Tice, Ky., 324 S.W.2d 491 (1959), recognized that the rule in the Copeland case had been reversed in the Major case. Edmands holds that the use of the word “children” in a will does not show a clear intent to exclude an adopted child.

In construing a will the court is controlled by the intention of the testator as evidenced by the instrument as a whole. Gratz v. Hamilton, Ky., 309 S.W.2d 181 (1958). Our late cases held that, when the testator used the classifications “legal heirs,” “heirs,” “heirs at law,” or “children,” he intended to include persons thereafter adopted. This conclusion was bolstered by the fact that adoption is and has been an accepted practice at least since ancient Biblical times. See Bedinger v. Graybill’s Ex’r, supra.

We are impressed with the fact that the primary and customary conception of the adoption procedure is that it establishes a social relationship of parent and child. Secondarily, it makes the adopted child eligible to inherit property the same as a natural child. Knowing that, we search for the testator’s intention when he uses words of known definitive classification. When he uses the words “heir,” “legal heir,” or “heir at law,” he is cognizant of the fact that those classifications include adopted persons as well as other persons of varied degrees of kinship of various ages. And, when he uses the classification “children” he knows that no relative of any other degree will be included.

By our statutes an adult may be adopted in the same manner as a child. But by virtue of such fact he does not ipso facto become a child. True, the legal effect of adoption is that he shall be considered for all legal considerations the natural child of the adopting parents. But, except for strict legal considerations, an adopted adult is not ordinarily considered a child of the adopting parents. On the other hand, a child adopted before he becomes an adult is considered for all purposes a child of the adopting parents. He ordinarily moves into the household and becomes one of the children in fact as well as by law.

We conclude that, when a testator uses the classification “children,” he is thinking of and intends to use the word in its commonly accepted meaning. He is thinking of those persons who were actually born of the parents, or, if adopted, were adopted as children. The two occupy the same status, and it matters not whether they have reached maturity at the time the estate is settled.

It is reasonable to conclude that, when the testator employs the classification “children,” he does not wish persons other than children to be included. If he desired to include other persons, he could employ the classification “heirs” or “heirs at law,” which would include not only children but uncles, aunts, cousins, et cetera, and not only children who had been adopted as minors but also those persons adopted after they had reached their maturity. To the extent that Edmands v. Tice, Ky., 324 S.W.2d 491 (1959), expresses a contrary view, it is expressly overruled.

And so we return to the will under consideration. It provides that the property shall go to the “children” of Leslie H. Johnson. The appellants were approximately 48 and 52 at the time they were adopted by Leslie. They did not come within the classification of “children” as used in Elizabeth P. Johnson’s will.

The j udgment is affirmed.

MONTGOMERY, Judge

(dissenting).

I agree with the result in the majority opinion but disagree with the reasoning. As indicated in previous dissents in the Bedinger and Edmands cases, I feel that the correct rule is stated in Copeland v. State Bank & Trust Company, 300 Ky. 432, 188 S.W.2d 1017.

The majority opinion speaks of adoption as an accepted practice since Biblical times. However, as pointed out in the dissent in the Bedinger case, consanguinity is so fundamental in the passage of property by inheritance and by will any course of descent that will take property of deceased persons out of the current of their blood stream should be expressed in explicit and unmistakable language. 1 Am.Jur., Adoption of Children, Section 63, page 664; 2 C.J.S. Adoption of Children § 63d, page 455.

Further, I feel that the Court has overlooked the fact that the status of adoption while creating ordinarily the incidents of the relation of parent and child between the adoptive parent and the adopted child, does not determine or change the status of the adopted child as to any person such as the testator who is not a party to the adoption proceeding, especially a testator who has been dead for years, as in the Bedinger and Edmands cases and in this case. 2 C.J.S. Adoption of Children § 57a, page 449.

There is a further policy reason why the Court should reject in toto the absurd results reached in the cases mentioned. The increased frequency with which these cases are arising raises the question of whether, as the word gets around, there will be more adoption or treasure hunts as they may be called which take advantage of the provision in a will wherein an estate is left for life with remainder to children, heirs, etc. In every such instance where there are no children or heirs, the way has been opened by use of adoption to take advantage of the testator and his estate. This seems to me to be highly objectionable. All that the majority opinion does is to lower the age limit of the potential beneficiary of any such modern day piracy.

I, therefore, respectfully dissent.


author: CLAY, Commissioner.

text:
    John H. STEPHENSON, Appellant, v. LOUISVILLE AND JEFFERSON COUNTY BOARD OF HEALTH et al., Appellees.
    Court of Appeals of Kentucky.
    March 26, 1965.

      S. Rush Nicholson, James A. Hubbs, Nicholson & Hubbs, Louisville, for appellant.
    Henry V. B. Denzer, Louisville, for ap-pellees.
   CLAY, Commissioner.

This is an action for negligence brought against the Louisville and Jefferson County Board of Health and the Louisville General Hospital. Appellant alleges he suffered personal injuries while undergoing treatment in the hospital as a paying patient. The trial court dismissed the complaint on the ground the defendants were not suable for this tort.

The trial judge followed the law then prevailing with respect to governmental immunity. It has since been significantly changed (which effectively .renders the parties’ appeal briefs obsolete on this point). In Haney v. City of Lexington, Ky., 386 S.W.2d 738 (decided May 22, 1964), and Burton v. Somerset City Hospital, Ky., 388 S.W.2d 134 (decided March 12, 1965), we repudiated the doctrine of governmental immunity as it applied to municipal corporations. We had theretofore in Mullikin v. Jewish Hospital Ass’n of Louisville, Ky., 348 S.W.2d 930, abandoned the immunity doctrine as it applied to charitable institutions.

The Louisville and Jefferson County Board of Health was created by KRS 212.350. It was designated “a body politic and corporate”, with power to “sue and be sued”. The property theretofore belonging to the City of Louisville and Jefferson County, used for health purposes (which includes the Louisville General Hospital), was transferred to the Board. KRS 212.360.

It seems clear that the Board of Health is a municipal corporation. 37 Am. Jur., Municipal Corporations, Section 3 (page 618). In this respect it is in the same category as the Louisville and Jefferson County Metropolitan Sewer District and the Louisville and Jefferson County Air Board. See Rash v. Louisville & Jefferson County Met. S. Dist., 309 Ky. 442, 217 S.W.2d 232; Johnson v. City of Louisville, Ky., 261 S.W.2d 429; Louisville & Jefferson County Air Board v. American Airlines, Inc., D.C., 160 F.Supp. 771 (reversed on other grounds, 6 Cir., 269 F.2d 811). Since it is such a governmental unit, it falls squarely under the decision in Haney v. City of Lexington, Ky., 386 S.W.2d 738 (decided May 22, 1964), and consequently cannot claim governmental immunity.

Appellees contend that KRS 67.186 establishes the immunity of a county or county operated hospital. The simple answer to this argument is that this suit is not against a county or a county operated hospital. (We do not have before us the question of whether the “Louisville General Hospital” is a legal entity which is subject to suit, regardless of the question of immunity.)

The doctrine of state immunity from suit, decided in Foley Construction Co. v. Ward, Ky., 375 S.W.2d 392, for obvious reasons does not apply. See Gnau v. Louisville & Jefferson County Metropolitan Sewer District, Ky., 346 S.W.2d 754.

The judgment is reversed for further proceedings consistent with this opinion.

STEWART and MONTGOMERY, JJ.„ dissenting.

      . There is serious question that this statute does (if it constitutionally could) create county immunity»


author: NORVELL, Justice. GRIFFIN, Justice

text:
    Ralph COMPTON, Petitioner, v. Robbie Cecile JAY, Respondent.
    No. A-10295.
    Supreme Court of Texas.
    April 14, 1965.
    Rehearing Denied May 12, 1965.
    Kenley, Ritter & Boyland, Jack N. Price, Longview, for petitioner.
    Jones, Brian, Jones & Baldwin, Marshall, for respondent.
   NORVELL, Justice.

Robbie Ceciie Jay recovered a judgment against Ralph Compton for personal injuries suffered in an automobile collision. The Court of Civil Appeals affirmed. 379 S.W.2d 933.

Petitioner Compton presents one point of error in which he contends that the trial court committed reversible error by receiving in evidence (in a jury case) proof of his prior felony convictions for driving a motor vehicle while intoxicated. Respondents contend that such convictions were admissible (a) to impeach the credibility of Compton as a witness and (b) to corroborate other evidence in the case which tended to show that Compton was intoxicated when the collision giving rise to the present action occurred.

Respondent does not contend that the offenses of which petitioner was convicted involved moral turpitude, but does say that proof of any felony is admissible for impeachment purposes as bearing upon the witness’ credibility. Cf. Traders & General Ins. Co. v. Russell, 99 S.W.2d 1079 (Tex.Civ.App., wr. dis. 1936); Drazen v. New Haven Taxicab Co., 95 Conn. 500, 111 A. 861.

In our opinion the prior convictions of the petitioner were not admissible either for impeachment or corroborating purposes as contended by respondent. We are further of the opinion that the error in admitting such convictions was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. Casualty Ins. Co. of California v. Salinas, 160 Tex. 445, 333 S.W.2d 109, 90 A.L.R.2d 1056 (1960).

Before the trial, petitioner was required to answer written interrogatories concerning previous violations of traffic regulations. His answers revealed three convictions of the felony offense of driving while intoxicated — one in April, 1962, another in August, 1962, and a third in January, 1963, (the date of the collision involved here). He filed a motion in limine to restrain respondent from introducing evidence of the two prior convictions not directly connected with the suit. The trial court first granted the motion, but reversed its ruling just before the close of evidence, and allowed petitioner to be recalled and questioned concerning the admitted convictions.

At common law convictions of a felony or other “infamous crime” rendered a witness wholly incompetent to testify. This rule obtained in Texas in both civil and criminal cases until the enactment in 1925 of Art. 3717, Vernon’s Ann.Tex.Stats., removing the incompetency in civil cases of those who have been convicted of felonies. See, McCormick & Ray, “Texas Law of Evidence” (2d ed.) § 301. During the early development of Texas law the Supreme Court also formulated the rule that the credibility of a witness could be attacked only by showing his general reputation for lack of truth and veracity. Boon v. Weathered’s Adm’r, 23 Tex. 675 (1859). This is still the general rule, but it is now quite clear that in Texas, as in most other 'jurisdictions, convictions of certain specific crimes are admissible for the purpose of impeaching a witness. The difficult question, and one which is the subject of much confusion both here and elsewhere, is what types of crimes may be used for this purpose.

Dean Wigmore in his treatise on Evidence (3rd ed.) § 926 says:

“In those jurisdictions in which veracity-character alone is allowed to be used to impeach, it would logically follow that when particular instances of misconduct are allowed to be used as throwing light on credibility — that is to say, convictions of crime, when shown by extrinsic evidence * * * —only such instances should be used as are relevant to show a lack of truthfulness of disposition, — for example, forgery, cheating and the like.
“Entire consistency, however, is not shown in thus carrying out the strict principle * * * although logic and policy alike require such a restriction.”

Perhaps the earliest Texas case to uphold admission of proof of conviction to impeach a witness was Gulf, Colorado & Santa Fe Ry. Co. v. Gibson, 42 Tex.Civ.App. 306, 93 S.W. 469 (wr. ref., 1906). In that case the witness had been convicted of a felony, but had been pardoned by the Governor after agreeing to testify in the case. The court upheld the admission of the conviction on the ground that the traditional reasons for exclusion-unfair surprise and confusion of the issues» — are absent when the record of judgment of conviction is introduced. The court did not indicate the nature of the crime involved, nor did it attempt to distinguish felonies from misdemeanors, but held only that “proof by the record of conviction of crime is universally conceded to be a proper mode of impeachment.”

A distinction between misdemeanors and felonies was made in Huff v. McMichael, 60 Tex.Civ.App. 379, 127 S.W. 574 (no wr. hist, 1910). A witness had been convicted of mail fraud and the court, being of the impression that it was a misdemeanor due to the fine involved, held it inadmissible for impeachment. When, on motion for rehearing, it was shown that the conviction was of a felony, the court held that it was admissible, citing the Gibson case as controlling.

The Gibson and McMichael cases were cited with approval when, in Kennedy v. International-Great Northern R. Co., 1 S.W.2d 581 (Tex.Com.App., 1928), it was held to be error to exclude evidence that Kennedy, a party-witness, had been convicted of felony theft. After reviewing a number of cases, the Commission determined “that in no instance has the Supreme Court decided that proof of conviction of a felony, or even proof of conviction of a misdemeanor, is irrelevant or otherwise inadmissible for purposes of impeachment.” It was, however, further stated in the opinion that:

“In the present case the conviction was for a felony involving moral turpitude and upon a plea of guilty. We neither express nor imply an opinion about convictions of offenses of other kinds or about a conviction otherwise secured, but, upon principle and authority, we believe this evidence was improperly excluded.”

The importance of the element of moral turpitude was emphasized in Texas & New Orleans Ry. Co. v. Parry, 12 S.W.2d 997 (Tex.Com.App., holding approved, 1929) which more precisely defined the limited rule of admissibility. The trial court had excluded evidence concerning four thefts which an important witness had “practically admitted” in court, but for which no convictions were shown. While the Commission did not hold that such exclusion was erroneous upon the record before it, it did say in view of a reversal upon another point that:

“The rule is that where the witness has been legally charged by indictment, complaint, or information and complaint, with an offense involving moral turpitude, and has been legally convicted of such offense in a court of competent jurisdiction, or where the witness has been so legally charged with such offense, and presently admits his guilt, then such matters are admissible in evidence touching his credibility as a witness.” (Italics added.)

Although this statement is by way of dictum, it has been cited in most subsequent cases which consider the question. It is the basis for the analysis by two eminent writers that the Texas rule in civil cases is that proof of conviction of any crime— whether a felony or misdemeanor — may be shown only if it involves moral turpitude. See McCormick & Ray, Texas Law of Evidence (2d ed.) § 660; Lieck’s Legal Trial Aid, 2d ed., p. 142.

The decisions of the Courts of Civil Appeals upon the point have not been uniform. Some have indicated that conviction of any felony is admissible for impeachment. See, Transport Ins. Co. v. Cossaboon, 291 S.W.2d 746 (Tex.Civ.App., 1956, wr. ref. n. r. e,); General Ins. Co. v. Handy, 267 S.W.2d 622 (Tex.Civ.App., wr. ref. n. r. e., 1954); York v. Glenn, 242 S.W.2d 653 (Tex.Civ.App., no wr. hist., 1951). The great majority of the cases, however, have adhered to the Parry rule, and have limited impeachment to those crimes involving moral turpitude. Travelers Ins. Co. v. Jordan, 339 S.W.2d 235 (Tex.Civ.App., wr. ref. n. r. e., 1960); Fenton v. Wade, 303 S.W.2d 816 (Tex.Civ.App., wr. ref., n. r. e., 1957); Texas Employers’ Ins. Ass’n v. Curry, 290 S.W.2d 767 (Tex.Civ.App., wr. ref., n. r. e., 1956); Evans v. Jacobs, 228 S.W.2d 545 (Tex.Civ.App., no wr. hist., 1950); Associated Employers Lloyds v. Tullos, 197 S.W.2d 210 (Tex.Civ.App., wr. ref., n. r. e., 1946); Kansas City, M. & O. Ry. Co. of Texas v. Foster, 38 S.W.2d 391 (Tex.Civ.App., no wr. hist., 1931).

While the term moral turpitude is not always explicitly defined by the cases, we believe that it represents a preferable standard to the arbitrary rule urged by respondent which would allow admission of any felony for purposes of impeachment. The term includes more than crimes of perjury, forgery and the like. See, Drazen v. New Haven Taxicab Co., 95 Conn. 500, 111 A. 861 (1920). And while the view which would limit attacks on credibility to proof of such logically relevant crimen falsi is very persuasive we do not feel disposed toward overturning a rule which originated with the approval of this Court and which has enjoyed wide acceptance in this state for many years. On the other hand, we are not disposed to relax the accepted rule so as to admit evidence which might have a highly prejudicial effect, although it would have little or no logical bearing upon the issue of credibility.

We are unable to agree with the holding of the Court of Civil Appeals that proof of petitioner’s prior convictions was admissible to corroborate evidence tending to show that he was intoxicated at the time of the collision upon the theory that a “habit of intemperance” was shown thereby.

Upon the trial petitioner admitted pleading guilty to a charge of driving while intoxicated which arose out of the collision. He also testified that he had had “three or four beers,” but denied that he was intoxicated or that his driving competency had been affected. On the other hand, there was no testimony offered to show that petitioner had a reputation for insobriety, or that he drank habitually or even frequently. Further, evidence of the convictions was not brought forth until petitioner was recalled just prior to the closing of evidence, and no attempt was made to show for what purpose such convictions were introduced or to connect them with the collision in any way.

If there be some evidence indicating that a party was intoxicated at the time of the accident in question, it may be corroborated by evidence that he was frequently or habitually drunk. R. T. Herrin Petroleum Transport Co. v. Proctor, 161 Tex. 222, 338 S.W.2d 422 (1960); McCarty v. Gappelberg, 273 S.W.2d 943 (Tex.Civ.App., wr. ref., n. r. e., 1954); Robinson v. Lovell, 238 S.W.2d 294 (Tex.Civ.App., wr. ref., n. r. e., 1951); Lewis v. Houston Electric Co., 39 Tex.Civ.App. 625, 112 S.W. 593 (no wr. hist., 1905). See, also McCormick & Ray, 2d ed., Texas Law of Evidence, § 1512; 23 Tex.Jur.2d § 155. The question raised by the present case is whether such a history of intemperance is indicated by two isolated instances of driving while intoxicated.

In McCormick & Ray, 2d ed., § 162, habit is defined as a “regular response to a repeated specific situation,” and it is stated that the phrase habits of intemperance “may denote a general disposition for excessive drinking, or may amount to a specific habit of drinking a certain number of glasses of whiskey every day * * * The probative force of such “habits’ to prove drunkenness on a particular occasion depends on the degree of regularity of the practice and its coincidence with the occasion.”

The importance of the frequency of indulgence as a criterion for determining the existence of habits of intemperance is also emphasized by Wigmore. He says at § 96, 3d ed., that:

“In general, it would seem that, while a habit or fixed principle of abstaining from liquor would have value to show probable sobriety on a given occasion, yet ‘habits’ of intemperance or intoxication could not be used for the contrary purpose; for the term ‘habit’ here signifies thereby frequent indulgences, and not constant or periodical intoxication. If indeed a steady practice of intoxication can be shown, it would be equally probative. By reason of this looseness of meaning in the word ‘habit’ the judicial applications of the principle are by no means uniform.” (Italics supplied.)

The position adopted by these well known authorities is reflected in the cases cited by the Court of Civil Appeals. They hold that where a history of drunken behavior is established, such history may be received in evidence.

In Lewis v. Houston Electric Co., supra, it was held proper to admit testimony that on “many occasions” a party had been seen under the influence of intoxicating liquor. In the Gappelberg case, supra, the actual holding was that reversible error was committed in admitting evidence of a “history of intemperate habits” in the absence of direct evidence of intoxication at the time of injury. The dictum which is so earnestly relied on by respondents is merely to the effect that if there were other evidence of intoxication, it would be permissible to show that a party was “habitually intoxicated, or a drunkard.” Again, in Robinson v. Lovell, supra, it was said that “if appellees’ evidence is to the effect that appellant was drunk, and appellant’s evidence is to the contrary, appellees may, by way of corroboration, offer evidence that appellant was frequently in a state of intoxication.”

It is significant that these cases all speak in terms of a “history of drunkenness,” or of being “habitually” or “frequently” drunk, and that none deals with the admission of specific or isolated instances of intoxication, such as are presented here. Rather, the established rule appears to be as is stated in Southern Traction Co. v. Kirksey, 222 S.W. 702 (Tex.Civ.App., no wr. hist., 1920):

“We think the fact that a person was in the habit of getting drunk, and while in such condition driving recklessly upon public highways, roads, and street crossings, would be a matter for the proper consideration of a jury as to whether or not he was intoxicated at the time of his injury, and we think that his habit in this regard could be proven by general reputation. We do not think it would be permissible to prove particular or isolated instances as to his reckless driving while drunk.” (Italics ours.)

For the reasons above stated, the judgments of the courts below are reversed and the cause remanded to the District Court for another trial.

GRIFFIN, Justice

(dissenting).

I agree with the opinion of the Court of Civil Appeals on the point that the evidence of previous convictions of a felony was admissible against the defendant Compton for impeachment and was to be considered by the trier of facts as affecting Compton’s credibility.

The case of Boon v. Weathered’s Administrator, 23 Tex. 675 (1895) did not involve the admissibility of a conviction of a felony, but dealt with questions of a witness' general reputation and a charge of the trial court instructing the jury not to believe such witness’ testimony.

It must be kept in mind that the question before us is whether a conviction of a felony of the witness (who in our case is the defendant who had testified in this cause) may be proved as bearing upon the credibility of such witness.

An analysis of the cases on this point is found in Kennedy v. International-Great Northern Ry. Co. (Tex.Com. of App., 1928), 1 S.W.2d 581. In that case the distinction between a charge of a felony and a conviction of a felony is pointed out. The conviction there involved was of a felony theft, which clearly involves moral turpitude.

In the quotation from Dean Wigmore on Evidence, Third Edition, § 926, shown in the majority opinion, a very significant omission of the test is made. The omitted part reads:

“* * * in the first place, conviction of a crime is everywhere allowed to be used as affecting credibility of character, and while distinctions are sometimes made as to the grade of the crime, little effort is made to employ those crimes which directly involve lack of honesty.”

Again Dean Wigmore, § 980, says;

“It has therefore been universally acknowledged that proof of a crime by record of a judgment of conviction may be made, not because an exception is carved out of the rule, but because the reason of the rule does not apply.”

In that same paragraph on page 538, Dean Wigmore says;

“What crimes are relevant to indicate bad character as to credibility? There are here three answers possible on principle;
“(a) Whatever offences were formerly treated as disqualifying one entirely as a witness shall now be treated as available for impeachment. This is the commonest solution, and has come about usually by express proviso in the statutory abolition of the former disqualification ;
“(b) If in a given jurisdiction general bad character is allowable for impeachment, then any offence will serve to indicate such bad character; [this rule does not apply in Texas.]
“(c) If character for veracity alone is allowable for impeachment, then only such specific offences may be used as indicate a lack of veracity-character.” [All emphasis in quotation that of Wigmore.]

The reasoning of the majority is not consistent with either of Dean Wigmore’s three subdivisions.

Most writers on the subject agree that being convicted of an “infamous crime” was the basis of the common law bar to such witnesses being permitted to testify. According to (a) above by Dean Wigmore, a common law disqualification is the basis for. allowing impeachment of a witness convicted of a crime.

We have cases in Texas stating what is an infamous crime. All agree that a crime which may be punished by confinement in the penitentiary is an infamous crime. In Texas a “felony” is defined by statute (Art. 47, Penal Code, State of Texas) as one for which confinement in the penitentiary may be assessed as punishment. The majority recognizes that a conviction of a felony, prior to 1925, disqualified a witness from testifying in Texas.

At common law whether or not the crime was an infamous one was determined by the nature of the crime and not by the punishment assessed. But this rule has since been expressly disapproved, the modern test being whether the offense is one for which the statute authorizes the court to award an infamous punishment, and not the nature of the criminal act, or whether the punishment awarded is an infamous one.

“With respect to what punishments are considered infamous the courts are agreed that an offense which is punishable by imprisonment in a prison or penitentiary is infamous.” Note in 24 A.L.R. 1004, following the case of United States of America v. Moreland, 258 U.S. 433, 42 S.Ct. 368, 66 L.Ed. 700 (1922).

Another reason why we should not follow the majority opinion is that such ruling is directly contrary to the well-recognized holding of our Court of Criminal Appeals as shown in numerous cases. Among some of the more recent see: Mauldin v. State, 165 Tex.Cr.R. 405, 308 S.W.2d 36; Ward-rope v. State, 170 Tex.Cr.R. 305, 340 S.W.2d 498; Parker v. State, 83 Tex.Cr.R. 77, 201 S.W. 173.

It has heretofore been the policy of this Court to agree with the Court of Criminal Appeals’ decisions whenever reasonably possible to do so. There is no need to add confusion to the law of evidence by our having a rule of evidence contrary to the one long established in the Court of Criminal Appeals.

Another good reason why the rule in this case should not be as declared in the majority opinion is that the determination of what constitutes a conviction of a felony is much more simple than the determination of what offenses involve moral turpitude. Various judges will have various ideas on this question and there being no existing body of judicial decisions defining with exactitude what offenses involve “moral turpitude,” we will again have uncertainty.

Dean McCormick in his “Evidence” Hornbook Series, West Publishing Company, pp. 90-91, points out the uncertainty that results from the requirement that conviction for a crime must involve “moral turpitude” to be admissible as impeachment of a witness. He then says: “Moreover, it seems that shifting the burden to the judge’s discretion is inexpedient since only in a minority of cases will the judge have adequate information upon which to exercise such discretion. A clear, certain rule like the English one is preferable, despite its somewhat arbitrary character(Emphasis added.) The English rule makes conviction of “any felony” admissible for impeachment.

Another reason for not agreeing with the majority opinion is that it represents the prevailing view of only a very few jurisdictions. By far the majority of the states permit proof of conviction of a felony to impeach a witness.

I would affirm the judgment of the Court of Civil Appeals.

HAMILTON, J., joins in this dissent.


author: SMITH, Justice. WALKER, Justice

text:
    SOUTHWESTERN BELL TELEPHONE COMPANY and James Cozart, Petitioners, v. Robert Richard JOHNSON, Respondent.
    No. A-10458.
    Supreme Court of Texas.
    March 31, 1965.
    Rehearing Denied April 28, 1965.

      Larry Barnes, Dallas, Wardlow Lane, Center, James E. Barden, Houston, for petitioners.
    Fairchild & Badders, Nacogdoches, for respondent.
   SMITH, Justice.

The plaintiff, Robert Richard Johnson, filed suit jointly against the defendants, Southwestern Bell Telephone Company and James Cozart, for damages and personal injuries sustained on December 1, 1960, when Johnson was struck by a truck belonging to Bell and driven by Cozart while in the course and scope of his employment.

Upon jury findings that Cozart was not negligent in any respect, as alleged in plaintiff’s petition, the trial court entered judgment that plaintiff take nothing by his suit. The Court of Civil Appeals, one justice dissenting, reversed the judgment of the trial court and remanded the cause to that court for a new trial. 382 S.W.2d 765. We reversed the judgment of the Court of Civil Appeals and affirm that of the trial court.

The issue to be decided in this Court, and the one with which the Court of Civil Appeals dealt in reversing the cause, is whether or not a trial court, in the exercise of its discretion, can refuse the testimony of a person who has not been placed under the rule after the provisions of Rule 267, Texas Rules of Civil Procedure, had been invoked. Plaintiff invoked the rule before any testimony was received by the trial court, and all of the witnesses present were admonished by the Court concerning the rule.

It is necessary at this point to relate the pertinent facts which had developed when the trial court was called upon to rule as to whether or not plaintiff’s investigator, Ray Blakey, a witness proffered by the plaintiff, should be allowed to testify, even though he was present when the rule was invoked, but was never placed under the rule.

Johnson was employed by the Water Department of Timpson, Texas. Cozart was employed by Bell in the City of Timpson. The night before Johnson was injured, a small grocery store partially burned in the city. The next morning, the Water Department sent a crew of men, including Johnson, and Bell sent Cozart and others to check their respective facilities. Johnson arrived at the scene before Cozart. Admittedly, Cozart legally parked his truck. While Cozart was at the scene Johnson began working on the water meter, which waslocated in the ground approximately three feet in front of the truck. While Johnson was down on his knees in front of the truck, Cozart started his engine, saw nothing in front of his vehicle, turned to the left and drove forward striking Johnson.

Johnson testified that Cozart had parked his truck and then walked to a telephone pole, which was approximately six to ten feet in front of the Cozart truck, climbed the pole, and when he descended the pole he walked back to his truck, walking within a few feet of Johnson working on the water meter in front of the truck. Cozart testified that he did not climb the telephone pole nor walk within a few feet of Johnson while he was working on the ground in front of the truck. Johnson’s testimony in regard to Cozart climbing the telephone pole and passing near him, no doubt, would tend to disprove Cozart’s testimony that he did not see Johnson when he entered the truck and drove forward striking Johnson.

During the trial Bell and Cozart introduced a witness, Cecil Watson, who testified on direct examination that he saw the accident occur and the Cozart truck did not strike Johnson. Watson gave no testimony about Cozart climbing a telephone pole. However, on cross-examination and in response to questions propounded by plaintiff’s attorney, Watson testified that he “never did see Mr. Cozart up a pole.” Watson was also asked during the cross-examination if he had talked about the accident with Ray Blakey. Watson answered that he had not. Watson admitted having a conversation with Blakey about “cattle and a little of everything,” but denied discussing the case.

Plaintiff then called Blakey to testify he had obtained, without the knowledge of Watson, a voice recording of a conversation he had with Watson wherein Watson had said that Cozart did climb the pole in question. Upon objection by Bell and Co-zart, the trial court refused to allow the testimony of Blakey because Johnson had invoked the rule and the witness Blakey had remained in the court room to hear other witnesses testify. The record shows that Blakey not only remained in the court room and heard testimony given by some of the witnesses, but participated in the presentation of plaintiff’s case by reading the answers of certain portions of Cozart’s depositions.

We interpret the Court of Civil Appeals opinion as holding that the trial court had no discretion m the matter, and that it was reversible error to deny the jury “their prerogative to determine if the voice on the recording machine was indeed Watson’s” The Court cites in support of its position the case of Johnson v. Cooley (1902), 30 Tex.Civ.App. 576, 71 S.W. 34, no wr. hist, which held that “the administration of justice would be better subserved by denying to the trial court the right in any case to refuse to allow the witness to testify.” The Cooley case does not hold that the trial judge was without discretion, but it does hold that the ruling of the judge was an abuse of discretion.

We agree that it is a serious matter to exclude any evidence that might throw light on the issues. However, we disagree with the plaintiff’s position that under no circumstances may the Court, in its discretion, refuse to allow testimony where the rule has been invoked and where the proffered witness has either violated the rule, or who has not been placed under the rule. The question is not whether the action of the Court in disqualifying Blakey appears to us to have been required, but rather the question for decision is whether the Court abused its discretion. The trial judge had the discretionary authority to take into consideration all of the facts, including the fact that the voice recording was made with the intention that it be used at the trial and with the knowledge that Ray Blakey was the only person who could identify the recording. The plaintiff invoked the rule and should have seen that Blakey was placed under rule. We cannot say that the judge, in the exercise of his discretionary power, acted arbitrarily or unreasonably in disqualifying the proffered witness, Blakey. The action of the trial court should be upheld. “The mere fact or circumstance that a trial judge may decide a matter within his discretionary authority in a manner different from what an appellate judge would decide if placed in a similar circumstance does not demonstrate that an abuse of discretion has occurred.” Jones v. Strayhorn, 159 Tex. 421, 321 S.W.2d 290 (1959).

Our disposition of the question discussed is decisive of this appeal and renders a decision on other questions presented in this Court unnecessary.

Even though we have concluded that the trial court did not abuse its discretion in holding that Blakey was a disqualified witness, we must, before disturbing the judgment of the intermediate court which holds otherwise, examine Johnson’s brief, which he filed as appellant in that court, to determine whether there is another ground upon which the judgment of the latter court should be affirmed. See Texas Employers Ins. Ass’n v. Kennedy, 135 Tex. 486, 143 S.W.2d 583 (1940); Meyer v. Great American Indemnity Co., 154 Tex. 408, 279 S.W.2d 575 (1955); McKelvy v. Barber, 381 S.W.2d 59 (Tex.Sup., 1964).

Johnson presented eight points in the Court of Civil Appeals. That Court sustained one of the points, overruled five, and did not pass upon the remaining two. The action of the Court of Civil Appeals in overruling Johnson’s points has not been questioned in this Court. The two points which were left undecided by the Court of Civil Appeals complain of the action of the trial court in refusing to allow Johnson’s attorney to lay a predicate for impeaching the witness Watson, and in refusing to grant the request of Johnson’s counsel that the bailiff conduct Watson to the “witness stand without being allowed to talk to anyone.” The effort to impeach the witness Watson was in connection with the unsuccessful attempt to qualify Blakey as a witness. We hold that the trial court’s action was proper. The points are overruled.

The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.

CALVERT, C. J., and WALKER, J., dissenting.

WALKER, Justice

(dissenting).

I respectfully dissent. The mere fact that a witness has heard part of the evidence at the trial should not constitute a basis for excluding his entire testimony when the purpose of the rule for sequestration of witnesses has not been subverted in any way. I agree that it lies within the power of the trial court, in the exercise of a sound judicial discretion, to exclude the testimony of a witness who has violated the rule or was not placed under the rule when it was invoked. See Sherwood v. State, 42 Tex. 498; Goins v. State, 41 Tex. 334; American Automobile Ins. Co. v. Struwe, Tex.Civ.App., 218 S.W. 534 (wr. ref.); Richardson v. Herbert, Tex.Civ.App., 135 S.W. 628 (wr. ref.); Vaughn v. Gulf Ins. Co., Tex.Civ.App., 151 S.W.2d 227 (no writ). I also recognize that the action of the trial judge is not to be disturbed merely because the appellate court would have ruled otherwise in the first instance. See Jones v. Strayhorn, 159 Tex. 421, 321 S.W.2d 290.

When all of the relevant circumstances are considered in the light of the underlying purpose of the rule, however, it is my opinion that this case presents a rather clear example of abused discretion. The practice of separating witnesses is an ancient expedient designed to prevent one witness from being taught by the testimony of another. See VI Wigmore, Evidence, 3rd ed. 1940, § 1837. As pointed out by Chief Justice McClellan in Louisville & N. R. Co. v. York, 128 Ala. 305, 30 So. 676:

“The purpose to be subserved in putting witnesses under the rule is that they may not be able to strengthen or color their own testimony, or to testify to greater advantage in line with their bias, or to have their memories refreshed, sometimes unduly, by hearing the testimony of other witnesses; and it is legitimate argument against the veracity or fairness of a witness to say that his testimony has been developed along the lines of his inclination in the case by the opportunities he has had, from hearing the other witnesses, to refute them or to amplify his own statements to meet the exigencies of the trial.”

The witness Blakey did not see the accident and was not called to establish any of the facts or circumstances surrounding the same. He was placed on the stand for the sole purpose of identifying a taped voice recording of a conversation he claimed to have had with petitioners’ witness Watson. To understand the significance of the recording, it should be noted that petitioners’ liability probably turns, in the last analysis, upon whether the trier of fact believes that Cozart knew, or should have known, that Johnson was working on the meter in front of the truck. There is a sharp dispute in the evidence bearing on this issue. Johnson testified that Cozart climbed a pole in front of the truck and then passed within three or four feet of him on the way back to the truck. Cozart stated that he did not climb the pole and did not walk past Johnson just before starting the truck. Johnson’s boss, Chumley, testified that his best recollection was that Cozart did climb the pole, but that he did not remember and would not say he did. With the testimony thus conflicting, petitioners called Watson, an ostensibly disinterested witness, who corroborated Cozart’s testimony that he did not climb the pole. The jury found in Cozart’s favor that he was not aware of Johnson’s presence and did not fail to keep a proper lookout.

Watson’s credibility was thus a vital point in the case. In the recording of the purported conversation between Blakey and Watson, the latter stated several times that Cozart did climb the pole as contended by respondent. This is the evidence which was kept from the jury when the trial court excluded Blakey’s testimony. Watson could not recognize his voice on the recording and stated flatly that he did not make any of the statements contained in the recording.

Although Blakey was in the courtroom during part of the trial, the undisputed evidence shows that he did not hear Watson testify. The testimony he did hear had no bearing whatsoever upon the evidence which respondent sought to elicit from him. The fact that he had heard some of the witnesses was thus utterly irrelevant to a determination of whether he should be permitted to identify the tape recording. Blakey’s presence in the courtroom clearly did not enable him to shape his testimony to better advantage, because he did not hear Watson and no other witness touched even remotely upon the facts concerning which he was to be interrogated.

The facts here are somewhat similar to those in Johnson v. Cooley, 30 Tex.Civ.App. 576, 71 S.W. 34 (no writ), although that was a stronger case for excluding the evidence. There the witness who had not been placed under the rule was told by the defendant of the testimony given by the plaintiff on one issue. The trial court refused to allow the witness to testify, but the Court of Civil Appeals held that this was an abuse of discretion and said:

“The information given the witness by the appellant as to the testimony of plaintiff could only have affected 'the testimony of the witness upon one of the points in issue between the parties, and the testimony of this witness was vitally material to the appellant upon all of the issues in the case. He alone knew the exact details of the transaction under investigation, and could give the amounts for which the property sold, and -the items of expense in handling the property and making the sales. There being no other source from which this evidence could be supplied, his testimony should not have been excluded on this point, at least. The evidence in the case as to the amounts for which the property sold, and the expenses of making such sale, is of the most indefinite and uncertain character, and the exclusion of this testimony was manifestly injurious to appellant.”

Courts are usually more inclined to uphold the action of the trial court in excluding the testimony of a witness who has violated the rule where the party calling the witness was at fault in causing or permitting the violation and the excluded evidence is not vital to such party’s case but merely cumulative in nature. It has already been pointed out that Blakey’s testimony and the tape recording he would have identified were crucial to respondent’s case. If respondent or his attorney was guilty of any indiscretion, their only mistake was in failing to swear Blakey as a witness or keep him out of the court room at a time when Watson had not appeared or been called as a witness, was not under subpoena, and there was no reason to believe that he would deny his statements recorded on the tape. Unless the power to exclude the testimony of a witness may be used merely as a punitive weapon to penalize a party for lack of foresight, it seems to me that there is no basis whatsoever for refusing -to allow Blakey to identify the tape recording.

So far as I have been able to determine, this is the first Texas case to condone the exclusion of testimony for a violation of the rule where it appears: (1) that the excluded testimony was vital to the case of the complaining party; and (2) that the excluded testimony could not possibly have been affected by the fact that the rule was violated or the witness was not placed thereunder; and (3) that the complaining party did not connive in the violation in an attempt, to “educate” the witness and thus gain some advantage at the trial. In my opinion the exclusion of Blakey’s testimony was- clearly erroneous, and the error was reasonably calculated to and probably did cause the rendition of an improper judgment. 1 would affirm the judgment of the Court of Civil Appeals.

CALVERT, C. J., joins in this dissent.

      . The jury found that Cozart did not fail to keep a proper lookout; that Cozart’s failure to warn Johnson and his failure to drive to one side of Johnson were not acts of negligence. The jury did not find Cozart guilty of any negligence. The jury found that the accident was unavoidable.

      . “Rule 267. Witnesses Placed Under Rule. At the request of either party, in a civil case, the witnesses on both sides may be sworn and removed out of the court room to some place where they can not hear the testimony as delivered by any other witness in the cause. * * * witnesses, when placed under the rule, shall be instructed by the court that they are not to converse with each other or with any other person about the case other than the attorneys in the case, except by permission of the court, and that they are not to read any report of or comment upon the testimony in the case while under the rule. Any person violating such instructions may be punished for contempt of court.”