author: PALMORE, Judge.

text:
    Calvin BUEHRER et al., Appellants, v. Frank GATES, Appellee.
    Court of Appeals of Kentucky.
    Feb. 17, 1967.
    M. J. See, C. F. See, III, Louisa, for appellants.
    Dan D. Ball, Louisa, for appellee.
   PALMORE, Judge.

On June 23, 1961, the appellant Calvin Buehrer, as agent for a partnership called Buehrer Oil and Gas Development, executed and delivered to the appellee, Frank Gates, a check drawn on the Bank of Blaine, Blaine, Kentucky, for the sum of $2710. It was returned by the bank marked ‘‘insufficient funds.” Gates brought this suit on the check against Calvin Buehrer and the members of the partnership. They pleaded lack of consideration. Following a trial on depositions, in which the defendants did not proffer any evidence, judgment went in favor of the plaintiff and the defendants appeal.

The check was made a part of the complaint as an exhibit. It recites that it was given for “payment of 1010 acres in full.” Under an old rule that if a complaint on a negotiable instrument unnecessarily alleges a particular consideration the plaintiff has the burden of proving it, cf. Cassada v. Warren’s Estate, Ky., 330 S.W.2d 732, 733 (1960), and cases therein cited, appellants claim this recitation on the face of the exhibit constituted an allegation of the specific consideration and placed the burden of proof on the appellee. They contend further that a good and legally sufficient consideration for the check was not proved.

Deferring for the moment a discussion of the proof, we observe that the Uniform Commercial Code “eliminates the presumption of consideration embraced in the NIL and replaces it by the provision placing upon the defendant the burden of establishing any and all defenses as against a holder who produces an instrument and establishes the signatures.” 12 Am.Jur.2d 211 (Bills and Notes, § 1187); KRS 355.3-307. The UCC became effective in this state on July 1, 1960, and applies to the instrument in controversy. Hence the burden of establishing the defense of no consideration lay on the defendant appellants.

This technically is not dispositive, however, because the evidence was amply sufficient to prove consideration.

Frank Gates (the appellee) and James W. Wiler were employes of Ashland Oil and Refining Company, which had a policy against its employes’ engaging in the business of speculating in oil leases. They acquired seven leases, covering 1010 acres, in the names of their wives, Jo Ann Gates and Norma Wiler. Buehrer agreed to buy the leases for $3.50 per acre, totalling $3,535, subject to reservation of a ⅜4 override by the assignors. Pending title examination Buehrer gave Gates two checks, one for $200 and the other for $800. According to Gates, the $200 check was for expenses of the title examination and the $800 check was a down payment. Charges for the title examination actually came to $175, so when the deal was closed on June 23, 1961, the balance due was $2,710, the amount of the check now in controversy.

The check and the assignment were exchanged simultaneously. The assignment had been executed by Jo Ann Gates and Norma Wiler, but not their husbands. The check was drawn solely in favor of Frank Gates, but with the acquiescence and approval of Wiler, who was present. Two or three days later Buehrer handed the assignment back to Gates and requested him to interline á slight change specifying that the ⅜4 override was to come out of the ⅞ working interest. Gates, complied with the request and had his wife, Jo Ann, place her initials on the margin of the instrument opposite the interlineation. When he sought to return the assignment to Buehrer he was unable to find him. It appears that Buehrer had departed this state for the time being. Meanwhile, the check had been twice presented and rejected for insufficient funds and the bank also had received a stop payment order. The assignment was never returned to Buehrer or the partnership and was never recorded.

Appellants submit three theories in support of their contention that there was in fact no consideration for the check: (1) Gates was not a party to the assignment; (2) the assignment was delivered back and not redelivered; and (3) the assignment “was not a bona fide fulfillment of any agreement of appellee to sell 1,010 acres of leases.”

That Gates was not the nominal owner of the leases and did not become a party to the assignment is utterly immaterial. The check was given in payment for leases covering 1,010 acres. Gates procured and Buehrer accepted a valid transfer and delivery of the leases. Thus Gates gave and Buehrer received the agreed consideration. The cited case of Moore v. Kuster, 238 Ky. 292, 37 S.W.2d 863 (1931), holding that a promise to do something the promisor already is bound to do under another contract does not constitute consideration, has no relevance to this case.

That the husbands did not join in the assignments likewise is immaterial. Dempsey v. Diederich, 313 Ky. 865, 233 S.W.2d 976 (1950), holding invalid a mar ried woman’s assignment of an oil and gas lease, involved a 1930 transaction and is not applicable to transfers made subsequent to the 1942 amendment of the statutes therein mentioned. Under KRS 404.030(1) a married woman may singly transfer land and chattels real without her husband’s signature, subject only to his inchoate curtesy interest. Though an oil and gas leasehold is a chattel real, Dempsey v. Diederich, supra, since it is less than a fee simple it is not subject to inchoate dower and curtesy. KRS 392.020; Van Camp v. Evans, 306 Ky. 59, 206 S.W.2d 38, 173 A.L.R. 1256 (1947).

Redelivery of the assignment by Buehrer to Gates for the purpose of having the slight modification interlined did not have the effect of nullifying the transaction, which had been completed two or three days theretofore. Title to the leasehold interests passed with delivery of the executed assignment on June 23, 1961, and whatever may have been Buehrer’s intention when he later gave the instrument to Gates, surely it would not be contended that he could accomplish a reassignment by simply handing the same paper back.

The third contention, that the assignment was not a bona fide fulfillment of any agreement by Gates, is somewhat difficult to understand. It seems to us that it does not make any difference whether the assignment was made pursuant to a preexisting agreement or an on-the-spot bargain and sale. The goods were delivered and payment was made. If the point appellants seek to make is that there was a failure of consideration, there is nothing in the evidence to prove it. In Clark v. Cooper, 197 Ky. 530, 247 S.W. 929 (1923), leases covering a substantial part of the acreage embraced in an assignment had been forfeited by reason of the assignors’ failure to pay delay rentals, and the court said this was such a failure of consideration as to make it optional with the assignees to rescind. That, however, is not this case. In the first place, appellants have never sought or purported to rescind. Secondly, though six of the seven leases assigned contained short-term drilling commitments, they were all valid and in force, and there is no suggestion that Buehrer was not aware of their terms.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: CULLEN, Commissioner.

license: Public Domain

text:
    Dan MORRIS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 17, 1967.

      D. G. Boleyn, Courtney C. Wells, Hazard, for appellant.
    Robert Matthews, Atty. Gen., Darryl T. Owens, Asst. Atty. Gen., Frankfort, for appellee.
   CULLEN, Commissioner.

Dan Morris was convicted of murdering State Trooper Delano Powell and was given a life sentence. On this appeal he asserts four grounds of error which we shall discuss seriatim.

The first contention is that the evidence was insufficient to prove that Delano’s death was produced by a criminal act committed by the defendant. We think the evidence was ample, as we shall demonstrate. Late in the afternoon of a summer day the defendant fired several salvos from a shotgun inside his mother’s house on “Cy Branch Holler” in Breathitt County, and threatened to kill his brother. A neighbor, at the mother’s request, called the “authorities.” The neighbor, before calling, told the defendant of his intent to make the call, and the defendant said he would kill the neighbor if he made the call. State Trooper Powell, accompanied by a deputy sheriff, drove to the mother’s house arriving around 11 p. m. He stopped his police cruiser at the yard gate, leaving the headlights on and with a spotlight directed at the porch of the house. He got out of the cruiser with a flashlight in his hand, dressed in official uniform except that his head was bare, and started into the yard in the beam of the headlights. When he had reached a point only eight feet into the yard a shotgun blast struck him and he was mortally wounded. (He died in Perry County a few hours later.) The defendant was the only person known to be on the premises before this shooting. A few moments later the deputy sheriff saw a man, dressed like and resembling the defendant, run into the house from the side yard. Extra law-enforcement officers were summoned and a “shoot-out” lasting several hours ensued. At one point during the siege the defendant appeared on the porch and, in refusing a request that he surrender, said that he already had killed one man and would kill another before they “got” him. Eventually, around 3 a. m., the defendant was found hiding in an outbuilding, with the shotgun in his hands, and was taken into custody. The evidence above related shows directly that the trooper’s death was produced by a deadly weapon in the hands of some other person, and it shows unerringly, albeit circumstantially, that the weapon was fired by the defendant as a criminal act.

The second contention is that there was no proof of malice. Direct proof of malice is not required; it may be inferred from the circumstances, or even from the mere fact that the killing was done with a deadly weapon. See Pittman v. Commonwealth, Ky., 242 S.W.2d 875. Here the circumstances were more than ample to support the inference of malice. Cf. Dilger v. Commonwealth, 88 Ky. 550, 11 S.W.2d 651; Elliott v. Commonwealth, 290 Ky. 502, 161 S.W.2d 633.

The third contention is that the court erred in admitting evidence of the “shoot-out” that took place between the defendant and the force of officers who were trying to arrest him, during the course of which the defendant committed additional crimes, such as shooting another officer. Under well established authorities the evidence was admissible to show identity and intent. See Bircham v. Commonwealth, Ky., 238 S.W.2d 1008; Wharton’s Criminal Evidence, Vol. 1, sec. 244. The appellant suggests that in any event the court should have admonished the jury as to the limited purpose of the evidence. It is sufficient to say that no request was made for an admonition and we do not find any indication of material prejudice having resulted from the failure to admonish.

The final contention is that the court should have instructed the jury as to the limitations upon the trooper’s authority to enter upon the defendant’s premises, when he had no warrant for defendant’s arrest and when no offense had been committed in his presence. In our opinion the circumstances did not call for such an instruction. Even if the trooper had no warrant, no offense had been committed in his presence, and he was contemplating the making of an illegal arrest, the defendant had no right to kill or attempt to kill the officer, unless he believed and had reasonable grounds to believe that he was in danger of death or great bodily harm at the hands of the officer and in the exercise of reasonable judgment there were no other safe means of averting the real or apparent danger except to kill the officer. See Smith v. Commonwealth, 196 Ky. 479, 244 S.W.2d 878. A person has no right to kill another to prevent a mere trespass arising from the attempt of the latter to arrest him without a warrant. Neeley v. Commonwealth, 123 Ky. 1, 93 S.W. 596; Jackson v. Commonwealth, 29 Ky.Law Rep. 450, 93 S.W. 598. In the instant case there was nothing to raise a fear of death or great bodily harm on the part of the defendant; the trooper had only a flashlight in his hand, and he simply had walked into the yard, in full view of his car headlights; he was not committing a trespass because the premises belonged to the defendant’s mother and she had called for the trooper to come. Even if it were to be considered that he had committed a trespass by walking into the yard he had done nothing to invade the real security of the premises. On the issue of whether the defendant was entitled to shoot the trooper, the circumstances of this case were such as to render irrelevant the question of how much authority the trooper had. Smith v. Commonwealth, 206 Ky. 728, 267 S.W. 328, relied upon by the appellant, is not controlling here because there a jailer, with no basis of authority and in company with a group of men who were on hostile terms with the defendant’s family, was undertaking forcibly to break into the defendant’s house.

The judgment is affirmed.

All concur.


author: OSBORNE, Judge.

text:
    Virginia Gregory HARR and Albert Harr, Appellants, v. BETSY ROSS BAKERIES, INCORPORATED and Raymond H. Martin, Appellees.
    Court of Appeals of Kentucky.
    Feb. 17, 1967.
    C. B. Creech, P. Joan Skaggs, Ashland, Jack R. Kibbey, Vanceburg, for appellants.
    Woodson T. Wood, Fox, Wood & Wood, Maysville, for appellees.
   OSBORNE, Judge.

This is an appeal by the plaintiff, Virginia Gregory Harr, from a judgment of the Lewis Circuit Court which awarded her $2500 for loss of earning power and $2500 for pain and suffering, and awarded her husband, Albert Harr, $900 for loss of his automobile and $99.40 for medical bills. Appellant insists the trial court, in denying her a new trial, erred because the verdict is so small that it indicates passion and prejudice on the part of the jury. We have examined the facts with a great deal of care. We find that at the time of the collision Mrs. Harr was forty-one years of age; that some months prior to the collision she had been found to be suffering from a duodenal ulcer and some seven months before the collision she had undergone a complete hysterectomy; and that she was a type of person who, according to her own doctor, had a personality predisposed to emotional disturbances.

The record discloses that the collision occurred in April of 1963. Appellant received rather severe whiplash injuries. In July of that year, she became emotionally disturbed and had to be hospitalized for treatment. It is her contention that the mental and emotional disturbances for which the major portion of the medical expenses were incurred were the direct result of the collision and that she is entitled to be compensated for them.

Appellant submitted this to the jury in a fair and full trial. They found otherwise and we believe rightfully so. Appellant’s own doctor, who qualified as a psychiatrist, when asked to give his opinion as to whether or not her condition was caused by injuries received in the collision answered as follows:

“There could be a casual relationship. It’s difficult to say that her condition was caused by an accident. It’s been our experience that your conversion reactions are usually following a traumatic experience which can either be a physical or emotional upheaval in a person’s life. The only thing we could come up with was, of course, the accident, however, I can’t definitely state that it was the accident that caused her illness. There could be a relationship, yes.”

In our opinion this evidence is too indefinite and uncertain in its conclusion for us to rule as a matter of law that there was a connection between her disability and the collision. As previously stated, this was fairly submitted to the jury and their verdict was otherwise. We do not believe that the verdict was based upon passion and prejudice. As stated in Aker v. Smith, Ky., 290 S.W.2d 496, “However, under the evidence the jury was clearly authorized to reject her evidence as to the cause of her disabled condition.”

It is well settled that the final determination of these cases is for a jury and that their verdict should not be disturbed unless it is so disproportionate as to strike the mind at first blush as resulting from passion and prejudice. Wilkins v. Hopkins, 278 Ky. 280, 128 S.W.2d 772.

The judgment is affirmed.

All concur.


author: DAVIS, Commissioner.

text:
    Gene MORGAN, Appellant, v. CITY OF WINCHESTER, CLARK COUNTY, Kentucky et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 17, 1967.

      Blake Page, Winchester, for' appellant.
    Alton' S. Payne, Marshall McCann, Jr., Winchester, for appellees.
   DAVIS, Commissioner.

The question presented is whether appellant Gene Morgan has been legally discharged as chief of police of the City of Winchester, a third-class city. KRS 81.-010. The trial court adjudged that Morgan had been legally discharged.

The facts were stipulated in the trial court and are summarized: Morgan was employed as chief of police of Winchester on January 1, 1964. At that time the city had no ordinance placing the police department under civil service within the purview of KRS, Ch. 95. Morgan did not take any examination incident to his employment. When Morgan was employed there was in effect an ordinance providing in substance that all persons hired by the city should serve at the pleasure of the City Commission. Morgan was aware of the provisions of that ordinance, and held the belief that his contract of employment with the city was on a month to month basis, and in any event would terminate when a new Commission took office, unless he was rehired.

Appellant places his case squarely upon KRS 85.335, enacted in 1960, which provides :

“Members of police and fire departments in cities of the third class may be removed only in accordance with the provisions of KRS 95.450.”

It is conceded that appellant’s dismissal as chief of police was not accomplished as the result of any hearing upon charges preferred as prescribed in KRS 95.450. Appellees take the position that KRS 85.-335 “ * * * took nothing away nor did it add anything to the body of the law which was in effect at the time this statute was passed.” They point to Mangrum v. City of Mayfield, Ky., 305 S.W.2d 312, wherein this court decided in 1957 that KRS 95.440 (1) afforded third-class cities an option to set up a civil service system for members of the police and fire departments, but recognized that the governing bodies of such cities retained plenary powers to discharge at pleasure policemen and firemen so long as the city had not elected to set up the civil service system. It is clear, of course, that had KRS 85.335 never been enacted this litigation would be ruled by Mangrum v. City of Mayfield, supra. We think it is equally clear that enactment of KRS 85.335 impels a different result than reached in Mangrum if the new legislation has any meaning at all.

The litigants agree that Section 160, Kentucky Constitution, reposes in the General Assembly the power and duty to prescribe the qualifications of all officers of towns and cities and the manner and causes for which they may be removed from office. Appellees simply take the position that the General Assembly has not exercised its prerogatives so as to require formal charges and a hearing as conditions precedent for removal of a police officer in cities of the third class. We have the opposite view. We will not assume that the General Assembly was indulging in meaningless shadow boxing when it enacted KRS 85.335. In our view the language of the statute means what it says and plainly says that the safeguards provided in KRS 95.450 shall obtain as necessary prerequisites in the discharge of members of police and fire departments in third-class cities.

We are not impressed with the ap-pellees’ argument that such a construction of KRS 85.335 forces cities into civil service and pension programs without their knowledge or consent. The short answer is that it has no such effect. It merely means that the procedural steps of a formal charge and a hearing are regarded as minimal safeguards for orderly handling of personnel matters in police and fire departments. It is not required that courts rise to the defense of the legislative branch of government and present reasons demonstrating the wisdom of legislation, although we are persuaded that many sound reasons could be advanced for the enactment of KRS 85.335.

The trial court deemed that appellant was estopped to question the legality of his discharge. This conclusion was reached on the concept that appellant had contracted his employment in full knowledge of the ordinance which provided that he should serve at the pleasure of the Commission. The difficulty is that the ordinance collides with the statute, and the ordinance must give way to the overriding statute. Cf. Board of Trustees of P. & F. R. F. v. City of Paducah, Ky., 333 S.W.2d 515. It would be anomalous indeed if a city could enact an ordinance in contravention of a valid statute and make the ordinance the basis for an estoppel in the circumstances at hand.

Neither do we regard as persuasive the argument that appointment for an indefinite period is against public policy. The legislature enunciates public policy, and it is the act of the legislature that is under consideration; it is not against public policy. Owens v. Clemons, Ky., 408 S.W.2d 642, 645.

It follows that appellant was never legally discharged from his position as chief of police.

The judgment is reversed with directions to enter a new judgment consistent with this opinion.

All concur.


text:
    Gerald R. LOTHER, Appellant, v. COMMONWEALTH of Kentucky, Appellee,
    Court of Appeals of Kentucky.
    Feb. 17, 1967.
    Paul C. Hobbs, Ashland, for appellant.
    Robert Matthews, Atty. Gen., John B. Browning, Asst. Atty. Gen., Frankfort, William B. Arthur, Ashland, for appellee.
   DAVIS, Commissioner.

Gerald R. Lother appeals from a judgment imposing penalty of one year’s imprisonment upon him pursuant to a jury’s finding him guilty of knowingly receiving stolen property. KRS 433.290. He asserts that a directed verdict of acquittal should have been given, and that if not, then the instructions were inadequate to present his theory of the case.

On February 13, 1966, appellant bought ten new shotguns from two men he had never seen before, and paid them $130 for the weapons. The transaction occurred after dark, on Sunday, at appellant’s used-car lot in Ashland. At the time appellant acquired the guns they were not wrapped.

The next day, according to appellant, he observed a news account of a robbery which had occurred in nearby Ironton, Ohio; the article recounted that guns had been taken in that crime. Appellant became apprehensive, carefully wrapped the guns in individual protective wrappers, and buried them on his used-car lot. He took the precaution of burying these firearms within an area covered by a junked tractor-cab.

On February 21, 1966, the Ashland police department received information warranting belief that appellant had purchased the guns. A search warrant was obtained, and its legality is in no wise challenged. Officers went to appellant’s lot and explained the purpose of their mission. An officer stated that appellant admitted having bought some guns, but insisted that he did not have them. After a futile search of the premises had brought to light a few old guns, appellant told the officer that he knew where the sought weapons were, and if given three or four hours he could recover them. After some further conversation between the officer and appellant the latter led the officer to the buried guns.

The recovered guns were positively identified by their owner as having been stolen from his place of business in Iron-ton. They had cost value of more than $500 and retail value in excess of $700.

KRS 433.290 provides in part:

“The possession by any person of any stolen property shall be prima facie evidence of his guilt under this section.”

It is undisputed that appellant possessed the stolen guns. He testified that he had no knowledge of their having been stolen, and the jury had a legal right to believe him — but it did not believe him. In the circumstances of this case it would have been surprising if the jury had “swallowed” appellant’s story. It is patent that the explanation offered by appellant was not so overwhelming in probative effect as to require a directed verdict of acquittal. See Fields v. Commonwealth, Ky., 368 S.W.2d 324; Dawes v. Commonwealth, Ky., 349 S. W.2d 191; Martin v. Commonwealth, Ky., 276 S.W.2d 19. These cases, among many others, reflect the court’s view that a conviction may be had in this type prosecution despite the defendant’s disclaimer of guilty knowledge, if the circumstances attendant upon the acquisition of the stolen property sufficiently tend to refute the defendant’s bare disclaimer of knowledge. We have no hesitancy in holding that the circumstances at bar abundantly warranted the verdict.

As respects the alleged failure to instruct upon appellant’s theory of the case, it is contended that the jury should have been affirmatively instructed to acquit appellant if it believed he did not know the guns were stolen. This point has been considered by the court often, and as recently as Ward v. Commonwealth, Ky., 399 S.W.2d 463. In Ward we held that an affirmative instruction on the defendant’s theory should have been given in a prosecution for knowingly receiving stolen property. The reason for that ruling there is not present here. In Ward the defendant contended that he had knowingly received stolen goods in order to comply with his earlier arrangement with the police and assist in apprehending thieves. Obviously the usual instruction requiring the jury’s belief beyond a reasonable doubt that the defendant had knowingly received stolen property did not serve to present defendant’s theory. In the case at bar no such special theory of defense was presented. The Ward decision was posited upon Evitts v. Commonwealth, 257 Ky. 586, 78 S.W. 2d 798, the sole authority relied upon here by appellant. Evitts, too, was an instance in which the defendant claimed he had received the stolen goods at the instance of the police and in effort to aid law enforcement. In Shaw v. Commonwealth, 229 Ky. 412, 17 S.W.2d 267, it was expressly held that in the usual prosecution for knowingly receiving stolen property it is unnecessary to give an affirmative instruction authorizing acquittal if the jury finds that the defendant was without guilty knowledge. That principle is applicable here, and the court properly instructed the jury.

The judgment is affirmed.

All concur.


author: MONTGOMERY, Judge.

text:
    CITY OF HAZARD MUNICIPAL HOUSING COMMISSION, Appellant, v. Bert HINCH et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 17, 1967.

      W. E. Faulkner, D. G. Boleyn, Hazard, for appellant.
    Wells & Wells, Hazard, for appellees.
   MONTGOMERY, Judge.

Bert and Anna Mae Hinch recovered judgment of $3,000 against the City of Hazard Municipal Housing Commission for damages done to their house by blasting. Forcum-Lannom, Inc., a building contractor, received a directed verdict. The Commission appeals and urges that it should not be held liable since its contractor had been released. Forcum-Lannom, Inc., is not a party to this appeal.

Appellant was in the process of establishing low-rent housing projects. During the construction of one of the houses a slide occurred on the property of the appellant which extended back to the lower property line of appellees. To prevent further slides the appellant agreed with appellees to construct a retaining wall on its property. The agreement was incorporated in a contract containing an easement which granted to the appellant’s contractor, Forcum-Lannom, Inc., the right to enter on the property of the Hinches for the purpose of constructing the wall. As consideration for the easement, concrete steps were to be built over the wall to furnish ingress and egress to the property. Contained in the contract was the following:

“ * * * and as between first parties and second party said Forcum-Lannom, Inc., is to be held harmless from any damages resulting to first parties or anyone else from the construction and maintenance of said retaining wall.”

Forcum-Lannom, Inc., was not a party to the contract.

During the construction of the wall, blasting of rock was necessary and appellees’ house was thereby damaged.

At the trial of the action instituted against the Commission and its contractor, a directed verdict in favor of the latter was granted because of the release contained in the agreement. Did the release of the contractor by appellees also release appellant?

Appellant contends that it should not have been held liable on the theory that the release of one of two joint tort feasors releases the other, citing Gibson v. Dupin, Ky., 377 S.W.2d 585; Kingins v. Hurt, Ky., 344 S.W.2d 811; and Miller’s Adm’x v. Picard, 301 Ky. 157, 191 S.W.2d 202.

It is admitted that Forcum-Lannom, Inc., was an independent contractor. The general rule is that one who employs an independent contractor is not liable for the torts or negligence of the independent contractor. Smith v. Gennett, Ky., 385 S.W.2d 957; Grogan v. United States, 6 Cir., 341 F.2d 39.

An exception to the rule has been recognized. As stated in Restatement (Second), Torts, Tentative Draft No. 7, Section 427:

“One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger.”

In Comment (c) following this section it is written that:

“The rule stated applies where the work involves the use of instrumentalities, such as fire or high explosives, which require constant attention and skillful management in order that they may not be harmful to others.”

The rule formerly referred to “inherently dangerous” activities. In the leading English case, Bower v. Peate, 1876, 1 Q.B. 321, 45 L.J.Q.B. 446, the foundation of the plaintiff’s building was undermined by an excavation. Included within such concept is the activity of blasting. Prosser on Torts, 3rd ed., Section 70, pages 484-485. Closely related are cases wherein the independent contractor does work which the employer knows, or should know, to be likely to involve a trespass on another’s land or the creation of a public or private nuisance. Restatement (Second), Torts, Tentative Draft No. 7, Section 427A.

This rule is one of long standing in blasting cases. Jones v. McMinimy, 93 Ky. 471, 20 S.W. 435, 14 Ky.Law Rep. 486, 40 Am. St.Rep. 200; Probst v. Hinesley, 133 Ky. 64, 117 S.W. 389; Langhorne v. Turman, 141 Ky. 809, 133 S.W. 1008, 34 L.R.A.,N.S., 211; Lexington and E. Ry. Co. v. Baker, 156 Ky. 431, 161 S.W. 228.

In Kentucky Stone Company v. Gaddie, Ky., 396 S.W.2d 337, it was held “that blasting is such an inherently dangerous operation that a landowner (appellant) may not insulate himself from liability flowing from blasting on his premises merely by entrusting the task to an independent contractor.” The rule was so stated in Jones v. McMinimy, supra. See also Green v. Asher Coal Mining Company, Ky., 377 S.W.2d 68. Accordingly, the appellant as the employer of the independent contractor is liable.

The exculpatory clause quoted above and contained in the contract of easement released the contractor but did not disturb the liability of the appellant. A contract for exemption from liability for negligence is generally void and unenforceable if it is violative of the law or contrary to some rule of public policy. Such contracts are not favored by the law and are strictly construed against the party relying thereon. Clear and explicit language in the contract is required to absolve one from such liability. French v. Gardeners & Farmers Market Company, 275 Ky. 660, 122 S.W.2d 487; 17 C.J.S. Contracts § 262, page 1160. Nowhere in the contract involved is there explicit language to the effect that the appellant should be absolved of liability.

The rule by which the release of the agent operates to release his principal is not available here since it was admitted that Forcum-Lannom, Inc., was an independent contractor.

Judgment affirmed.

All concur.


text:
    Mary S. AMLUNG, Appellant, v. BANKERS BOND COMPANY, Inc., et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 17, 1967.

      Martin J. Duffy, Jr., Edward W. Ben-singer, Louisville, for appellant.
    Raymond O. Harmon, A. J. Deindoerfer and William P. Swain, Boehl, Stopher, Graves & Deindoerfer, James P. Sohan, Louisville, for appellees.
   PALMORE, Judge.

The appellant, Mary S. Amlung, brought this suit against her former husband, Bertram W. Amlung, and Bankers Bond Company, Inc., a brokerage firm, for the recovery of certain corporate stocks owned by her and illegally sold by Amlung with the innocent (but negligent) assistance of Bankers Bond. Mrs. Amlung appeals and Bankers Bond cross-appeals from a judgment awarding partial recovery to Mrs. Amlung. Bertram Amlung has not appealed, and his liabilities are not in question.

Mrs. Amlung’s father, who died in 1936, left her a considerable estate in trust. Half the corpus was distributed in 1954 and the other half in 1959. It was on these occasions that Mrs. Amlung received the 17 certificates evincing her sole ownership of the stocks later sold by her husband. Just before the 1954 distribution Mr. and Mrs. Amlung jointly rented a safety deposit box in a local bank. Later, a larger box was rented in her name alone, but with the right of access by either of them.

During the 14 months immediately following the 1954 distribution Amlung, without his wife’s knowledge or consent, removed seven stock certificates from the lock box, forged Mrs. Amlung’s endorsements, and sold the stocks through the agency of Bankers Bond. In each instance one or another of the officers at Bankers Bond, trusting Amlung, guaranteed Mrs. Amlung’s signature. Upon completion of the sales, checks were made out by Bankers Bond to Mrs. Amlung and handed to Am-lung, who proceeded to forge Mrs. Amlung’s endorsements on the checks and convert them to his own use, still without her knowledge or consent.

Within three years after the- 1959 distribution Amlung went through the same procedure with 10 more stock certificates. He left Mrs. Amlung in July of 1962. Three or four weeks later, her suspicions being now fully aroused, she went to the lock box for the first time since 1954 and discovered the losses.

Mrs. Amlung’s complaint demanded that the defendants be required to bring about a return of the stocks in kind or to pay the current cash equivalent, including dividends that would have been received but for the unauthorized sales. Among its defenses Bankers Bond pleaded laches, or estoppel by reason of negligence, and the 5-year statute of limitations, KRS 413.-120(6).

The judgment from which these appeals arise applied the 5-year statute of limitations to the 1954 and 1955 transactions and awarded Mrs. Amlung (1) the value, as of the time of their sale, of the stocks sold after the 1959 distribution, and (2) the value of all subsequent dividends on those stocks with 6% interest thereon from date of issuance.

Mrs. Amlung challenges two aspects of the judgment, contending (a) that the 5-year statute of limitations should not have been applied to bar recovery on the 1954 and 1955 transactions and (b) that she should be awarded the enhanced current value of the stocks rather than the value when sold.

Bankers Bond claims error on the grounds (a) that it was entitled to a favorable judgment on the plea of laches or estoppel and (b) that the allowance of after-accrued dividends was erroneous.

With respect to the limitations question, Mrs. Amlung’s theory is that KRS 413.140 is the applicable statute. It provides as follows:

“(1) The following actions shall be commenced within one year after the cause of action accrued:
“(h) An action for the recovery of stolen property, by the owner thereof against any person having the same in his possession.
“(i) An action for the recovery of damages or the value of the stolen property, against the thief or any accessory.
“(3) In respect to the action referred to in paragraph (h) of subsection (1) of this section, ’the caúse'crf action shall be deemed to accrue at the time the property is found by its owner.
“(4) In respect to the-action referred to in paragraph (i) of subsection (1) of this section, the cause of action shall be deemed to accrue at the time of discovery of the liability.”

It will be noted, of course, that the pertinent subsections of this one-year statute apply to actions arising out of theft, and the period runs from the time the property is found or the liability is discovered, as the case may be. The trial court having found that Mrs. Amlung knew nothing of the losses until after her husband left her in July of 1962, and the suit having commenced on March 20, 1963, she is entitled to recover on the 1954 and 1955 losses if that is the appropriate statute. Bankers Bond, however, contends the case falls exclusively under KRS 413.120, which provides as follows:

“The following actions shall be commenced within five years after the cause of action accrued:
“(6) An action for the taking, detaining or injuring personal property, including an action for specific recovery.”

The latter statute makes no provision for delayed discovery by the injured party. See Dragoo v. Cooper, 72 Ky. (9 Bush) 629 (1873).

There is little or no case history to aid in determining the relationship between the limitations provisions in question. The 5-year statute is much the older of the two laws. That portion of the 1-year statute pertaining to stolen property first appears as Ch. 71, Art. VI, § 6 of the General Statutes enacted in 1873, where it reads as follows:

“Actions for the recovery of stolen property may be commenced against any persons 'having had the same in possession within one yéar from the time the property is found by the owner thereof, and not after; and actions for the recovery of damages, or the value of stolen property, must be commenced against the thief or any accessory, within one year from the time of the discovery of the liability.”

Unquestionably the 5-year limit applied to actions for the recovery of stolen property prior to enactment of the foregoing 1-year statute. Dragoo v. Cooper, 72 Ky. (9 Bush) 629 (1873). Whether the latter enactment was intended to remove suits for the repossession of stolen property and suits for monetary recovery against the thief or his accessories from the purview of the 5-year statute, or was intended only to modify the 5-year statute by further restricting the period of limitations depending upon earlier discovery, is a question that need not be decided, because we have concluded that as against Bankers Bond the suit does not come within the terminology of the 1-year statute anyway.

The words “stolen” and “thief” connote criminality as distinct from civil tort. Used in the same connection, the word “accessory” must be taken in the same sense— that is, an accessory to the crime. Though Bankers Bond was physically an “accessory” in the sale of Mrs. Amlung’s stock, it was not an accessory to the crime, because it was innocent of any criminal knowledge or intent. Since Bankers Bond was neither thief nor criminal accessory, and since obviously it did not have possession of the stolen property when the suit was brought, KRS 413.140 could not be applicable. The trial court was correct in adjudging that recovery against Bankers Bond for the stocks sold in 1954 and 1955 was barred by KRS 413.120, the 5-year statute.

The traditional measure of damages for the conversion or destruction of personal property is the fair market value of the property at the time and place of the loss, with interest, in the discretion of the jury, from the time of the conversion. Sanders v. Vance, 23 Ky. (7 T.B.Mon.) 209, 213, 18 Am.Dec. 167 (1828); Lane v. Rowland, 295 Ky. 868, 175 S.W.2d 1000, 1002 (1943). “Where property is destroyed, or is converted, so that the title either is, or is regarded as, out of the former owner, damages are the pecuniary representative of the property, and take its place. The plaintiff has lost or abandoned his claim to the property; his claim against the defendant is for an equivalent sum of money. In this point, a conversion very nearly resembles a sale.” 1 Sedgwick on Damages 630, § 317 (9th ed., 1912). “In an action for the conversion of personal property, the measure of damages is the value of the property at the time of the conversion, with interest.” Id., Vol. 2, p. 950, § 493. According to the same authority, in actions for the conversion of stock or other property of fluctuating value some courts have held the measure of damages to be the highest market value the property may have had from the date of the conversion to the end of the trial. Id., Vol. 2, p. 991, § 507. See also 53 Am.Jur. 891 (Trover and Conversion, § 99). However, there is no precedent for it in this state, and it is our opinion that the trial court properly determined that Mrs. Am-lung’s principal recovery was limited to the value of the stocks at the times of conversion. It should be recognized that this rule works both ways, and would have redounded to Mrs. Amlung’s benefit had the market declined.

In Western Union Telegraph Company v. Davenport, 97 U.S. 369, 24 L.Ed. 1047 (1878), the owners of stock which the corporation had transferred on its books pursuant to forged endorsements were held entitled to recover the dividends accrued on the stock after the unauthorized transfers. However, as counsel for Bankers Bond points out, that was a suit for restoration of the stock itself, and was against the issuing corporation. Theoretically, the complainants had lost their certificates, but not their ownership interest in the corporation, and the corporation simply was compelled to recognize it. But that is not possible in this case, because Bankers Bond no longer has possession or control of the stock sold and there is no principle of law by which it can be compelled to replace it in lieu of money damages. What might have been the result had Mrs. Amlung applied to the corporations on whose books the unauthorized transfers were ultimately consummated is a question this litigation does not present.

Consistent with the principles already discussed, we are forced to the conclusion that Mrs. Amlung’s recovery of consequential damages over and above the value of the stock at the time or times of conversion is limited to interest. “So in a case of bonds bearing interest at 4% and worth par, the measure of damages was the value of the bonds with legal interest, not 4% interest, from the date of conversion.” 2 Sedgwick on Damages 952-953, § 493a (9th ed., 1912), citing Govin v. Di Miranda, 140 N.Y. 474, 35 N.E. 626 (1893). Here again, had there been no dividends on the stock, Mrs. Amlung still could have been allowed interest. It is our opinion that allowance of the equivalent of after-accrued dividends (including stock splits) in lieu of interest was error.

The claim of Bankers Bond that its defense of laches should have been sustained is based on the contention that Mrs. Amlung knew or by the exercise of reasonable diligence could have known her husband was disposing of her stocks. She knew that he drank, gambled and consorted with other women, and she should have realized that he did not have enough income of his own to afford these extravagances. In 1955 or 1956 she sold $10,000 worth of stock to extricate him from a gambling debt. In 1958 she pledged 297 shares of Falls City Brewing Company (of which her late father had been president) to secure a $24,000 loan made necessary in part by debts he had incurred theretofore. It was testified in behalf of Bankers Bond that a confirmation was mailed to Mrs. Amlung following each of the stock sales in question.

On the other hand, she testified that she never suspected him of taking her stock certificates; that he took care of all her business affairs; that he very often came home in the morning and intercepted the mail, and if any of the confirmations from Bankers Bond actually did reach her hands she threw the envelopes away unopened, thinking they contained advertising matters ; that when she learned occasionally. from her bank that dividends had not been received, she made inquiries of her husband and was satisfied by his replies to the effect that he would write the company; etc. He had the income tax returns made up, and she examined them only to the extent of ascertaining what they owed. At one point in her testimony, when asked why she had not consulted her brother-in-law, Hon. Martin J. Duffy, Jr., an eminent attorney, as to what she “should do about this stock that was disappearing,” she answered, “I did not realize it was disappearing that fast.”

At first impression this last reply could be taken as an indirect admission that Mrs. Amlung knew or suspected what was taking place before the final moment of truth arrived. On the other hand, she may very well have meant that she did not realize that quickly that her stock was disappearing. In any case, the comment was called to her attention on redirect examination and she was asked whether she had been aware that her stocks “were disappearing at all,” to which she replied, “No. I had no suspicion at all.”

The burden of proof on the issue of laches rested on Bankers Bond. The findings of fact reveal that the trial court was not convinced that Mrs. Amlung had actual notice of her husband’s activities with respect to her stock certificates. We are of the opinion that the evidence was not so persuasive as to force a different conclusion. This leaves the question of whether a conclusive case of laches was produced on the basis of negligence.

“Ordinarily, actual knowledge on the part of the complainant * * * is necessary in order to charge him with laches. However, knowledge may in some circumstances be imputed to him by reason of opportunity to acquire knowledge, or where it appears that he could have informed himself of the facts by the exercise of reasonable diligence, or where the circumstances were such as to put a man of ordinary prudence on inquiry.” Taylor v. Commonwealth, Ky., 302 S.W.2d 584 (1957);. 27 Am.Jur.2d 710-711 (Equity, § 167).

“Ordinary prudence” depends, of course, on the particular circumstances of the case. Some married women exercise punctilious dominion over the financial affairs of the household. Others leave such cares, including the management of their own separate estates, to the husband. Are we to say that the latter class of women does not meet the standard of ordinary prudence ? If so, we thrust the old-fashioned woman from the full shelter of the law. The trial court was not convinced that the facts of this case convict Mrs. Amlung of laches, and neither are we. The expression “man of ordinary prudence” cannot be employed in a literal sense. Apparently Mrs. Amlung was an ordinary, unassuming housewife with no business experience or acumen, a good woman trusting her husband, forgiving his indiscretions, suspecting nothing beyond what she actually knew, and clinging to her faith until the end. It is in this context, we think, that the reasonableness of her conduct must be judged. We cannot find her innocence unreasonable.

The judgment is affirmed on the appeal, and is affirmed in part and reversed in part on the cross-appeal with directions that it be modified in accordance with this opinion.

WILLIAMS, C. J., and MILLIKEN, MONTGOMERY, HILL and STEIN-FELD, JJ., concur.

      . The certificates received in 1959 had been placed in the box by Mr. Amlung while she waited outside the bank vault.

      . In order for Mrs. Amlung to prevail, it would be necessary to hold that the 1-year statute is exclusive.

      . See Amlung v. First National Lincoln Bank of Louisville, Ky., 411 S.W.2d 465 (decided February 10, 1967).

      . Despite the fact that the stocks were gone, Amlung continued to show the dividends on the tax returns for 1957 and subsequent years.


author: STEAKLEY, Justice.

text:
    INSURANCE COMPANY OF NORTH AMERICA, Petitioner, v. Howard MYERS et al., Respondents.
    No. A-11403.
    Supreme Court of Texas.
    Nov. 16, 1966.
    Roberts, Smith, Roberts & Parker, Long-view, for petitioner.
    Jones, Jones & Baldwin, Jim Ammer-man, with firm, Smith, Hall & Huffman, Marshall, for respondent.
   STEAKLEY, Justice.

Jimmie L. Myers, wife and mother of the respondents, died on May 21, 1964, of a glioblastoma of the left frontal and parietal lobes, a malignant brain tumor. Suit was by respondents for benefits under the Workmen’s Compensation Act because of her death. It was alleged that on July 1, 1963, the decedent suffered an injury in the course of her employment which caused an excitement and aggravation of the existing tumor condition and was a producing cause of her death. The jury so found, and additionally, that her death was not solely caused by the brain tumor. Judgment of the trial court in favor of respondents was affirmed by the court of civil appeals, 399 S.W.2d 932. We reverse the judgments below and render judgment for petitioner.

Mrs. Myers had a history of regular work for several years in the employment of Blue Buckle Overall Company of Marshall, Texas. Her medical facts were shown to be these. On December 18, 1962, she blacked out at her home and was attended by Dr. Robert Koenig who referred her to Dr. Philip Bonn, a neurosurgeon. She was described to this doctor as having suffered tremors to the upper and lower extremities and to have suffered severe headaches. The findings of the doctor were negative as to the source of her trouble. Subsequently on February 5, 1963, Mrs. Myers was again seen by Dr. Koenig at which time she was complaining of pain in the neck and shoulders; it also appears that a history of a whiplash injury some three years before was then obtained. Two days later, Dr. Koenig saw Mrs. Myers in the emergency room of the hospital following a convulsive seizure and again referred her to Dr. Bonn. Dr. Bonn saw her again on March 12 and on May 24, 1963, at which times she was complaining of blurred vision, dizziness and some difficulty in walking. The doctor attributed such symptoms to the medicine and made a change in dosage. Neither Dr. Koenig nor Dr. Bonn had diagnosed her condition as a malignant brain tumor, although both testified they regarded her as a tumor suspect during this time.

The injury which respondents contend “triggered or aggravated or accelerated the growth of the brain tumor” occurred on July 1, 1963. Mrs. Myers momentarily grabbed a bundle of clothes weighing approximately 140 pounds which unexpectedly fell toward her while she was sitting at the machine she was operating for her employer. It is respondents’ theory that this caused her body to be jerked violently in the area of her head and neck in a “whiplash fashion.” She was referred to Dr. Orin Littlejohn, a company doctor, on July 6; he testified that she had received a cervical sprain described as a condition of some tearing or excessive strain on the ligaments of the neck. Later, during the period of August 3 to 10, she was hospitalized in cervical traction and given muscle relaxants, medicine for pain and physical therapy. Thereafter on August 26 Dr. Little-john referred the patient to Dr. L. A. Col-quitt, an orthopedic specialist, for examination of the cervical sprain. Mrs. Myers was again seen by Dr. Bonn on September 13 and 20 and was hospitalized from September 22 until October 2. She was seen by a Dr. Snodgrass of Galveston on November 11 and on November 19 entered the hospital in Shreveport for surgical removal of the tumor. On November 20, the operation was performed and the existence of the malignancy was established. The condition of Mrs. Myers steadily worsened until her death on May 21, 1964.

Drs. Bonn, Littlejohn and Colquitt testified that a cervical sprain injury such as that suffered by Mrs. Myers would not, in reasonable medical probability, excite or aggravate the malignant brain tumor causing her death.

The testimony of a fourth doctor, Dr. Antonio Dieste, a surgeon also engaged in general practice in Marshall, was presented by respondents. He attended Mrs. Myers from January 1, 1964, approximately six weeks after removal of the tumor, until her death. He testified in response to a hypothetical question that it was “reasonably probable that the injury she sustained could have aggravated the tumor, and become an exciting or concurring cause, so that it was one of the causes, to whatever degree, of the death of Jimmie Myers.” The following colloquy thereafter occurred on cross examination:

Q. All right sir. Then, Doctor, if that is the case, a lifting such as — not a lifting excuse me, a grabbing of a bundle by a patient such as Jimmie Lee Myers would not have been an aggravating circumstance of a glioblastoma?
A. It could have, in the terms that I have already discussed. That’s the only way it could have been—
Q. You say it could have. You are putting it on a possibility, is that right sir?
A. It is one of the many probabilities in that long list that they talked about there.
A. Well, the reason I say yes is because he asked me about a severe injury. I was not there when the injury occurred, I do not know how the injury occurred in detail, or how severe it was, I can not testify as to that. He asked me, assuming that it was a severe injury; my answer was yes.
Q. All right, sir. Now, by severe injury, then you predicated it, Doctor, on the fact that it was a severe injury of that type ?
A. Yes, sir.
Q. All right, sir. Now, Doctor, by aggravating, are you stating that this glio-blastoma was in a capsule, and she reached and got a bundle and it broke this capsule?
A. I did not — I do not remember saying that.
A. We don’t even know if there was a capsule there. I don’t know if there was a capsule there. I couldn’t tell you any more than if I had one myself right now. They were asking me questions in general about tumors, and about possibilities. That would be one of many possible ways in which a tumor could be aggravated. Now, how probable it is in this case, I don’t know the exact mechanism by which it was aggravated. I could not possibly know.
Q. Well, it was my understanding, Doctor, maybe I was wrong, that these four or five possibilities he went through, ultimately, if any of those things happened, the effect of it was that it was a rupture of the tumor.
A. I take it you are asking me if that was the specific way in which it happened to Mrs. Myers ?
Q. Yes.
A. I don’t know it, and I don’t know of anyone who knows if that was the specific way in which it happened. That was a probable way.
Q. Then the aggravation that you have testified about, you are not stating the aggravation was because it ruptured a membrane enclosing this glioblastoma?
A. Not necessarily through that mechanism alone. I don’t know which one of the mechanisms of the possible ways that it can happen did happen in this case. I am sure it is obvious to you that I don’t know.
Q. And, any whiplash she may have received of her neck had nothing to do with the cause of her death, did it doctor?
A. No, that would be changing completely what I have said.
Q. Well, I am asking the question, can you answer it ?
A. Yes, I can answer it.
Q. What was the answer ?
A. I just finished saying the opposite, when you asked me that, it confuses me. My testimony that, assuming that she had the kind of injury that they said she received, an aggravation could have resulted to this tumor, that is my testimony.

It was thus shown that Mrs. Myers was injured on July 1, 1963, while in the scope of her employment. There is evidence that this was an injury of some severity. It was also established and appears not to have been disputed, that she died as the result of a malignant brain tumor which preexisted the injury. Workmen compensation benefits are recoverable notwithstanding such condition if there was shown a causal relation between the injury and death, i. e., the cervical sprain injury suffered by Mrs. Myers excited, aggravated and activated the existing tumor condition and was a contributing or producing cause of death. Texas State Hwy. Dept. v. Fillmon, ISO Tex. 460, 242 S.W.2d 172 (1951); Garcia v. Texas Indem. Ins. Co., 146 Tex. 413, 209 S.W.2d 333 (1948); Texas Indem. Ins. Co. v. Staggs, 134 Tex. 318, 134 S.W.2d 1026 (1940) ; Guzman v. Maryland Casualty Co., 130 Tex. 62, 107 S.W.2d 356 (1937); Texas Employers’ Ins. Ass’n v. Parr, 30 S.W.2d 305 (Tex.Com.App.1930, jdgmt. adopted); Norwich Union Indemnity Co. v. Smith, 12 S.W.2d 558 (Tex.Com.App.1929, jdgmt. adopted).

The causal base of cancer and the theory of its traumatic aggravation are subjects of dispute in the medical profession. The testimony of the medical witness in the reported cases has been couched in varying terms of “could have,” “might be,” “probably aggravated,” “did cause,” “a reasonable assumption,” “might reasonably be the cause,” and so on. See Markus, Semantics of Traumatic Causation, 12 Cleveland-Marshall L. Review 233 (1963). It has been said, “Even today * * * the doctor’s cause is little more than the doctor’s conjecture.” Small, Gaffing at a Thing Called Cause: Medico-Legal Conflicts in the Concept of Causation, 31 Tex.L.Rev. 630, 632-633 (1953). And see Annot, 2 A.L.R.3d 384 (1965). The problem in workmen’s compensation cases has been considered by the courts of this and other jurisdictions under varying factual circumstances and shades of medical testimony. See Jacoby v. Texas Employers’ Ins. Ass’n, 318 S.W.2d 921 (Tex.Civ.App. — San Antonio 1958, writ ref’d n. r. e.); Scott v. Liberty Mut. Ins. Co., 204 S.W.2d 16 (Tex.Civ.App. — Austin 1947, writ ref’d n. r. e.) ; Trinity Universal Ins. Co. v. Walker, 203 S.W.2d 308 (Tex. Civ.App. — Austin 1947, writ ref’d n. r. e.) and Traders and General Ins. Co. v. Turner, 149 S.W.2d 593 (Tex.Civ.App.—Fort Worth 1941, writ dism’d jdgmt. cor.); Travelers Ins. Co. v. Rowand, 197 F.2d 283 (5th Cir.1952) ; Macon County Coal Co. v. Indus. Comm’n, 374 Ill. 219, 29 N.E.2d 87 (1940); Custer v. Higgins Indus., Inc., 24 So.2d 511 (La.App.1946) ; Sullivan’s Case, 345 Mass. 762, 186 N.E.2d 601 (1962); Luczek’s Case, 335 Mass. 675, 141 N.E.2d 526 (1957); Murphy’s Case, 328 Mass. 301, 103 N.E.2d 267, 269 (1952); Russo v. Wright Aeronautical Corp., 137 N.J.L. 346, 60 A.2d 263, 264 (1948); Parella v. Harrod Steel Erection Co., Inc., 19 A.D.2d 451, 243 N.Y.S.2d 982 (1963); Mattfield v. Ward Baking Co., 14'A.D.2d 942, 221 N.Y.S.2d 224, 225 (1961); Lefkowitz v. Silverstein, 11 A.D.2d 841, 203 N.Y.S.2d 122, 124 (1960). Many of these as well as additional cases involving cancer are cited in 1 Larson’s Workmen’s Compensation Law § 12.20 n. 43 (1961).

Other than with the possible exception of the reasoning of the court in Walker respecting cancer aggravation, we have found no case in which lay testimony and the factual circumstances of an injury, together with expert testimony clearly limited to medical possibilities, have been held sufficient to support an inference that a preexisting tumor was activated and the deadly effects of a malignancy accelerated by an injury. It is our view that such occurrence, or not, is a question of science determinable only from the testimony of expert medical professionals. See American Casualty and Life Co. v. Gueringer, 205 S.W.2d 423 (Tex.Civ.App. — San Antonio 1947, no writ). Causal connection in such a fact situation must rest in reasonable probabilities; otherwise, the inference that such actually did occur can be no more than speculation and conjecture. Whitten v. Liberty Mutual Ins. Co., 257 F.2d 699 (5th Cir. 1958). Reasonable probability, in turn, is determinable by consideration of the substance of the testimony of the expert witness and does not turn on semantics or on the use by the witness of any particular term or phrase. We have established the rule of reasonable probability in analogous situations. Expert medical testimony predictive of what will happen in the future from a present injury is confined to reasonable medical probabilities, i. e., results reasonably to be anticipated. Houston & T. C. Ry. Co. v. Fox, 106 Tex. 317, 166 S.W. 693 (1914); Galveston, H. & S. A. Ry. Co. v. Powers, 101 Tex. 161, 105 S.W. 491 (1907) ; Lentz v. City of Dallas, 96 Tex. 258, 72 S.W. 59 (1903); Gulf, C. & S. F. Ry. Co. v. Harriett, 80 Tex. 73, 15 S.W. 556 (1891). Proof of want of skill in malpractice suits must establish causal connection beyond the point of possibility by expert professional testimony. Porter v. Puryear, 153 Tex. 82, 262 S.W.2d 933, 264 S.W.2d 689 (1954); Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 13 A.L.R.2d 1 (1949). A hospital record carrying a diagnostic entry is admissible under 3737e, Vernon’s Annotated Texas Civil Statutes, only when it records a condition resting in reasonable medical certainty. Loper v. Andrews, 404 S.W.2d 300 (Tex.1966). Cf. also Travelers Ins. Co. v. Blazier, 228 S.W.2d 217 (Tex.Civ.App.—Fort Worth 1950, writ dism’d); Lumbermen’s Mut. Cas. Co. v. Vaughn, 174 S.W.2d 1001 (Tex.Civ.App.—Fort Worth 1943, no writ).

We note as not controlling here those decisions in workmen’s compensation cases in medical situations not involving the highly uncertain medical problem of the nature, origin and aggravation of cancer. See Maston v. Texas Employer’s Ins. Ass’n, 160 Tex. 439, 331 S.W.2d 907 (1960); Carter v. Travelers Ins. Co., 132 Tex. 288, 120 S.W.2d 581 (1938); Norwich Union Indemnity Co. v. Smith, 12 S.W.2d 558 (Tex. Com.App.1929, jdgmt. adopted); Aetna Ins. Co. v. Hart, 315 S.W.2d 169 (Tex.Civ.App.—Houston 1958, writ ref’d n. r. e.) ; American General Ins. Co. v. Barrett, 300 S.W. 2d 358 (Tex.Civ.App.—Texarkana 1957, writ ref’d n. r. e.); Atkinson v. United States Fidelity and Guaranty Co., 235 S.W. 2d 509 (Tex.Civ.App.—San Antonio 1951, writ ref’d n. r. e.); Associated Employers Lloyds v. Self, 192 S.W.2d 902 (Tex.Civ. App.—Dallas 1946, writ ref’d n. r. e.) ; Galveston, H. & S. A. Ry. Co. v. Harris, 172 S.W. 1129 (Tex.Civ.App. — San Antonio 1915, writ ref’d).

Here, the only medical testimony supportive of the jury finding that the injury suffered by Mrs. Myers was a producing cause of her death from cancer was the testimony of Dr. Dieste. A review of all he said in the context of the questions propounded establishes that Dr. Dieste did no more than express the medical possibility that the injury caused an aggravation or excitement of the pre-existing brain tumor in one of several possible ways and hence could have been a concurring or contributing cause of death. He himself summarized his testimony by saying that an aggravation “could have resulted to this tumor.” Dr. Dieste did not state as his medical opinion that the injury did in fact, or in reasonable medical probability, aggravate or excite the pre-existing tumor; he stated only the medical possibility that such could have occurred. The nature of the injury suffered by Mrs. Myers and her death over ten months later from a preexisting brain tumor, particularly in the light of her medical history, is not of sufficient probative force to support the inference of fact that the injury was a concurring, contributing or producing cause of her death. This is likewise true of the testimony of Dr. Dieste. In this state of the record causal connection is left to surmise or conjecture with the fact finder having to make an arbitrary choice between unproved conclusions. Cf. Western Telephone Corp. of Texas v. McCann, 128 Tex. 582, 99 S.W.2d 895 (1937).

The judgments of the court of civil appeals and the trial court are reversed and judgment is here rendered for petitioner.

         The italics throughout are added.


author: GREENHILL, Justice.

text:
    Freddie R. JACKSON, Petitioner, v. Fred L. EWTON et ux., Respondents.
    No. A-11671.
    Supremo Court of Texas.
    Feb. 22, 1967.

      Fanning & Harper, Donald A. Gilley, Dallas, for petitioner.
    Stevenson & Riley, James D. Stevenson, Dallas, for respondents.
   GREENHILL, Justice.

Fred L. Ewton and wife sued Freddie R. Jackson for personal injuries sustained when Jackson’s car struck the rear of the automobile driven by Fred Ewton. Trial was to a jury which found the defendant Jackson negligent, but convicted Ewton of contributory negligence. The trial court, however, rendered judgment for the plaintiffs Ewton notwithstanding the verdict. The Court of Civil Appeals sitting at Dallas, feeling that the case had not been fully developed, reversed the trial court’s judgment, and remanded the cause for a new trial in the interest of justice. 405 S.W.2d 443.

This suit arose out of an automobile accident in October of 1963. Ewton, his wife, and his daughter were traveling north on South Berkley, a four-lane thoroughfare in the City of Dallas. Ewton slowed to a “creep” or stop, waiting to make a right turn into a private drive, when Jackson struck him from the rear. At the time, Ew-ton was following his brother’s car, which had slowed upon entering this same private drive, causing Ewton to drive very slowly or stop before making his turn.

In response to special issues the jury found that the defendant, Jackson, failed to keep a proper lookout and that this was a proximate cause of the collision. The jury, however, acquitted him of driving too fast, following too closely, and failing to apply his brakes in time. The jury also found that the plaintiff, Ewton, attempted to make a right turn from the center lane [Special Issue No. 15], that this was negligence [Special Issue No. 16], and a proximate cause of the collision [Special Issue No. 17]. The Ewtons filed motions for the court to disregard the jury’s answers to Special Issues Nos. 15, 16, and 17, and for judgment notwithstanding the verdict. The trial court disregarded the finding to Special Issue No. 17 only, and rendered judgment notwithstanding the verdict for the plaintiffs Ewton.

The defendant, Jackson, appealed. The plaintiffs had only three counter-points in their brief in the Court of Civil Appeals, all of which were addressed to Special Issue No. 17. These will be discussed later. There were no cross-points.

The Court of Civil Appeals reversed the trial court’s judgment, holding that there was evidence to support the jury’s finding of proximate cause [Special Issue No. 17]. It, however, remanded the cause for a new trial under Rule 434 on the ground that the case had not been fully developed and that justice would be better served thereby. 405 S.W.2d at 445-446.

Jackson has filed an application for writ of error asking this Court to render judgment for him. He contends that under Rule 324, the Court of Civil Appeals was required to render judgment for him when it reversed the trial court because the Ewtons, the appellees, filed no cross-points, as distinguished from counter-points, in the Court of Civil Appeals that resulted in vitiating the jury’s verdict.

“Counter-points” are basically “reply points” as prescribed in the first clause of Rule 420: “The brief of the ap-pellee shall reply to the points relied upon by the appellant . . ..” These assist the appellate court in finding the answers given to the points of the appellant. From the standpoint of the advocate, their function is to show that the point or points of the opposite party are not valid. “Cross-points” are really “points” which are used to preserve error committed by the trial court. They are the means by which an appellee may bring forward complaints of some ruling or action of the trial court which the appellee alleges constituted error as to him. They are called for under the second clause of Rule 420: “and in case the appellee desires, to complain of any ruling or action of the trial court, his brief in regard to such matters shall follow substantially the form of the brief for appellant.” Skaggs, “The Appellee’s Brief,” in Appellate Procedure in Texas (1964) §§ 13.10, 13.16; Calvert, Some Problems of Supreme Court Review, 21 Texas Bar Journal 75, 113 (1958). It would avoid confusion if the term “reply points” were used instead of “counter-points.” As illustrative of the distinctive nature of cross-points, the interpretation of the rules by the rules subcommittee was that “the appellee’s complaint may be called a ‘point’ or a ‘cross-point’ and of course, must be accompanied by briefing as required by the rules.” See comment following Rule 420 in Vernon’s Annotated Texas Rules, page 254, and Bowman v. Puckett, on motion for rehearing, Tex.Civ. App., 185 S.W.2d 228 at 231, which holding was approved by this Court (though the cause was reversed on other grounds) in 144 Tex. 125, 188 S.W.2d 571 at 575 (1945). Rule 324 deals with and requires cross-points, not reply points or counter-points.

Normally, when a trial court has entered judgment notwithstanding the verdict, and an appellate court concludes that this was error, it must reverse the judgment of the trial court and enter judgment in harmony with the verdict, unless the appellee presents by cross-points grounds sufficient to vitiate the jury’s verdict or to prevent an affirmance of the judgment had one been entered on the verdict. Crow v. City of San Antonio, 157 Tex. 250, 301 S.W.2d 628 (1957); Le Master v. Fort Worth Transit Co., 138 Tex. 512, 160 S.W.2d 224 (1942); see Rule 324.

The Ewtons did file three counterpoints in the Court of Civil Appeals; however, they filed no cross-points, i. e., points asserting error committed against them on the trial. Their three counter-points asserted, in effect, that-the trial court properly disregarded the jury’s answer to Special Issue No. 17 and properly entered judgment notwithstanding the verdict because there was no evidence to support the jury’s finding that his negligence in turning was a proximate cause of the collision, there was no proximate cause as a matter of law, and there was no evidence to support the submission of Special Issue No. 17.

The Court of Civil Appeals overruled all of the Ewtons’ counter-points; and as stated, they have filed no application for writ of error in this Court. Under these circumstances, none of these points are properly before this Court. Calvert, Some Problems of Supreme Court Review, 21 Texas Bar Journal 75 (1958); Vanover v. Henwood, 136 Tex. 348, 150 S.W.2d 785 (1941). The Ewtons, however, contend that under Rule 434 the Court of Civil Appeals [and under Rule 505, this Court] could remand the case for a new trial, Rule 324 to the contrary notwithstanding.

In 1957, Rule 324 was amended to require the appellee to bring forward by cross-points in his brief in the Court of Civil Appeals all complaints against the verdict and any judgment based thereon except for complaints that “require the taking of evidence in addition to that adduced upon the trial of the cause.” The purpose of this amendment was to require a final disposition of the case by the appellate court, where a judgment notwithstanding the verdict is erroneously rendered by the trial court, on the basis of the record before it, and to order a remand only as to questions that require the taking of additional evidence, such as jury misconduct. Rule 324; see Franki’s comment following Rule 324, Vernon’s Annotated Texas Rules, 1966 pocket part page 301 et seq.

Under these circumstances a remand of the cause for new trial under Rule 434 or Rule 505 in a situation such as the one with which we are now faced may occur only in unusual situations. See Scott v. Liebman, 404 S.W.2d 288 (Tex.Sup.1966); Sanders v. Harder, 148 Tex. 593, 227 S.W. 2d 206 (1950); Connor v. Buckley, 380 S. W.2d 722 (Tex.Civ.App.1964, no writ); Cozby v. Edwards, 203 S.W.2d 569 (Tex.Civ.App.1947, writ ref’d n. r. e.); Dean v. Safety Casualty Co., 190 S.W.2d 750 (Tex.Civ.App.1945, writ ref’d w. o. m.).

In Sanders v. Harder, the trial court rendered judgment notwithstanding the verdict for the plaintiff, and the Court of Civil Appeals affirmed. Harder, the appellee-respondent, filed no cross-assignments revealing error committed against him on the trial, in the Court of Civil Appeals or this Court. We reversed the judgments of both the lower courts. Instead of rendering judgment under Rule 324 and Le Master v. Fort Worth Transit Co., supra, however, we remanded the cause for a new trial because the verdict was insufficient to form the basis of a judgment that Harder, the plaintiff in the trial court, take nothing.

In Scott v. Liebman, supra, the trial court rendered judgment for the defendant notwithstanding the verdict. The Court of Civil Appeals reversed the trial court’s judgment, and rendered judgment for the plaintiff, the defendant-appellee’s cross-points presenting no ground for the reversal of a judgment on the jury’s verdict. This Court agreed with the Court of Civil Appeals that the trial court had entered an erroneous judgment. We concluded, however, that, since the law on which the case had been tried and the special issues formulated had been changed by this Court between the time of trial and the appeal to the Court of Civil Appeals, we should remand in the interest of justice. 404 S.W.2d at 294. '

In so doing, we stated that the power to remand under Rule 505 constituted an exception to the rule anounced in the Le Master case. We did not mean to imply that an appellate court faced with a situation similar to the one here under consideration may remand under Rule 434 or Rule 505 instead of rendering judgment pursuant to Rule 324 under the rule announced in Le Master, without relying upon a good and sufficient reason for so doing, reflected by the record.

In this case, the Court of Civil Appeals stated only one reason for remanding the cause, i. e., that the case had not been fully developed. We have read the entire statement of facts and are unable to agree with that conclusion. There was a two-car collision. The drivers of both cars testified as well as a passenger, Mrs. Ew-ton. The parties rested without suggesting that other testimony was needed. There was no mention in the briefs in the Court of Civil Appeals that the case had not been fully developed. Counsel for the Ewtons stated in his brief that there was “very little difference between the testimony on both sides. Really, the only point of dispute is whether or not at the time of the actual impact the right side of appellees’ [Ewtons’] vehicle was three feet from the curb ... or whether it was eight feet from the curb.” It was only after the Court of Civil Appeals had rendered its opinion that the case should be remanded for a new trial because it had not been fully developed that the Ewtons (in their answer to Jackson’s motion for rehearing) stated that they had additional evidence which they could present as to the location of the Ewton car and asked for a remand. It is not stated what the evidence would be.

To so order a remand is contrary to the general rule as announced in the Le Master case, and not in keeping with the purpose of Rule 324 to provide for one appeal in the case instead of two. See Stout, Motions Non Obstante Veredicto, 18 Texas Bar Journal 271, 353 (1955). A remand in this case would not serve to provide the plaintiffs Ewton with a chance to develop questions requiring the taking of additional evidence which they had no opportunity to develop in the trial court, such as jury misconduct. Author’s comment to Rule 324, Vernon’s Annotated Texas Rules, 1966 pocket part. It would merely afford them an opportunity for another “bite at the apple.” Stout, Motions Non Obstante Veredicto, supra at 356; see London Terrace v. McAlister, 142 Tex. 608, 180 S.W.2d 619 (1944).

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

      . All references to rules herein are to the Texas Rules of Civil Procedure.


author: POPE, Justice.

text:
    John DRACOPOULAS, Petitioner, v. Seth RACHAL et al., Respondents.
    No. A-11648.
    Supreme Court of Texas.
    Jan. 25, 1967.
    Rehearing Denied March 22, 1967.

      Andress, Woodgate, Richards & Condos, William Andress, Jr., Dallas, for petitioner.
    Cervin & Stanford, Paul H. Stanford, Dallas, for respondents.
   POPE, Justice.

The question presented is whether a real estate broker may recover commissions for a sale of real estate under a written listing agreement that was orally changed during the term of the written contract so that the time for performance was indefinitely extended, and the contract’s listing provision was changed from exclusive to non-exclusive. The defendant seller urged that these changes created a contract that was partly in writing and partly oral in violation of The Real Estate License Act, art. 6573a, § 28, Vernon’s Ann.Tex.Civ.St. The trial court rendered judgment upon a verdict for the plaintiffs and awarded them $3,000.00 as their commission. The court of civil appeals affirmed. Dracopoulas v. Pixley, 405 S.W.2d 435. We reverse the judgment of the courts below and render judgment that plaintiffs take nothing.

Plaintiff, Seth Rachal, a licensed real estate broker and John Dracopoulas, owner of the property in question, signed a written real estate listing contract on March 17, 1962. Dracopoulas agreed to pay a six per cent commission to Rachal or any member of the Dallas multiple listing service “who may act in association with Broker (Ra-chal) in procuring or attempting to procure a purchaser” of Dracopoulas’ property which was described in the agreement. The contract’s term was for a sixty-day period commencing on March 17,1962, and granted Rachal an exclusive agency and an exclusive right to sell. It provided further that Rachal would be entitled to a commission if within ninety days after the termination of the contract, Dracopoulas sold or exchanged the property to any person with whom Rachal or any member of the multiple listing service had negotiated during the life of the contract, provided that within five days after the contract ended Rachal furnished seller a list of persons with whom he had negotiated.

Rachal does not contend that he is entitled to a commission because he complied with the terms of the original written contract. That contract expired on May 16, 1962, and no exchange of property was made until more than eight months later. Rachal does not, therefore, contend that within ninety days from the termination of the contract a sale or exchange was made to anyone procured by him or a member of the multiple listing service.

Rachal says that he and Dracopoulas orally agreed to an extension of the term of the listing agreement. Rachal obtained a favorable jury finding that Dracopoulas, at a time when the written contract was in force, orally agreed to an extension of the term of the original written agreement for an indefinite period. Dracopoulas was introduced to Henry Pixley by plaintiffs Rachal and Bell in September 1962, more than four months after the expiration of the original agreement. After unsuccessful negotiations, Dracopoulas and Pixley in October ended their efforts to make a trade. Four months later, in February 1963, through the efforts of a different agent who was not associated with Rachal or Bell, Dracopoulas traded his property for property belonging to Pixley. Dracopoulas paid a commission to the agent who effected the trade. Dracopoulas urges that the oral agreement to extend the terms of the original contract was in violation of The Real Estate License Act. This is the controlling issue in the case. Section 28 of art. 6573a provides:

“No action shall be brought in any court in this State for the recovery of any commission for the sale or purchase of real estate unless the promise or agreement upon which action shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith or by some person by by him thereunder lawfully authorized.”

The Real Estate License Act, like the statute of frauds, has for its purpose the prevention of frauds by requiring claims for commission in real estate transactions to be in writing. Denman v. Hall, 144 Tex. 633, 193 S.W.2d 515 (1946); Moorman v. Harris, 217 S.W.2d 182, 183 (Tex.Civ.App. 1949, no writ). Parties to a written contract that is within the provisions of the statute of frauds:

“ * * * may not by mere oral agreement alter one or more of the terms thereof and thus make a new contract resting partly in writing and partly in parol, the reason for the rule being that, when such alteration is made, part of the contract has to be proven by parol evidence, and the contract is thus exposed to all the evils which the statute was intended to remedy.” Robertson v. Melton, 131 Tex. 325, 115 S.W.2d 624, 118 A.L.R. 1505 (1938).

An exception to the stated rule permits the parties to a written contract to agree orally to extend the time of performance of a contract required to be in writing, so long as the oral agreement is made before the expiration of the written contract. Gulf Production Co. v. Continental Oil Co., 139 Tex. 183,164 S.W.2d 488 (1942); Bullis v. Noyes, 75 Tex. 540, 12 S.W. 397, 402 (1889); Watkins v. Arnold, 60 S.W.2d 476 (Tex.Civ.App.1933, writ ref.); 27 Tex.L. Rev. 268 (1948).

The oral agreement before us does more than merely extend the term of the contract. The termination date of the listing contract is the hinge upon which still other contractual rights and duties turn. The written contract had provisions which obligated Dracopoulas to pay Rachal a commission if a sale or exchange was effected within ninety days after the written agreement terminated, provided Rachal within five days after such termination date mailed to Dracopoulas a list of persons who were prospects with whom he had negotiated. The oral extension for an indefinite period of time rendered indefinite the termination date of the oral contract. The oral extension for an indefinite period effectively destroyed the provisions of the written contract which fixed a ninety-day limitation period after the contract expired during which Rachal would be entitled to his commission in the event of a sale to a person he had procured. It destroyed Dracopoulas’ immunity from a commission claim on a sale after ninety days even to persons Rachal had procured. It destroyed Rachal’s contractual duty to provide the seller within five days after the end of the contract with the names of persons with whom he had negotiated. This is evidenced by the fact that Rachal, more than four months after the original contract terminated, presented Pixley, the buyer, to Dracopoulas. Their first negotiations ended in failure and it was another four months later that negotiations were again resumed. The oral extension for an indefinite period, therefore, effectively changed two other provisions of the written contract which materially affected the broker’s right to a commission. We regard this as an oral agreement which violates the requirement that the promise or agreement to pay a real estate broker’s commission must be in writing.

In addition to the oral changes already mentioned, Rachal asserts that Draco-poulas orally agreed to change the written contract’s listing provision from exclusive to non-exclusive. Under an exclusive listing agreement, Rachal would be entitled to a commission regardless of who made or procured the sale. Neece v. A. A. A. Realty Co., 156 Tex. 614, 299 S.W.2d 270 (1957); Holmes v. Holik, 238 S.W.2d 260 (Tex. Civ.App.1951, writ dism.); 9 Tex.Jur.2d Brokers § 72. Rachal did not base his claim to a commission on the written exclusive listing agreement. On the contrary, Rachal, in conformity with his theory of an oral non-exclusive agency, requested and obtained a jury finding that he. was the procuring cause of the exchange of property between Dracopoulas and Pixley. Therefore Rachal’s suit was based on a new oral agreement which expressly violated the requirement of art. 6573a, § 28 that “the promise or agreement upon which action shall be brought * * * shall be in writing and signed by the party to be charged therewith”. The law does not recognize or enforce such agreements. Dickey v. Bird, 366 S.W.2d 859 (Tex.Civ.App.1963, writ ref. n. r. e.); Parks v. Underwood, 280 S.W.2d 320 (Tex.Civ.App.1955, writ ref. n. ,r. e.).

Rachal relies upon Garcia v. Karam, 154 Tex. 240, 245, 276 S.W.2d 255 (1955) and its holding that a written real estate sales agreement which provided that a consideration of $20,000 would be paid by merchandise at invoice could be orally changed to that same amount but without inventory. This court held that the consideration for a real estate contract does not have to be in writing to comply with the statute of frauds, and that the method of paying the consideration could be orally changed. Karam does not control our decision since the “promise or agreement” here sued upon is Rachal’s right to a commission which The Real Estate License Act requires to be stated in writing. The oral agreements which Rachal relies upon made material changes in the original written contract and are essential to Rachal’s right to recovery. They violate the requirements of The Real Estate License Act. Buratti & Montandon v. Tennant, 147 Tex. 536, 218 S.W.2d 842, 9 A.L.R.2d 742 (1949).

The judgments of the courts below are reversed and are rendered that plaintiffs take nothing.


author: DICE, Judge.

text:
    Frank Leslie BAKER, Appellant, v. The STATE of Texas, Appellee.
    No. 40022.
    Court of Criminal Appeals of Texas.
    Jan. 18, 1967.
    Rehearing Denied March 8, 1967.
    No attorney for appellant.
    Henry Wade, Dist. Atty., Scott Bradley, Robert H. Stinson, Jr., and Kerry P. Fitz-Gerald, Asst. Dist. Attys., Dallas, Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is for murder; the punishment, life.

Trial was had on January 31, 1966, and notice of appeal was given March 28, 1966.

No assignments of error by appellate brief have been filed with the clerk of the trial court, as provided by Art. 40.09, Sec. 9, of the 1965 Vernon’s Ann.Code of Criminal Procedure.

The record presents no questions of law which require a review by this court as unassigned error, under Sec. 13 of Art. 40.09, supra.

The judgment is affirmed.


author: WOODLEY, Presiding Judge.

text:
    Johnny PASSMORE, Appellant, v. The STATE of Texas, Appellee.
    No. 40112.
    Court of Criminal Appeals of Texas.
    March 1, 1967.

      Joseph H. Pool, Amarillo, for appellant.
    William Hunter, Dist. Atty., Dalhart, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is receiving and concealing stolen property; the punishment, 2 years.

The indictment alleged that appellant did unlawfully and fraudulently receive from Ned H. Coffee and did fraudulently conceal certain corporeal personal property, to-wit: “4 tires and wheels and 4 batteries,” the same being the property of Carl Griffith and being of the value of $400.00, knowing same to have been stolen.

The sufficiency of the evidence to sustain the conviction was challenged in the trial court by appellant’s brief.

The only evidence as to the value of the property is that shown by the following testimony of the owner, Carl Griffith:

“Q. Now, did you give Ned Coffee or anyone else permission to take any of these items of property?
“A. I did not.
“Q. Mr. Griffith, at the time, were you familiar with the value of these ■ items that you have described?
“A. Yes, sir.
“Q. And would those items have had an aggregate value of more than Four Hundred Dollars?
“A. Yes, sir.”

Under the court’s charge the jury was not authorized to find appellant guilty unless they found beyond a reasonable doubt that he received from Ned H. Coffee “four tires and wheels and four batteries as alleged in the indictment,” and that said property “was then and there of the-value of $400.00.”

This charge was consistent with the rule that, if the indictment alleges' the aggregate value and not the value of each article, and the property is not necessarily of uniform value, the proof must show a theft of all the property so alleged. 5 Branch’s Ann.P.C.2d Ed. p. 121, Sec. 2674, and cases cited.

There is ample evidence that Coffee stole the property described in the indictment and brought it to the wrecking yard of appellant, where he was employed. There is no evidence to sustain a finding that appellant received from Coffee all such property.

The state urges that appellant was shown to have received the four tires which were found on his truck, and that the receipt of the whole of the property stolen at the same time may be inferred from his possession of the tires.

In overruling a similar contention this Court, in Murphy v. State, 130 Tex.Cr. R. 610, 95 S.W.2d 133, said:

“The possession of recently stolen property or a part thereof will justify the conclusion that the possessor thereof committed the offense of theft, but does not justify the conclusion that he fraudulently received the stolen property knowing that it was stolen and thereafter concealed it. The unexplained possession of the motor, which was a part of the recently stolen property, alone might justify the conclusion that appellant stole the car, but would not justify the conclusion that he fraudulently received and concealed it. See Marquez v. State, 126 Tex.Cr.R. 132, 70 S.W.2d 426.” (Emphasis supplied.)

In Hodges v. State, 143 Tex.Cr.R. 573, 160 S.W.2d 262, and Robinson v. State, 141 Tex.Cr.R. 380, 148 S.W.2d 1115, cited by the state, accomplice witnesses testified that all of the stolen property was delivered to or received by the defendant.

In Kluting v. State, 90 Tex.Cr.R. 44, 232 S.W. 305, cited by the state, receipt of all of the property described in the indictment for receiving stolen property was proved, and though this is not disclosed by the opinion, the value of each pair of hosiery and each box of hosiery, as well as the aggregate value of the stolen property was alleged in the indictment.

We have grave doubt as to the sufficiency of the evidence to sustain a finding that appellant received from Coffee the batteries and wheels that were found in his wrecking yard, to which Coffee had access as his employee. Be this as it may, there is no evidence that appellant received all of the property described in the indictment as being of the aggregate value of $400.00, there being affirmative evidence that one of the stolen wheels was not found on appellant’s premises or in his possession.

The judgment is reversed and the cause remanded.


text:
    Leroy BELL, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 40053.
    Court of Criminal Appeals of Texas.
    Feb. 1, 1967.
    Rehearing Denied March 15, 1967.

      T. M. Reid, Abilene, for appellant.
    Richard M. Price, Dist. Atty., Abilene, Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

Rape by threats is the offense; the punishment, thirty years.

Trial was had and notice of appeal was given after January 1, 1966.

The facts will be stated briefly, in view of appellant’s challenge of the sufficiency of the evidence to support the conviction.

The state’s testimony shows that the prosecutrix lived with her husband and three young children in the city of Abilene. On the night in question, her husband left home around midnight and was to return later. Between one and one-thirty, the prosecutrix was awakened by a man in bed with her who she first thought was her husband. She soon discovered that the man was not her husband but was the appellant, whom she positively identified at the trial. She stated that she then tried to holler but was too scared and when she tried to run, appellant stopped her at the foot of the bed and told her if she hollered he would choke her tongue “out.” Appellant then pushed her down on the bed and told her to pull off her clothes. When she did not, appellant pulled them off. He then proceeded to put his male organ in her female organ and rape her without her consent. She stated that at such time she was scared of appellant and thought he would carry out his threat to choke her. In answer to the inquiry as to why she did not scream, the prosecutrix testified:

“A * * * He told me if I screamed or hollered he was going to choke me. So, I imagine that was any type of scream he would have choked me. I care a little bit more about my life than that.”

While the prosecutrix was being assaulted, one of her children started crying and she asked appellant to let her up so she could give the babies a bottle. She then got up and fed the babies and just “stalled” for time, waiting for her husband to return. In some fifteen minutes the husband returned to the house and appellant ran out through a bathroom window. When the husband came in the house the prosecutrix told him what had happened, and the husband tried to stop appellant but without success. Later that day when the prosecu-trix returned home from work in the afternoon, she related to the police what had happened to her on the night in question.

Appellant did not testify but offered the testimony of witnesses in an effort to show that he was not present in the home of the prosecutrix on the occasion in question.

In his charge, the court submitted to the jury the issue of appellant’s guilt of rape by threats, as charged in the indictment.

Four grounds of error are urged by appellant in his brief filed in the trial court.

It is first contended that the testimony of the prosecutrix, when considered as a whole and in the light of human experience, will not support a conviction for rape by threats. In support of such contention, appellant points to the fact that another person, a preacher, was asleep in the house during the time of the assault and that the prosecutrix did not make outcry or call to him for help. Reliance is had upon the rule referred to in Lurie v. State, 162 Tex.Cr.R. 604, 288 S.W.2d 505, that in rape cases where the prosecutrix fails to make outcry, when human experience dictates that she do so, the conviction is not substantiated upon the unsupported testimony of the prosecutrix.

We find the evidence sufficient to sustain the conviction.

The prosecutrix, in her testimony, explains that because of fear she made no outcry while appellant was present in the home and ravishing her. Further, the evidence shows that she did make outcry to her husband immediately upon his return to the home.

Appellant’s second and third grounds of error relate to the court’s charge. Complaint is made to the court’s refusal to give appellant’s requested charge defining “threats.”

In his charge, the court defined the term, “threat,” in the language of Art. 1185, Vernon’s Ann.P.C. The court’s definition of the term was correct, and we perceive no error in refusing appellant’s requested definition. 4 Branch’s Ann.P.C.2d, Sec. 1957; Gage v. State, 159 Tex.Cr.R. 336, 263 S.W.2d 553.

Complaint is also made to the court’s refusal to submit to the jury the issue of appellant’s guilt of aggravated assault and to define such offense in the charge.

We perceive no error, as the facts did not raise such an issue.

Appellant did not testify, and the testimony of his witnesses was in support of a defense of alibi. The testimony of the prosecutrix as to penetration was undisputed. See: Hart v. State, 139 Tex.Cr. R. 101, 138 S.W.2d 818; Fite v. State, 139 Tex.Cr.R. 592, 140 S.W.2d 848.

Appellant’s remaining ground of error, presented in his formal bill of exception #3, complains that the trial court restricted the argument of his counsel, and, without objection on the part of the state, called his counsel down on two particular occasions—which was an abuse of discretion and reversible error.

An examination of the bill reflects that on the two occasions complained of, the court’s action followed his ruling sustaining the state’s objection to remarks of appellant’s counsel that he knew what a preacher in the next room would have done had outcry been made by the prosecutrix. Following the court’s ruling, which was correct, appellant’s counsel attempted to tell the jury what he believed the preacher or certain other individuals would have done. This argument was not permitted by the court in view of the state’s original objection, and counsel was instructed to “Stay with the record.”

We perceive no error in the bill.

The judgment is affirmed.