author: BRADY, Commissioner.

text:
    Gladys WOODS, Plaintiff-Respondent, v. STANDARD PERSONAL LOAN PLAN, INC., a Corporation, Defendant-Appellant.
    No. 32607.
    St. Louis Court of Appeals. Missouri.
    Sept. 19, 1967.
    As Modified Oct. 17, 1967.
    Motion for Rehearing or to Transfer to Supreme Court Denied Oct. 17, 1967.

      Hinkel & Carey, Clifford L. Goetz, W. Scott Pollard, St. Louis, for defendant-appellant.
    Gregg W. Keegan, St. Louis, for plaintiff-respondent.
   BRADY, Commissioner.

Plaintiff received judgment for $2,200.00 actual and $7,000.00 punitive damages in her action for malicious prosecution of a civil action. Defendant appeals contending the trial court erred in denying its motion for a directed verdict offered at the close of all the evidence and in refusing to give an instruction offered by it. Defendant also contends both the actual and punitive damages awarded are excessive.

In those parts pertinent to this appeal plaintiff’s petition alleged defendant harassed her and threatened her with legal action; that defendant willfully and maliciously filed a false and fraudulent suit against plaintiff when defendant “ * * * knew or in the exercise of ordinary care should have known that the suit was ill founded and that plaintiff was not indebted unto said defendant.” It was further alleged that as a result of defendant’s acts plaintiff suffered damage to her reputation, lost earnings in the amount of $150.00 and suffered “great humiliation and embarrassment” to her damage in the amount of $2,-500.00. By Count II of the petition, plaintiff prayed for punitive damages in the amount of $15,000.00. The answer was a general denial.

We are required by the jury’s verdict to state the facts in the light most favorable to plaintiff. Huffstutler v. Coates, Mo., 335 S.W.2d 70. Doing so it appears from the record that on August 9, 1958, defendant made a loan of $264.75 to be repaid by eighteen consecutive installments of $18.00 each. The note evidencing this loan was signed by “Charles D. House” and plaintiff with House was designated on the note as “Borrower”. On December 9, 1958, this note, as defendant’s witnesses put it, was “renewed”. This renewal was in the form of a new note for the balance then due upon the old note plus an unspecified amount of additional money paid to House bringing the indebtedness to $350.65. It was defendant’s practice, and it was followed in this instance, to show only the principal sum due on the face of the note, the interest being computed at each payment and paid separately. Accordingly, Exhibit B, a note for $350.65, was made out. It was to be paid in twenty-four consecutive payments of $24.00 each and again bore the signature of “Charles D. House” as “Borrower”. Whether plaintiff signed this note is in dispute. Her name appears thereon opposite the signature “T. Nelson” who also witnessed House’s signature.

House, plaintiff’s nephew, became ill early in 1959 and plaintiff started making payments. However, she considered she was making payments upon the first note and so informed defendant. She did not notice that on some of the receipts she received the balance noted was larger than the amount due on the note of August 9, 1958. She continued making payments until May or June of 1960. Her testimony was that although she paid the note of August 8, 1958, in full she never received the cancelled note nor any other evidence it had been paid.

About three weeks or “maybe a month” after she made the last payment she began hearing from the defendant. She was then working at Kalmon Shoe Company where she had been employed for over thirty years at a wage of $14.00 per day for an eight hour day. She received five or six telephone calls from defendant’s employees and each time was required to leave her work and go to the office to converse with defendant’s employees about her payment of this note. This had never happened to her before in her life. Later, “They sent me a letter and I went to the (defendant’s) office and I told them that I thought the loan was paid off and they said, well, this amount yet, balance, and I said, well, it couldn’t be that much because I had already paid off that much and that was more than the loan was at the beginning. They told me, well, this was the second loan that he made.” She further testified that she informed defendant that she did not sign the note of December 9, 1958, and was not going to pay it. Upon several occasions when she was at defendant’s office to„ see_ them about this matter she asked to see the note and was told the person in charge of such matter was out and so she could not see it. She was told that if she did not make payments her wages would be garnisheed.

In May of 1960, plaintiff’s attorney wrote defendant stating the signature on the note of December 9, 1958, was not that of the plaintiff and offered to have plaintiff sign an affidavit to this effect. He further suggested the signature might have been placed on the note by House. In July of that year, plaintiff’s attorney received a letter from defendant stating: “Regarding our telephone conversation I am sending a photostatic copy of the note. You state that this is not the signature of Mrs. Woods. Please have an affidavit obtained. Gilbert Kay.” Five days later plaintiff executed the following affidavit: “I did not co-sign a note with Charles D. House for the Standard Personal Loan Plan, which note is signed Charles D. House and Gladys Woods, dated December 9, 1958, in the principal amount of $355.55. I further state I have examined a photo copy of this note which bears the signatures Charles D-House and the signature Gladys Woods and I hereby state under oath that the signature appearing on behalf of the above mentioned note is not my signature and that I did not sign same.” Later that same month, plaintiff’s attorney wrote a letter to defendant stating that he had in his possession this-affidavit but he was “ * * * somewhat reluctant to furnish you this Affidavit since there may be some criminal prosecution of this boy. However, if you care to have a. representative of the bonding company call at my office, I will be glad to further discuss this matter with him.” Defendant made no effort to see the affidavit at plaintiff’s counsel’s office or to pursue the matter further with him.

In November of 1960 defendant filed suit in Magistrate Court against plaintiff seeking recovery of $257.04 plus interest which was alleged as the balance due on the note of December 9, 1958. Plaintiff was served while she was at work and had to come to the office of her employer for that purpose. Her fellow employees and her employer made some comments to her about the matter but what was said does not appear in the record. Trial of that cause resulted in judgment being rendered in favor of Mrs. Woods. Defendant did not appeal that decision.

Lester Caplan, defendant’s President, testified the “counter work” on the loan of December 9, 1958, was handled by Tod Nelson, a trainee then with the defendant and who was in Kenosha, Wisconsin at the date of the trial of this case. Caplan testified he approved the loan in the presence of House and the plaintiff but admitted he did not see the plaintiff sign this note nor did he see to whom the additional money was paid. When the loan was made a credit life insurance policy on House was taken out and plaintiff was named as the beneficiary. Defendant also introduced into evidence its Exhibit D, an “Application and Financial Statement”, bearing the signature “Gladys Woods” and witnessed by “T. Nelson”. This statement bears the date of December 9, 1958. Plaintiff denied signing such a statement.

The defendant’s witness Wachter was given defendant’s Exhibits A, B, and C for the purpose of giving an opinion whether the signature “Gladys Woods” appearing on each was written by the same person. “A” was a piece of paper upon which plaintiff had signed her name five times; “B” was the note of December 9, 1958, which she denied she signed; and “C” was the note of August 9, 1958, which plaintiff admitted signing. His testimony was: “That the party who had applied the signatures on A, and B, was a different party than had applied the signature on Exhibit C.”

The nature of defendant’s allegations of error renders unnecessary a recitation of the evidence as to its financial status. The evidence of plaintiff’s out-of-pocket loss showed she was off work five times for a half day each and also missed one full day when the case was tried in the Magistrate Court. She had to pay a $75.00 attorney’s fee. In November of 1964 she quit her job and went to work with another company.

It appears from the record that the deposition of Charles House was taken at the same time as was plaintiff’s. For some unexplained reason House was not a witness nor was his deposition or any part of it read into evidence. At the date of the trial of the malicious prosecution action House had fully paid the note of December 9, 1958.

Defendant offered and the court refused to give the following instruction which is admittedly not taken from M.A.I.: “Your verdict must be for the defendant if you believe: The plaintiff signed the promissory note dated December 9, 1958, in the sum of $350.65, made payable to the defendant and introduced into evidence as Defendant’s Exhibit “B”.” The trial court did give Instruction No. 4 which informed the jury that their verdict must be for the defendant if they believed that at the time of the institution of the Magistrate Court action against plaintiff defendant had reasonable grounds to believe plaintiff had executed defendant’s Exhibit B.

It is important to keep clearly in mind what is not involved in this appeal.. The general principle governing an action to recover for a wrongful initiation of a. civil proceeding is stated in the Restatement of the Law, Torts, § 674, at p. 440. It is there stated that one who initiates or procures the initiation of a civil proceeding against another is liable for the harm done thereby if (1) the proceedings are initiated without probable cause, and (2) primarily for a purpose other than securing the adjudication of a claim on which the proceedings are based, and (3) the proceedings have terminated in favor of the person against whom they are brought. In the instant appeal there is no question but that the Magistrate Court’s proceedings brought by the defendant v/ere terminated in favor of the plaintiff. As earlier stated, one of the issues in this appeal is whether the defendant initiated the Magistrate Court proceedings without probable cause. No issue with regard to the other requirement, (2) above, is presented in this appeal. However, those interested may refer to Restatement of the Law, Torts, Chapter 30, § 676. Similarly it must be kept in mind, with reference to the point raised herein as to the existence of probable cause, there is no issue as to whether defendant acted upon the advice of counsel and whether such advice was given under such conditions (full disclosure of the facts, etc.) as would constitute a defense for the defendant. See Restatement of the Law, Torts, Chapter 30, § 675; ibid., Chapter 29, § 666.

Defendant first contends the trial court erred in refusing to sustain its motion for directed verdict offered at the close of all the evidence and in support thereof alleges plaintiff failed to prove want of probable cause. “Probable cause is defined in 54 C.J.S. Malicious Prosecution § 22, as follows: ‘Probable cause in civil proceedings consists of such facts and circumstances as will warrant a cautious, reasonable and prudent man in the honest belief that his action and the means taken in prosecution of it are just, legal, and proper.’ * * * 34 Am.Jr.P., Malicious Prosecution, page 732, defines want of probable cause in the following words: ‘With reference to civil actions, probable cause has been said to be such reason supported by facts and circumstances as will warrant a cautious man in the belief that his action and the means taken in prosecuting it are legally just and proper.’ * * * ” And in 54 C.J.S. Malicious Prosecution § 97, at page 1088, it is said: “The question of probable cause in actions for malicious prosecution is solely for the determination of the court where the facts relied on are admitted or undisputed and only one inference can be drawn therefrom.”

We cannot agree that the facts as to this issue were undisputed. Neither can we agree the only inference to be drawn from them is one which would require the trial court to sustain defendant’s motion for a directed verdict. Defendant did have a note in its possession which bore the signature “Gladys Woods” but its officers were also cognizant of the fact she denied this was her signature and had in fact made a sworn statement to that effect which they could have seen had they been inclined to do so. Defendant must also be held to know that Mr. Caplan did not see plaintiff sign this note nor did he see her receive any of the additional money paid when the note was signed. Under these circumstances the jury could well find a cautious, reasonable, and prudent person would take other steps to insure the Magistrate Court action was in fact brought against the proper party. Defendant places great reliance upon the fact plaintiff made payments after the second note was executed and received receipts upon which the balance stated as due was so in excess of the original balance due upon the August note as to warn plaintiff the payments could not in fact be upon that note. Plaintiff’s explanation was that she did not notice the balances on the receipts and informed the defendant that she was making payments upon the original note. The matter was therefore disputed and the jury could believe or disbelieve plaintiff’s explanation. What defendant now seeks is to have us rule the issue of probable cause as a matter of law. To sustain its position we would have to say that reasonable minds could not arrive at any other conclusion than that a cautious, reasonable, and prudent person must honestly believe plaintiff signed the note of December 9, 1958, and the action taken to collect the note was just, legal, and proper without any further inquiry by defendant. This we cannot do. Under the factual situation here presented the issue of probable cause was one upon which reasonable minds might well differ. It follows the trial court correctly ruled defendant’s motion for directed verdict offered at the close of all the evidence.

Neither can we find any error in the trial court’s action in refusing the offered instruction. Whether plaintiff had in fact signed the promissory note was not an issue in the malicious prosecution action. 54 C.J.S., supra; 34 Am.Jur., supra. That was an issue in the action brought upon the note in the Magistrate Court. For this reason it is unnecessary to further consider the testimony of the witness Wachter. His evidence went principally to whether plaintiff did in fact sign the note of December 9th. In this connection it might be said that the probative value of Wachter’s testimony was very doubtful since it was contradictory to admitted facts which were agreed upon by both parties. In any event, Wachter’s testimony was of no assistance to defendant as, if it had any probative value, it was that the person who signed the name “Gladys Woods” to the note which plaintiff denied signing was a different person than that who placed the same name upon the note which plaintiff admitted signing.

The issue involved in the malicious prosecution action was the presence or absence of probable cause. Kvasnicka v. Montgomery Ward & Co., 350 Mo. 360, 166 S.W.2d 503. Since there is no contention otherwise, we must assume this issue was correctly submitted to the jury when the trial court gave defendant’s offered Instruction No. 4 informing them their verdict must be for defendant if they believed defendant had reasonable grounds to believe plaintiff had executed the note when it instituted the Magistrate Court action. The trial court properly refused the offered instruction.

The last two allegations of error deal with the damages awarded which are alleged to be excessive both as to actual and as to punitive damages. As this court has recently had opportunity to state (see Bertram v. Wunning, 417 S.W.2d 120, opinion filed May 16, 1967) : “In Missouri excessive verdicts fall into two categories; i. e., (1) verdicts reflecting what has been characterized as ‘simple excessiveness’, and (2) verdicts reflecting excessiveness by misconduct. The first is the result of an honest mistake by the jury so that the sum awarded is disproportionate under the rule of uniformity. Errors of this nature should be cured by enforced remittitur thus avoiding the delay and expense incident to retrial. The latter type of excessive verdict usually savors of bias and prejudice engendered during trial. A verdict of this nature cannot be cured by remittitur and necessitates a new trial. Moore v. Glasgow, Mo.App., 366 S.W.2d 475, l. c. 478, and cases there cited.” As to actual damages defendant contends there was no testimony of actual damage except the loss of time and attorney’s fees. With regard to punitive damages defendant contends the amount awarded, to quote from its brief: “ * * * does not bear any real relationship to the injuries sustained” and is “ * * * disproportionate to the amounts usually awarded for comparable injuries under the rules of uniformity.” It is therefore clear defendant’s allegations of error with regard to excessiveness fall within that category which has been referred to as “simple excessiveness”. Since we are bound on appeal by the issues raised by defendant in its brief, it follows that if we sustain defendant’s contentions with regard to excessiveness it would not be necessary to order a new trial. Bertram v. Wunning, supra; Moore v. Glasgow, supra.

As has been stated previously herein the only evidence of actual out-of-pocket loss suffered by the plaintiff can be computed at a total of $124.00 on the basis of a loss of one full day at $14.00, five half-days at $7.00 each, and an attorney’s fee of $75.00. However, it is well settled that in an action for malicious prosecution actual damages can include injury to reputation, mental and physical suffering caused thereby, and the general impairment of social standing. Foley v. Union House Furnishing Co., 228 Mo.App. 1063, 60 S.W.2d 725; 54 C.J.S. Malicious Prosecution § 112, p. 1103; Restatement of the Law, Torts, Chapter 30, § 681. (An early and probably the leading case in this jurisdiction on the subject is Walser v. Thies, 56 Mo. 89.) Comment (b) following § 681 of Chapter 30 of the Restatement of Torts makes clear the distinction between dam ages recoverable in an action for wrongful initiation of civil proceedings and those recoverable where the proceedings wrongfully initiated are criminal. “ * * * The accusation of criminal misconduct carried to the point where criminal proceedings are instituted is of itself defamatory and, therefore, the mere bringing of criminal proceedings is assumed to have caused injury to the reputation of the accused.” Restatement, supra, § 681. “Thus, the plaintiff may recover for such injury to his reputation as normally results from the publication of the accusation without proving that his reputation has been lowered. So too, a plaintiff may recover damages for the distress which normally results from being prosecuted for a crime without proving that he has suffered any emotional disturbance.” See Restatement of the Law, Torts, Wrongful Prosecution, Chapter 29, § 670, p. 429. A wrongfully initiated civil action is not in itself defamatory to the person against whom the proceedings are brought. It depends upon the matters alleged in the action. Quoting from Comment (b), p. 461, Restatement of Torts, supra: “ * * * In a word, the test is whether the defendant’s pleadings are such that if not protected by the privilege of a litigant (see § 587) they would be actionable under the rules which govern recovery for defamation.” The examples given in the Comment hypothesize an action brought to determine the ownership of land claimed in good faith by both parties as contrasted to an action based upon the alleged fraudulent conduct of a defendant. The former does not carry with it the defamatory implication inherent in the latter. The result would be that in the latter case the plaintiff in the suit for malicious prosecution of a civil action would be in the same position as to proof of damages as if a criminal prosecution had been wrongfully instituted against him and would not have to submit further proof in order to recover damages for the harm to his reputation or to the distress which he suffered. In the former case he would have to submit such proof. The Magistrate Court action which formed the basis for plaintiff’s action for malicious prosecution falls clearly within the former category and contains no defamatory implication per se. Accordingly, plaintiff must submit further proof of damage to her reputation and of her mental suffering and embarrassment in order to sustain the difference between her out-of-pocket expenses of $124.00 and the $2,200.00 awarded by the jury.

In this connection her evidence that when she was served with process her fellow employees and her employer made some “comments” has no probative value. The nature of the comments made was not stated and the jury was left to speculate as to them. Such evidence is as susceptible to the inference that the comments made were unfavorable to defendant as it is to the inference the comments were unfavorable to plaintiff with the result that this testimony becomes valueless.

Plaintiff’s evidence she continued to work at her place of employment until November of 1964 when she “quit” to accept work with another company is of no assistance to her. When we recall that she did not change employment until November of 1964 although her troubles with defendant began in May or June of 1960, the more reasonable inference is that her change of employment was due to reasons other than her troubles with defendant.

The transcript does disclose that plaintiff was called to the telephone upon numerous occasions while at work and the jury could infer that in the hearing of her employer and the office employees she had to converse with defendant’s employees as to why she hadn’t paid this note; that she was threatened with having a garnishment run upon her wages; and that this never happened to her before. In addition, there is the evidence from which the jury could infer conversations of this same nature took place in defendant’s office in the presence of its employees and whomever might be within hearing. The record is devoid of any testimony by her that she was embarrassed or of any other statement by her which, giving her the benefit of all reasonable inferences as we must do, can be said to support her contention there is ample evidence to support the award for actual damages. Plaintiff relies upon Foley v. Union House Furnishing Co., supra, but the distinction between the evidence in Foley and that in the instant case is obvious. In Foley the plaintiff testified he was very much humiliated because he was told in the presence of twenty to forty other employees that his wages had been garnisheed and because his foreman stated publicly in the hearing of the other employees that he “wanted to know why in the hell I didn’t pay my bills.”

An allegation of “simple excessiveness” encompasses a situation where the verdict is not supported by the evidence. Connoley v. Beyer Crushed Rock Co., 355 Mo. 684, 197 S.W.2d 653, l. c. 656 [7, 8]; Moore v. Glasgow, supra. This is the situation in the instant appeal. It follows that defendant’s contention with regard to the exces-siveness of the award for actual damages must be sustained.

We pass now to defendant’s contentions with regard to the excessiveness of the verdict as to punitive damages. With regard to the contention the award for punitive damages should be found excessive “ * * * under the rules of uniformity” we hold that this contention is without merit. It is well settled that whether punitive damages are to be awarded is largely a matter within the discretion of the jury who are to keep in mind the nature of the wrong committed and such aggravating circumstances as may be shown rather than the measure of compensation to plaintiff. 54 C.J.S. Malicious Prosecution § 114, p. 1106. In the same work at § 115 it is stated that the jury are the proper judges of the amount of punitive damages to be awarded and the verdict will not be disturbed unless their determination appears to have been influenced by some passion, prejudice, or other improper motive. As previously stated, defendant does not raise any contention of passion or prejudice but contents himself with an allegation of “simple excessiveness”. -

With regard to the contention this award does not bear any real relationship to the injuries sustained, we rule that contention against defendant. It has oftea been said the amount of punitive damages: awarded should bear some reasonable-proportion to the injury sustained but such-, a general statement is of little value as a guide. In State ex rel. St. Joseph Belt R. Co. v. Shain, 341 Mo. 733, 108 S.W.2d 351, an award of $4,000.00 punitive damages was allowed to stand although the verdict for actual damages was only $1.00. It requires no citation to sustain the proposition that punitive damages rest upon a different basis than do actual damages which are compensatory in nature. We find nothing in this record compelling us to disturb the jury’s verdict as to punitive damages.

It follows the judgment should be reversed and the cause remanded to the trial court with directions that it enter its judgment in favor of plaintiff and award her actual damages of $124.00 and punitive damages in the amount of $7,000.00.

PER CURIAM:

The foregoing opinion by BRADY, C., is adopted as the opinion of the court. The judgment is reversed and the cause remanded to the trial court with directions that it enter its judgment in favor of plaintiff and award her actual damages of $124.00 and punitive damages in the amount of $7,000.00.

RUDDY, Acting P. J., SAMUEL E. SEMPLE, Special Judge, and WOLFE, J., concur.


source: Caselaw Access Project

author: HILL, Judge.

license: Public Domain

text:
    Barney ELLIOTT, d/b/a Callas Grill, Appellant, v. Betty DOWELL, Appellee.
    Court of Appeals of Kentucky.
    March 10, 1967.
    Rehearing Denied Dec. 1, 1967.
    Jerry W. Nall, Nall & Stephens, Owens-boro, for appellant.
    Robert L. Gwin, Gwin & Iler, Owens-boro, for appellee.
   HILL, Judge.

This is an appeal by the appellant-employer from a judgment for $371.43 and a $100 attorney fee in appellee-employee’s suit filed pursuant to KRS 337.360 to recover minimum wages under a mandatory order issued by the Kentucky Department of Labor effective August 1, 1962.

First we discuss a procedural question. The complaint sought a recovery of $800. By amended answer and counterclaim, tendered two days before the trial, appellant undertook to join a third party and to recover $20,000 against the appellee and the third party. The court overruled appellant’s motion to file the amended answer and counterclaim, and we think properly so. It was alleged therein that one William M. Cart, an employee of the Department of Labor, encouraged and persuaded the appellee to file her suit. It came too late. It is concluded the trial judge did not abuse his discretion in overruling appellant’s motion to file amended answer.

It was held by this court in Sache v. Beams, Ky., 337 S.W.2d 678, 680 (1960) that, “a tendered pleading, even though the court does not permit it to be filed, still constitutes one of the ‘pleadings’ to which we may look in ascertaining the amount in controversy under KRS 21.070.”

Next it is insisted by appellant that the complaint did not state a cause of action upon which relief could be granted. A number of cases have been cited by appellant in support of this position, but it is to be noted they were rendered before the adoption of CR 8.01, which provides:

“A pleading which sets forth a claim for relief, * * * shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief and (2) a demand for judgment for the relief to which he deems himself entitled.”

It is alleged in the complaint that appellee was employed from August 1, 1962, until December 1963 as a waitress in the appellant’s place of business in Owensboro, Kentucky; that she was paid for said work only sixty cents per hour for a “period of time” and only sixty-five cents per hour for a “period of time,” in violation of the mandatory order. Under recent liberal rules, we conclude the allegations of the complaint were adequate.

The instructions are questioned on the grounds that the pleadings do not properly support them. Here again the sufficiency of the pleadings is brought into question, which we have heretofore determined to be sufficient. The evidence fully justified the instructions given by the court.

Finally the appellant contends that ap-pellee did not meet the burden of proof by showing that the mandatory order was in force at the time of the trial. In discussing the effective date of the order in question, it was said in Gering v. Brown Hotel Corporation, Ky., 396 S.W.2d 332, 337 (1965) that:

“From our discussion above, it is clear the trial court neither undertook nor possessed the power to alter the effective date of the wage order in controversy. When it affirmed such wage order and this Court affirmed that judgment, the order constituted the law beginning August 1, 1962.”
* * *
“There is no ground upon which we could annul the rights of employees acquired under that order.”

This court is required by KRS 13.105 to take judicial notice of “regulations” of the Department of Labor when properly formulated, advertised, and recorded. The order in question is found in Kentucky Administrative Regulations Service, Volume III, Labor 30 and appears regular on its face.

The judgment is affirmed.

All concur.


author: EDWARD P. HILL, Judge.

text:
    Billy R. EPPERSON et ux., Appellants, v. BRISCOE MANOR SEWER CONSTRUCTION DISTRICT, Appellee. Thomas W. WILLIS et ux., Appellants, v. BRISCOE MANOR SEWER CONSTRUCTION DISTRICT, Appellee.
    Court of Appeals of Kentucky.
    Dec. 16, 1966.
    As Modified on Denial of Rehearing Nov. 17, 1967.

      Blakey Helm, H. E. Rose, Louisville, for appellants.
    Edward T. Ewen, Jr., R. D. McAfee, Louisville, for appellee.
   EDWARD P. HILL, Judge.

These two actions to condemn temporary and permanent easements for a sewer project over appellants’ lots located on Saxon Boulevard in Louisville, Kentucky, were consolidated and tried together. The jury awarded appellants one dollar each, the exact amounts allowed them by the commissioners appointed by the county court. Being dissatisfied with the verdict, they prosecuted this appeal demanding reversal on two grounds: (1) The condemnation proceedings were initiated under the wrong statute, and (2) the amount of the verdict was insufficient.

Before discussing the two grounds argued by appellants, we should consider jurisdictional questions raised by appellee. It is contended by appellee that the evidence discloses the amount in controversy in the Ep-person case to be only $641.14 and in the Willis case to be only $6.

It is not the evidence but the pleadings and the judgment that determine the amount “in controversy” so as to authorize an appeal. In these proceedings, the pleadings consist of the exceptions, answer, and amended answers filed by appellants; in which appellant Epperson claims a total of $4,200 and appellant Willis claims $700.

Epperson has appealed as a matter of right, which we think he had a right to do. Appellant Willis proceeded by motion for appeal, which we heretofore sustained. We shall not disturb our previous order granting appeal as to Willis and proceed to discuss the merits in both cases.

Appellants’ first argument is that appellee proceeded under the wrong statute.

The statute governing sewer construction districts, KRS 76.32S, authorizes acquisition of property by condemnation but does not specify the procedure to be followed. The district chose to follow the procedure for oil or gas pipe lines set out in KRS 416.230. The appellants contend that KRS 58.140, which relates to condemnation for public projects generally, limits the procedure either to that specified for railroads in KRS 416.010 to 416.080 or to that specified for parks in KRS 416.120. Originally, the railroad method and the park method were the only statutory procedures for condemnation in Kentucky, and public agencies with the power of condemnation were authorized to follow one or the other procedure. See cross references under KRS 416.010 and 416.120. Since 1942 many new procedures have been prescribed by statute, for use by different classes of condemnors. In 1958 railroads were authorized by KRS 416.015 to use some of the new procedures set forth in KRS 416.230 to 416.310 (note that 416.230 is the one here in question).

We think that since railroad condemnation procedure was authorized by KRS 58.140, in 1946, to be used in condemning for public projects generally, and since the railroads were authorized in 1958, by KRS 416.015, to use alternative procedures, the authorization granted by KRS 58.140 reasonably should be considered to extend so as to embrace the alternative procedures. Accordingly, we think that the use in the instant case of the procedure specified in KRS 416.230 was proper.

Next, we consider the argument that the one dollar verdict in each case was inadequate. At the first crack of dawn in these cases, it would appear that if the temporary and permanent easements are worth anything, they are worth more than one dollar. But these two cases require a closer look in broad daylight. Property owners in all eminent domain cases are entitled to just compensation for the land taken. Sections 13 and 242 of the Constitution of Kentucky.

It is argued by appellants that the circuit court erred in following the ruling in Commonwealth, Department of Highways v. Sherrod, Ky., 367 S.W.2d 844 (1964), both in admitting evidence and in the instructions. The crux of appellants’ whole argument is that these cases being sewer district condemnation proceedings in which the entire cost of the whole project is paid by the property owners along the sewer line, it would be unfair, unjust, and unconstitutional to charge them with the benefits or enhancement of their property by reason of the construction of the sewer system; that to do so amounts to requiring them to pay for the system through the statutory plan of assessment and then pay a second time by way of charging them for the enhancement of their property, an element in the after value.

We consider appellants’ position to be sound. The obvious basis for the rule in Sherrod that any enhancement in value “growing out of the improvement” shall be considered in fixing the “after” value is that the condemnor is supplying the enhancement. Such is not the case where, as here, the entire cost of the improvement is paid by the property owners through special assessments. In this situation each landowner, in principle, is paying for so much of the improvement as benefits his property, so he is supplying the enhancement. Of course it may be in some instances that the enhancement exceeds in value the amount of the special assessment, hut even then it is the property owner’s money that produces the value.

Upon another trial of this case the circuit court will exclude from consideration of the jury any enhancement of value attributable to the improvement project.

The judgments are reversed for proceedings in keeping with this opinion.


text:
    Paul DANIEL, Appellant, v. Vernon KERBY, b/n/f Ethel Kerby et al., Appellees. Paul DANIEL, Appellant, v. Tip DAVENPORT et al., Appellees. Paul DANIEL, Appellant, v. Boston SANDLIN et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 3, 1967.

      Charles R. Coy, Chenault, Coy & Sword, Richmond, for appellant.
    Steve Robbins, Richmond, Alex R. Ernberg, Berea, Thomas D. Shumate, Shu-mate, Shumate & Flaherty, George T. Ross, Richmond, for appellees.
   EDWARD P. HILL, Judge.

On December 20, 1962, near twilight on a rainy evening, Boston Sandlin left his disabled Ford truck standing in the southbound lane of U. S. 421 a few miles south of Richmond, Kentucky, without lights or flares or anyone to flag traffic. A few minutes later and after full darkness had fallen, William Floyd Kerby was driving a Ford touring car southwardly with Tip Davenport and Vernon Kerby as his passengers or guests. Paul Daniel was driving south in his Chevrolet just following the Kerby Ford car.

As Kerby came upon the dark and disabled truck belonging to Sandlin, he slowed down or stopped his car (there is some controversy as to whether he came to a complete stop or slowed down) with his wheels cut to his left preparatory to cutting around the disabled Ford truck. In the meantime, James T. Dickerson came along driving his two-ton GMC truck north carrying a heavy load of coal.

The Kerby Ford either cut over into the northbound lane of traffic in front of the Dickerson truck, or it was struck and shunted into the path of the Dickerson truck.

Considerable damage was done to both vehicles and some personal injuries were sustained by the two passengers in the Kerby Ford car. Ironically, the dark and disabled truck escaped without a scratch.

Without detailing the suits, counterclaims, and third-party complaints, it may be said everybody sued everybody. At the conclusion of a trial without a jury, the distinguished circuit judge, sitting as special judge, found that the negligence of appellant Paul Daniel was the proximate cause of the three-way wreck and awarded damages to Dickerson and his insurance carrier for $3816, to William T. Kerby $808.20 for property damages, to Tip Davenport $621.65 for medical expense and pain, and to Vernon Kerby $3215 for medical bills and pain, all against Paul Daniel. Daniel appeals.

Appellant presents these arguments: (1) He contends the negligence of Sandlin leaving the disabled truck on the highway was the proximate cause of the accident; (2) that William Floyd Kerby was negligent in driving into the northbound lane, which constituted “a proximate cause” of the wreck; (3) that the evidence was insufficient to support the award of damages to Dickerson; and (4) that Dickerson was guilty of contributory negligence.

Taking first the argument that Sandlin’s leaving his disabled truck standing on the highway was the proximate cause of the accident, we quote from the opinion of the trial judge performing the function of a jury:

“The court is of the opinion that Boston Sandlin in leaving his truck parked on the highway was not proper conduct in view of the fact he left no warning signals of its presence there on a rainy, dark night. Yet, this action was not the proximate cause of the accident nor did this factor contribute to the causation in any degree of liability. All parties saw this truck in time to avoid striking it; it did not suddenly appear into the line of sight of any of the other parties concerned and apparently warning signals, had they been given, would not have been a safety factor under these circumstances.”

The finding that “all parties saw this truck in time to avoid striking it,” removed Sandlin’s illegal stopping of his track in the highway as the proximate cause. Cf. Pence v. Sprinkles, Ky., 394 S.W.2d 945 (1965). This is sufficient answer to appellant’s first contention. The findings of fact by the trial judge rank in equal dignity with the verdict of a properly instructed jury and will not he disturbed unless clearly erroneous. CR 52.01.

Appellant’s second argument to the effect that Kerby was negligent in driving into the opposite lane in front of the Dickerson car, assumes that Kerby did so. The trouble with this argument is that the trial court found that Daniel knocked the Kerby car into the path of the Dickerson truck. The trial judge found “that the preponderance of the evidence establishes that Daniel was negligent in the operation of his automobile in that he drove his automobile into the rear end of the automobile being driven by Kerby; that his negligence was the proximate cause of this accident resulting in the injuries and damages to the truck of Dickerson, the automobile of Kerby and the personal injuries of William Kerby, Vernon Kerby and Tip Davenport.”

The court further found in this same vein that :

“The court has considered the testimony of each witness and finds that every witness involved in the accident except Sandlin and Daniel, testified that Kerby stopped his automobile behind the truck of Sandlin; the three occupants of the Kerby automobile testified that the Kerby automobile was knocked into the path of the oncoming Dickerson track, and the court was particularly impressed by the testimony of Tip Monroe Davenport.”

The testimony being in sharp conflict presented a question for the trial court to resolve. He resolved it in favor of appellees. We may not disturb it. CR 52.01.

Next appellant takes the position the proof was not sufficient to justify the judgment on damages to the Dickerson truck. Appellant also says Dickerson may not recover for loss of use of his truck since it was totally destroyed.

The answer to this position is that there was evidence of the before and after value of Dickerson’s truck, and it was not totally destroyed. Appellant’s brief indicates the trial court fixed the salvage value of the truck at $400. Whether it was a total wreck or not becomes unimportant in the face of the evidence that the use of the truck was worth $40 per day and that it would require 60 days to replace the truck with a coal hauling bed thereon. The trial court allowed only one-third of loss of use estimated by Dickerson. We do not believe the judgment was erroneous in this respect.

This leaves appellant’s last contention that Dickerson was “guilty of contributory negligence which will bar his recovery.” The trial court found no evidence of negligence on the part of Dickerson, and we find none. Dickerson was too close upon the Kerby car when it crossed into his lane of traffic to avoid the accident.

The judgment in its entirety is affirmed.

WILLIAMS, C. J., and MONTGOMERY, MILLIKEN and STEINFELD, JJ., concur.

OSBORNE and PALMORE, JJ., not sitting.


author: CHARLES E. LOWE, Special Commissioner.

text:
    William Russell PRESTON, Appellant, v. ELM HILL MEATS, INC., a Corporation, Appellee.
    Court of Appeals of Kentucky.
    June 30, 1967.
    Rehearing Denied Dec. 1, 1967.
    Frank G. Gilliam, Wm. S. Black, Lexington, for appellant.
    Allen, Duncan, Duncan & Arnold, Stoll, Keenon & Park, Lexington, for appellee.
   CHARLES E. LOWE, Special Commissioner.

The vexing issue presented in this appeal is on a summary judgment. The appellant, William Russell Preston, sixteen years of age, was employed by the appellee, Elm Hill Meats, Inc., on or about June 17, 1963. An employment certificate was prepared and filed for “works in Beef cooler — general labor with meats — no dangerous materials involved.” On July 1, 1963, in the course of his employment while operating a meat grinding machine his hand became caught and injuries sustained which resulted in amputation of his right arm. The work he was doing at the time of his injury may have been in violation of the Child Labor Act, KRS 339.230 and KRS 339.240. It is contended that the Company fraudulently procured his acceptance of the Workmen’s Compensation benefits through inducing his mother, his statutory guardian, to elect to take benefits under the Act and not informing her that she could sue at law for damages.

While in the hospital, appellant and his mother, Juanita Thompson, signed an agreement as to compensation with Liberty Mutual Insurance Company, the compensation carrier for appellee. Later the adjuster for Liberty Mutual Insurance Company advised Mrs. Thompson and appellant that she would have to be appointed guardian for her son before payments could be made. She contacted an attorney and discussed her son’s situation and, after being advised that she was receiving full compensation benefits allowed under the Compensation Act for the loss of an arm, she was appointed guardian and again signed an agreement as guardian along with her son’s signature to receive these benefits.

The Liberty Mutual Insurance Company also agreed with the guardian, if she would discharge her attorney, that they would (and they did) permit her son to attend its rehabilitation center in Boston, Massachusetts, where he furnished a prosthetic fitting, artificial arm, and given rehabilitation training. The Company also paid the expenses for the appellant’s stepfather, including transportation, room and board, while he was enrolled at the Center.

On March 17, 1965, appellant filed suit for damages for personal injuries and permanent impairment of his earning power. The answer set out settlement as a bar to this action.

KRS 342.170 provides in part, as follows:

“If any minor employee is injured or killed while being employed by the employer in willful and known violation of any law of this state regulating the employment of minors, the statutory guardian or personal representative of the min- or may claim compensation under this chapter or may sue to recover damages as if this chapter did not exist. If a claim for compensation is made under this section, the making of such claim shall be a waiver and bar to all rights of action on account of that injury or death as to all persons”.

By way of reply, the appellant says no claim was made for Workmen’s Compensation benefits and that the settlement made by the appellant’s statutory guardian was procured by fraud. We conclude that the acceptance of compensation through an agreement approved by the Workmen’s Compensation Board was as effective legally as filing a claim and having the Board rule on it and award compensation; in both instances it is an award of the Board, so effective as such.

The appellant has accepted and retained the benefits from Liberty Mutual and his compensation award confirmed under the Workmen’s Compensation Act. It is apparent from the mother’s affidavit that she was motivated by the desire or need of acquiring prompt medical service and rehabilitation training for her son which the insurance carrier offered in addition to the maximum compensation it was required to pay under the Compensation Act. Had she and her son filed a common law action, then they would have elected to take the chance of obtaining a larger recovery, but would at the same time have waived their rights under the compensation law. The acceptance of compensation under the Act afforded the prompt and certain relief the Act was intended to afford, and her affidavit discloses that was why she accepted its benefits.

We have carefully considered the affidavits filed in this record, and we do not feel that any acts or statements made by the adjuster' would constitute fraud. Patrick v. Highbaugh, Ky., 347 S.W.2d 88.

The procedure provided by Rule 56 is designed to promote the expeditious disposition of cases and to avoid unnecessary trials when no genuine issue of facts is raised.

We, therefore, are in accord with the ruling and order entered by the trial court dismissing the complaint and the judgment is affirmed.

All concur.


author: OSBORNE, Judge.

text:
    Rosetta HALL et al., Appellants, v. Arthur Lee CHILDRESS et al., Appellees.
    Court of Appeals of Kentucky.
    Sept. 29, 1967.
    Rehearing Denied Dec. 1, 1967.
    Wilbur O. Fields, Louisville, for appellants.
    J. Earl Dearing, Charles J. Lunderman, Jr., Louisville, for appellees.
   OSBORNE, Judge.

This is an appeal from an order of the Jefferson Circuit Court allowing probate of the will of Sarah Hampton, a widow, who was 69 years of age at the time of her death. The appellants are the brother and sisters of Mrs. Hampton. The appellees are the beneficiaries under the will. Arthur Childress, who is the chief beneficiary under the will, is accused by the appellants of exercising undue influence over Mrs. Hampton in that he is a young man 29 years of age and that at the time of her death and for some time prior thereto was alleged to have been living with her in an illicit relationship.

This case was here on a prior appeal. See Hall, et al, v. Childress, et al, Ky., 392 S.W.2d 450. Upon the first appeal we remanded the case for retrial having determined that there was sufficient probative evidence in the record to require submission to a jury. It was retried pursuant to our opinion and submitted to a jury. The jury found against appellants determining the will to be the valid will of the testatrix.

Appellants now contend that the court should have directed a verdict for them because the will shows upon its face that it was executed on Sunday in violation of KRS 436.160(1), the Sunday closing law; that the will was not witnessed by two credible witnesses; that an admonition given by the judge to the jury concerning certain testimony was really an instruction and should not have been given until the conclusion of all of the evidence; and that the evidence of undue influence was substantial and uncontradicted. We will consider these contentions in their respective order.

In support of their contention that the will is invalid because it was executed on Sunday, appellants cite Hofgesang v. Silver, 232 Ky. 503, 23 S.W.2d 945, 68 A.L.R. 1481, wherein we held that a contract for a real estate commission entered into on Sunday was void. They cite no case holding a will so executed to be invalid. The prevailing view seems to be that Sunday closing laws will not invalidate a will executed on Sunday. See Tucker v. Jollay, 43 Tenn.App. 655, 311 S.W.2d 324 (1957). Also, 83 C.J.S. Sunday § 28; and 57 Am. Jur., Wills, § 232.

It is not difficult to envision a situation wherein it might become absolutely necessary that a will be executed and witnessed on Sunday. For this reason, the better view seems to be that a will so executed is valid.

Appellants next contend the will was not witnessed by two credible witnesses as required by KRS 394.040. This contention is based upon the fact that on the trial of the case there is some conflict in the testimony of the two attesting witnesses concerning the details of what transpired at the time the will was executed. One witness testified that Mrs. Hampton read the will herself and the other that the attorney read the will to Mrs. Hampton. This type of conflicting testimony is a common occurrence in court and tends to prove nothing other than the frailty of human memory. It certainly is not sufficient to show that one or both witnesses are not credible and as far as we know has never been so held by any court. Appellants cite no authority for this proposition.

Appellants next contend that certain admonitions given by the trial court should have been delayed and given in the form of an instruction. This contention arises out of testimony given by appellants' witnesses concerning statements made by the testatrix during her life time. During the testimony of appellant at the request of appellees the court admonished the jury that the statements were not competent as direct substantive evidence of undue influence but were only admissible to show the mental condition of the testatrix at the time they were so made. It has been firmly established that statements by a testator of this character are not competent as substantive proof in proceedings of this nature but are admissible to show the testator’s mental condition. See Golladay v. Golladay, Ky., 287 S.W.2d 904; McComas v. Hull, 284 Ky. 654, 145 S.W.2d 841; 53 Am. Jur., Trials, § 141 and 94 C.J.S Wills § 247. This was an admonition given by the judge concerning testimony and was not what is commonly referred to as an instruction which is required to be given at the conclusion of all of the evidence. The admonition should be given at the time the testimony is proffered. If the court waits until all testimony is in then most surely the effect of the admonition would be greatly impaired. We find no error in this respect.

Appellants next contend that the proof of undue influence was uncontradict-ed and because of this they were entitled to a directed verdict. Their evidence was calculated to show that appellee, Arthur Lee Childress, was a paramour of testatrix; that he completely dominated her life; that he threatened her and other members of her family; that he denied other members of her family access to her by intercepting mail and phone calls and by refusing permission to visit her. Appellee’s testimony presents an entirely different picture in that he denies use of force but pictures the relationship as being one of mutual trust, respect and enjoyment. In substance, his evidence refutes that presented by appellants. This was fairly presented to the jury on proper instructions and they found for ap-pellee. Our examination of the record convinces us no error was committed that would justify disturbing this finding.

The judgment is affirmed.

All concur.


author: ONION, Judge.

text:
    Earthel B. HILL, Appellant, v. The STATE of Texas, Appellee.
    No. 40745.
    Court of Criminal Appeals of Texas.
    Nov. 8, 1967.

      D. C. Gandy, Fort Worth, Court Appointed on Appeal Only, for appellant.
    Frank Coffey, Dist. Atty., R. J. Adcock and Gordon Gray, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is Burglary; the punishment, seven (7) years confinement in the Texas Department of Corrections.

Appellant initially challenges the sufficiency of the evidence to sustain his conviction as a principal.

On the evening of August 15, 1966, Officers Means and Badalmenti, two Fort Worth City policemen, in response to an anonymous telephone call, went at approximately 9:45 p. m. to 3016 East 4th Street in Fort Worth, the home office building of the Great Court Heroines of Jericho. Upon arrival, Officer Means went to the west side and Officer Badalmenti went to the east side of the building, each proceeding along the wall to the front or northern part of the establishment. Officer Badalmenti testified that he flashed a light through the doorway leading into one of the rear rooms of the building and saw a figure inside the building run past his beam of light. Badalmenti then yelled that someone was inside, and as he approached the facade of the building he viewed a window with the glass broken out and its screen torn. Shortly thereafter both officers heard noises inside the building, heard glass breaking and then saw appellant “stumbling, crawling, and running out of the bushes” which covered the broken window that Officer Badalmenti had previously observed.

Officer Badalmenti drew his revolver and at the officer’s command the appellant halted 30 or 40 feet from the bushes from which he had emerged. The appellant appeared to be nervous and excited and kept hollering “don’t shoot, don’t shoot.” ■ 'Upon being handcuffed the appellant, responding to the officers’ questions, denied having a weapon and related that “just one” more man was in the building. The estimated time lapse between the detection of noises in the building by the officers and appellant’s apprehension was approximately one minute. His statements to t'he officers followed his apprehension by 20 or 30 seconds. At the time of his arrest appellant was wearing a black leather glove on his left hand; his right hand was bare.

Officer Johnson, who arrived at the scene just as appellant was fleeing from the bushes, took custody of appellant from the other officers and searched him for weapons. He removed two sets of keys from appellant’s rear pocket, and while still at the scene gave the keys “to the lady who manages the lodge there” when she identified them.

The appellant was placed in Officer Johnson’s car and remained there while the officers apprehended Charles McDonald, the man inside the building. After McDonald’s arrest he and the appellant were taken to jail in separate squad cars. A subsequent search of squad car No. 313 in which McDonald had been taken to jail by Officers Means and Badalmenti revealed the right-hand mate to the left-hand black glove found on the appellant. The glove had been stuffed behind the front seat where McDonald had been sitting in squad car No. 313. Both gloves were admitted into evidence.

Mrs. Esther Moore, Grand Secretary of the lodge and Office Manager, testified that she had the care, custody and control of the building in question on August IS, 1966; that she had locked and secured the building when she left that afternoon at approximately 4 p. m.; that she had received a call at 9:30 or 10 p. m. that evening and went immediately to the building.

Upon her arrival at the scene she found police officers present and she opened the front door. It appears that the doors to the building were “jimmy-proof” and were all still locked. Mrs. Moore observed that the window previously described, as well as a smaller window in the kitchen, was broken. She found that the file cabinets had been ransacked with papers scattered on the floor, the kitchen oven door was open and oven racks were on the floor, and keys from prior locks on the building which she had seen in a top desk drawer the day before were missing. She related that this was not the condition in which she had left the building, and that she had not given the appellant or any other person permission to break and enter the premises or take property therefrom.

She related that missing keys were returned to her at the scene that night by one of the police officers after she had identified them.

The appellant did not testify or offer any evidence on his behalf.

The court charged the jury on the law of principals and circumstantial evidence and authorized the conviction of appellant if the jury found him guilty of the burglary charged “acting either alone or as a principal.”

The evidence clearly reflects that a burglary was committed, which fact appellant concedes. This evidence when considered together with (1) the admission of appellant showing in effect his knowledge of a burglary in progress, (2) his flight from the scene, and (3) all the other circumstances including the discovery of the keys from the buildings on appellant’s person, as well as the matching gloves, is sufficient to support appellant’s conviction. See Middleton v. State, 86 Tex.Cr.R. 307, 217 S.W. 1046.

In view of the evidence discussed above, we find no merit in appellant’s claim that the court erred in charging on the law of principals over objection, and in overruling the motion for instructed verdict on the ground that there was no evidence of probative nature to connect the appellant with the crime charged.

In his next ground of error appellant contends that the trial court erred in admitting over objection testimony by Officer Means as to an oral statement made by appellant while he was under arrest and without his having been given the statutory warning.

Immediately after appellant’s apprehension, Officer Means inquired how many more people were in the building and appellant answered, “Just one.” This is the statement complained of.

It is clear from the circumstances described above and appellant’s nervous and excited condition at the time that such statement was admissible as part of the res ges-tae.

In Heath v. State, Tex.Cr.App., 375 S.W.2d 909, this Court said:

“Statements of the appellant though in the nature of a confession, which are part of the res gestae are admissible though he be under arrest when the statements are made.”

Further, “[t]he fact that a statement or declaration is made in reply to a nonleading question does not render it inadmissible under the [res gestae] rule.” 24 Tex.Jur.2d, Evidence, Sec. 581, p. 104. See also Morris v. State, 157 Tex.Cr.R. 14, 246 S.W.2d 184.

Only recently in Ramos v. State, 419 S.W.2d 359 (Oct. 18, 1967) we discussed the “verbal act” doctrine, sometimes referred to as the so-called res gestae rule. There we pointed out that when the utterance of certain words constitutes or is part of the details of an act, occurrence or transaction which in itself is relevant and provable, the utterance may he proved as a verbal act, just as may be a visual observation of an event. This is not hearsay evidence; it is not admitted for the purpose of proving the truth of what was said, but for the purpose of describing the relevant details of what took place. Wigmore on Evidence, Vol. VI, Sec. 1776, p. 197. See also Preston v. Commonwealth of Kentucky, Ky., 406 S.W.2d 398.

It appears that testimony offered by the State as to the acts and conduct and declaration of appellant was not admitted for purpose of proving the truth of what was said, but for the purpose of describing the relevant details of what took place at the time appellant was apprehended when fleeing from the scene.

In his ground of error appellant does not refer to which statutory warning he claims he was not given. We, however, have rejected the contention that Article 15.17, Vernon’s Ann.C.C.P. is applicable to res gestae statements. See Ramos v. State, supra.

Further, we do not interpret the rule laid down in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, as excluding res gestae statements such as the one made under the circumstance here described.

Appellant still further contends that the trial court erred in overruling his motion for mistrial made at the conclusion of the jury argument. The basis of such motion was that State’s counsel had in his argument misstated some of the facts of the case and his objection thereto had been overruled.

The transcription of the court reporter’s notes of the jury argument is not before this Court, nor is any error presented by formal bill of exception. Article 40.09, Sec. 6, V.A.C.C.P. The record does not reflect that appellant requested the court reporter to take the jury argument as permitted by Article 40.09, Sec. 4, V.A.C.C.P. This ground of error is not before this Court for review. Havel v. State, 172 Tex.Cr.R. 584, 360 S.W.2d 878; Wright v. State, 266 S.W. 783; Davis v. State, Tex.Cr.App., 400 S.W.2d 568.

In his last ground of error appellant complains of the introduction, over objection, of a crowbar found on the burglarized premises.

The record reflects that following the arrest of the appellant and the other person found inside the building, an examination of the premises revealed a crowbar in a hallway which had not been there when the premises were locked and which did not belong to the owners of the building.

It seems to be appellant’s position that the State was required to show connection between the crowbar and himself before it could become admissible. We cannot agree. No error is shown. See Rice v. State, 129 Tex.Cr.R. 52, 83 S.W.2d 964.

The judgment is affirmed.


author: DICE, Judge.

text:
    Hubert WRIGHT, Appellant, v. The STATE of Texas, Appellee.
    No. 40725.
    Court of Criminal Appeals of Texas.
    Nov. 8, 1967.

      Norman Kinne, Dallas, for appellant.
    Henry Wade, Dist. Atty., Al Walvoord, John Stauffer, Kerry P. FitzGerald and William Mason, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is for the unlawful possession of marihuana; the punishment, twenty-five years.

The facts necessary to a disposition of appellant’s three grounds of error will be stated.

Officer E. S. Harris, of the city of Dallas police department, testified that on the night in question, while he was on patrol, an informer who had proven to be reliable motioned him to the curb and told him that a man, whom he described, was in a certain cafe seated at a table with a girl the officer knew and that the man had in his possession some marihuana. At such time, the informer gave the officer a homemade cigarette and stated that the man inside the cafe “has some of this grass.”

Thereupon, the officer went to the cafe, where he saw the appellant sitting at a table with the girl. At such time, appellant was “slouched over” in a chair and “slumped over a can of beer.” Officer Harris then walked to the table and told appellant to stand up. When appellant stood up “he appeared to be drunk and had a smell of alcohol or alcoholic beverage on his breath, and his clothes were disarranged * * The officer testified that he asked appellant to go outside and as they walked out he definitely decided that he was drunk. He then placed appellant under arrest for being drunk and disorderly in a public place.

Following the arrest, the officer proceeded to search appellant and in the search found in his right front pocket a Winston cigarette package containing thirteen homemade cigarettes.

Officer Harris testified that he took appellant to the city jail and charged him with being drunk and disorderly in a public place. He stated that he then placed the package and the cigarettes in an envelope and, after sealing it, dropped it in the locked box at the crime scene search section at the city hall.

It was shown by the evidence that the envelope and contents were received by Lieutenant Floyd Alexander at the police city county criminal investigation laboratory at Parkland Hospital on August IS, 1966. After opening the envelope and listing the contents, Lieutenant Alexander delivered the envelope and cigarettes on the same day to Chemist Louie Anderson, the spectro-scopist at the laboratory, for examination. Chemist Anderson took two of the cigarettes from the envelope, opened them up, and transferred some of the material to test tubes for a subsequent Duquenois test. Other portions of the material were transferred to microscopic slides for subsequent observation of the material and evaluation of CO2 tests by Dr. Morton Mason, director of the laboratory. The test tubes and slides were kept in the laboratory until September 9, when Anderson took them to Dr. Mason for analysis. On such date, Anderson performed a Duquenois test in the presence of Dr. Mason, who then made a microscopic analysis. The test and analysis showed that the vegetable material in the cigarettes was marihuana, a narcotic drug.

By his first ground of error, appellant insists that his arrest and search were illegal and that the fruits thereof should not have been admitted in evidence.

We overrule the contention, as the evidence is sufficient to show' that appellant’s arrest, without a warrant, by the officer was for being drunk in a public place. Such an arrest and incident search were lawful. Rent v. State, 160 Tex.Cr.R. 326, 268 S.W.2d 674, and Johnson v. State, Tex.Cr.App., 397 S.W.2d 441.

In his ground of error #2, appellant insists that state’s exhibits 1, 2, 3, 4, and 5 should not have been admitted in evidence, over his objection, because the state failed to prove a sufficient chain of custody of the exhibits from the time of his arrest to the time of trial.

The record reflects that only state’s exhibits 2, 3, 4, and 5 were admitted in evidence before the jury. Exhibits 2, 3, and 4 consisted of the package of cigarettes allegedly taken from appellant at the time of his arrest, including the two cigarettes examined in the laboratory. Exhibit 5 was the envelope in which Officer Harris first placed the cigarettes. In his brief, appellant conceded that a proper chain of custody was shown from Officer Harris to the time the exhibits were delivered to Chemist Anderson but insists that the chain of custody was broken while the exhibits were in the custody of Anderson.

It is appellant’s contention that the chain of custody was broken because the exhibits were shown to have been in the chemical laboratory for some three weeks before being taken to Dr. Mason, during a part of which time the exhibits were lying on top of the chemist’s desk and the slides and test tubes were on top of a spectograph, and people were free to come and go in the laboratory.

We find no merit in the contention, as Chemist Anderson swore that the exhibits were in his possession during such time. There was no showing that the exhibits had been tampered with or changed in any manner. The fact that the exhibits were, during a part of the time, on Anderson’s desk and the test tubes and slides on top of the spectograph in the laboratory did not render them inadmissible. Appellant’s objection for such reason went to the weight rather than the admissibility of the evidence. The exhibits were sufficiently identified at the trial by the witnesses. The ground of error is overruled.

In his last ground of error, appellant insists that the court committed reversible error in failing to require disclosure of the name of the confidential informant in the case. Reliance is had upon the opinion by the Supreme Court of the United States in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639, in support of the contention.

Recently, this court, in Acosta v. State, Tex.Cr.App., 403 S.W.2d 434, pointed out that under the opinion in the Roviaro case the name of the informer must be disclosed only in those cases where the informer ‘had taken a material part in bringing about the possession of certain drugs by the accused, had been present with the accused at the occurrence of the alleged crime, and might he a material witness as to whether the accused knowingly’ committed the act.” See, also, Bosley v. State, Tex.Cr.App., 414 S.W.2d 468.

Under such rule, the court did not err in refusing to require disclosure of the name of the informer, as there is no proof that the informer was responsible in any manner for appellant’s possession of the marihuana or took a material part in his possession of the same. The ground of error is overruled.

The judgment is affirmed.


author: MORRISON, Judge. DICE, Judge.

text:
    Shelby Camp EAST, Appellant, v. The STATE of Texas, Appellee.
    No. 40480.
    Court of Criminal Appeals of Texas.
    June 28, 1967.
    Rehearing Denied Oct. 4, 1967.
    Second Rehearing Denied Nov. 22, 1967.

      Albert Armendariz, Jesus B. Ochoa, Jr., El Paso, for appellant.
    Barton Boling, Dist. Atty., El Paso, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is murder without malice; the punishment, five years.

Appellant’s first ground of error is the exclusion by the court of certain testimony from Officer Alvarez. From counsel’s statement to the court it appears that such was an oral declaration made by appellant thirty-five minutes after the homicide and while he was in custody. We are not called upon to pass upon the question of whether the statement was a part of res ges-tae, because nowhere in this record do we find what the witness would have testified to had he been permitted to testify. Counsel offered certain numbered pages from what was purported to be a statement of facts on a former trial, but the same were not made a part of this record on this appeal. Vistal v. State, Tex.Cr.App., 402 S.W.2d 195, and Johnson v. State, Tex.Cr.App., 379 S.W.2d 329, are authority for the rule that a bill of exception to the court’s action in sustaining the State’s objection to questions propounded to a witness without a showing of what the answer of the witness would have been, presents nothing for review.

Appellant’s next ground of error relates to the admission of the testimony of Officer Althoff concerning a test conducted by him and his partner at appellant’s home on the night following the homicide relative to the visibility and ability to recognize a person in an automobile where deceased had been found on the night preceding. Appellant clearly waived any objection he may have had to Officer Althoff’s testimony when he permitted Officer Lattimer (Al-thoff’s partner) to testify as to the same test and results without objection. Autry v. State, Tex.Cr.App., 264 S.W.2d 735, is authority for the rule that the admission of improper evidence is not error if the same facts are proven by other testimony not objected to.

Appellant’s third ground of error is-that the Court erred in failing to grant his-motion for instructed verdict because the State had introduced what he contends was-an exculpatory statement and had not discharged its burden of disproving the same. The statement in question was elicited without objection from Officer Fisher who arrived upon the scene and who went to the assistance of deceased while his partner went into appellant’s house. He stated that he overheard appellant yelling in his house as follows: “He yelled something about he shot his wife; he thought she was stealing the car.” We are met at the outset with a determination of whether such statement was exculpatory. This Court has held that a statement is not exculpatory unless it exculpates. McGowan v. State, 159 Tex.Cr.R. 10, 259 S.W.2d 218, and Perez v. State, 160 Tex.Cr.R. 376, 271 S.W.2d 281. A literal interpretation of the words quoted above would clearly be that appellant knew that it was his wife and shot at her to prevent her from “stealing” the automobile. This would not be exculpatory.

While it is true that appellant offered in evidence the testimony of Edward Putty presumably given at a former trial where he testified that appellant’s explanation was “He said that he thought she was a car thief”, this Court has uniformly held that where the accused offers the statement, the State is under no obligation to disprove the same. Johnson v. State, 167 Tex.Cr.R. 162, 319 S.W.2d 397, and Marion v. State, Tex.Cr.App., 387 S.W.2d 56.

Appellant’s ground of error #4 relates to the court’s order refusing him permission to file additional record or transcript. Notice of appeal was given on May 27, 1966. The record before us contained no written designation of the matter to be included in the record as is required by Article 40.09, Sec. 2, Vernon’s Ann.C.C.P. We do find, however, that on December 14, 1966, counsel for the State and appellant approved “the foregoing 466 pages” as “the complete record in this cause.” Such record was approved by the court on December 16, 1966.

The record contains no copy of a motion which formed the basis of the court’s order entered February 6, 1967, but the order itself refers to appellant’s motion for extension of time to file brief and motion for permission to file additional transcript. Such order granted the first motion and denied the second.

Article 40.09, Sec. 2, provides:

“Each party may file with the clerk a written designation specifying matter for inclusion in the record. The failure of the clerk to include designated matter will not be ground for complaint on appeal if the designation specifying such matter be not filed with the clerk within sixty days after notice of appeal is given.”

Since counsel filed no designation of the matters he desired to be included within the record and since he approved the 466 page record on appeal on December 14, 1966, the court did not err in refusing him permission to file additional record thereafter. Conerly v. State, Tex.Cr.App., 412 S.W.2d 909.

Finding no reversible error, the judgment is affirmed.

OPINION

ON APPELLANT’S MOTION FOR REHEARING

DICE, Judge.

Appellant insists that we erred in our original opinion in refusing to consider his ground of error # IV, in which he complained of the court’s refusal to grant a new trial because of alleged jury misconduct.

He concedes that the records of the proceedings on the hearing of the motion were not included in the record on appeal, and requests this court to issue its writ of certio-rari directing the trial court to complete the record on appeal by certifying such proceedings to this court.

In our original opinion we upheld the court’s action in refusing appellant permission to file the additional record, because no written designation of the matter to be included therein had been made by appellant, as required by Art. 40.09, subd. 2, supra, and the record on file had been approved by him.

Under such facts we will not direct the trial court, by writ of certiorari, to do that which we correctly held on original submission he did not err in refusing to do.

Our conclusion in Clewis v. State, 415 S.W.2d 654, cited by appellant, to accept the belated entry and filing of a trial court’s findings in passing upon the admission of a written confession under the decision in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, is not here applicable.

Remaining convinced that a correct disposition was made of the case on original submission, the motion for rehearing is overruled.


author: MORRISON, Judge.

text:
    James Elgin McLELLAND, Appellant, v. The STATE of Texas, Appellee.
    No. 40765.
    Court of Criminal Appeals of Texas.
    Nov. 8, 1967.
    Andrew J. Shuval, Hereford, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is driving while intoxicated ; the punishment, 30 days in jail and a fine of $50.00.

This is a direct appeal from the order of the Court finding appellant guilty stating that no final judgment would be rendered thereon and that appellant would be placed on probation.

Appellant’s sole ground of error is that the court erred in overruling his plea of former jeopardy. Prior to pleading to the information, appellant timely filed his plea of former jeopardy and made proof thereon. He established that at a former trial on the same information the following had occurred:

“(Appellant’s attorney questioning a state’s witness) ‘Today you testified Mr. McLelland had the smell of alcoholic beverage about him. Last time I think you testified — ’
(The Judge) : ‘Mr. Miller (the County Attorney), aren’t you going to object?’
Mr. Miller: ‘If you want to introduce this, that’s all right, but you should make some kind of introduction.’
The Court: ‘This Court will throw this case out for re-trial. This is a mistrial. The jury is dismissed.’
Appellant’s counsel: ‘Object.’
The Court: ‘You may object, but you are overruled. This case is set for retrial on October 18.’ ”

Clearly, the appellant has twice been placed in jeopardy in violation of the Constitution. Article I, Section XIV, Constitution of Texas, Vernon’s Ann.St.; Article 1.10, Vernon’s Ann.C.C.P. Wordward v. State, 42 Tex.Cr.R. 188, 58 S.W. 135, 141. The trial court abused his discretion in not allowing the case to proceed to judgment. Grigsby v. State, 158 Tex.Cr.R. 484, 257 S.W.2d 110, and cases there cited, and Rameriz v. State, 171 Tex.Cr.R. 507, 352 S.W.2d 131.

The judgment is reversed, and the prosecution is ordered dismissed.


text:
    Nathanial CARTER, Appellant, v. The STATE of Texas, Appellee.
    No. 40595.
    Court of Criminal Appeals of Texas.
    Oct. 4, 1967.
    Rehearing Denied Nov. 22, 1967.
    Don M. Wilson, Dallas, (on appeal), for appellant.
    Henry Wade, Dist. Atty., Don Koons, Charles Caperton and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is assault with intent to murder; the punishment, seventeen and one-half years.

Only two grounds of error are presented in appellant’s brief filed in the trial court.

During appellant’s examination of the officer whom he had called as a witness and by whose testimony he was attempting to locate for the jury’s view certain points on the courtroom wall which corresponded to the height and location of bullet holes which the officer had observed at the scene involved in this prosecution, counsel suggested that the witness, who had no measuring tape with him, might secure one and put a sticker on the wall at that location. The court in an effort to expedite the examination of the witness suggested that the witness might indicate on the wall the location of the bullet hole. Appellant’s counsel, insisting that he wanted it marked semi-permanently, suggested that the witness mark it with pencil on the courtroom wall, whereupon the court admonished either counsel or the witness in these words, “No you won’t mark it with a pencil unless you want to go to jail.” At this juncture counsel made a further suggestion, and the court responded with the following remark, “Let’s quit killing time and get along.” While we do not commend the trial court for his display of' impatience, we do observe that since appellant called the witness, he should have presented his testimony in a manner that would not deface the courtroom wall in violation of Article 859, Vernon’s Ann.P.C. We hold that reversible error is not reflected by the comments of the court set forth above.

Appellant’s next ground of error also relates to proof of the location of bullet holes in the wall. A picture of the room was shown to appellant during the course of his cross examination, and he was questioned about bullet holes in the wall other than those which were made on the day in question. At this juncture appellant was asked, “All right, as a matter of fact your wife shot you just the weekend before, hadn’t she?” Appellant’s general objection was overruled, and thereafter appellant permitted further cross examination on the same point without any obj ection whatsoever. We have concluded that by not preserving his objection, appellant must be held to have waived any error he may have had. Such a disposition of the question eliminates the necessity of passing upon appellant’s contention, not supported by authority, that such question constituted reversible error.

Finding no reversible error, the judgment is affirmed.


author: LANGDON, Associate Justice.

text:
    Luther T. McCLUNG et ux., Appellants, v. C. A. LAWRENCE et ux., Appellees.
    No. 16850.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 13, 1967.
    Rehearing Denied Nov. 10, 1967.

      Turner & Seaberry, and Virgil T. Sea-berry, Jr., Eastland, for appellants.
    Sewell & Forbis, and James E. Forbis, Decatur, for appellees.
   OPINION

LANGDON, Associate Justice.

Summary judgment. The plaintiffs, appellants, filed suit for reformation and/or construction of a royalty reservation in a deed which they as grantors executed and delivered to defendants, appellees, on May 14, 1947. The deed was recorded May 16, 1947. It covered 17 separate tracts, each described by metes and bounds, totalling approximately 1800 acres of land. It is undisputed that mineral and royalty interest in some of the tracts was outstanding and was not owned by the plaintiffs at the time of the conveyance to defendants. The parties will be designated as in the trial court.

The deed contains a general warranty clause preceded by the following reservation : “ * * * The grantors hereby reserving unto themselves one fourth of all of the oil, gas and/or minerals in on or upon the above described land; however the grantees herein their heirs and assigns are hereby empowered and authorized to lease said land for oil gas or other minerals without the joinder of the grantors herein in making any such lease or leases; and it is expressly stipulated that said grantors their heirs or assigns shall not participate in any bonus or delay rentals paid grantees under any such lease or leases upon the leasing of said land the interest of the said grantors their heirs and assigns shall be and become a ⅜2 (one thirty second) royalty interest under such leases it being the intention hereby to reserve and retain in said grantors a non participating ⅜2 royalty interest in and to the oil gas or other minerals in on or under the land hereby conveyed.” A reservation clause identical to the one above was contained in the consideration clause of the deed.

The plaintiffs’ suit seeks to have the reservation in the deed reformed or else to be construed as reserving, in addition to outstanding minerals and royalties, a full ⅛2 non-participating royalty in all of the land involved in the seventeen separate tracts of land, each of which is described by metes and bounds.

Defendants filed a general denial and plead limitation and laches. Both plaintiffs and defendants filed motions for summary judgment. By judgment dated January 20, 1967, the court sustained the motion of the defendants and denied that of the plaintiffs.

We affirm.

In suits for reformation the grantor is charged with knowledge of the contents of his deed from the date of its execution, and limitation begins to run against him from such date. Kahanek v. Kahanek, 192 S.W.2d 174 (Galveston, Tex.Civ.App., 1946, no writ hist.); Barclay v. Falvey, 100 S.W.2d 791 (Beaumont, Tex.Civ.App., 1936, ref.); Gulf Production Co. v. Palmer, 230 S.W. 1017 (Beaumont, Tex.Civ.App., 1921, ref.); Kennedy v. Brown, 113 S.W.2d 1018 (Amarillo, Tex.Civ.App., 1938, dism.); 17 Texas Law Review, p. 385.

In the case at bar the record discloses that after the parties had reached an agreement concerning the property in question the plaintiffs, grantors in the deed, consulted attorneys who prepared the deed. Presumably the deed was prepared solely upon the basis of information furnished by the plaintiffs as the defendants were not present. The deed was executed by the plaintiffs on May 14, 1947 and delivered to the defendants. It was recorded May 16, 1947.

The record does not disclose the date on which plaintiffs filed suit, however, one of the briefs states it was filed on June 20, 1963 and the date was not questioned. The record reflects that depositions were taken on June 5, 1964. Thus, the deed in question was executed, delivered and recorded for a period in excess of IS or 16 years prior to the institution of the suit.

The plaintiffs had ample opportunity to read and study the deed and to discuss its provisions with the attorneys they engaged to prepare it prior to the time it was executed and delivered by them. Thereafter, the deed was on record and available to them for examination and study at all times. There was no concealment nor the exercise of fraud in preventing discovery by the plaintiffs of the alleged mistake, if any, in the deed. In the language of Kahanek v. Kahanek, 192 S.W.2d 174, p. 176, supra, the appellants were “not justified in sitting idly by for a period of more than 11 years and making no effort to discover the mistake, * *

The case of Kennedy v. Brown, 113 S.W.2d 1018 (Amarillo, Tex.Civ.App., 1938, Dism.), supra, involved a contract for the sale of land which provided that the deed should reserve certain mineral rights to the grantor and such reservation was omitted from the deed which was prepared by grant- or’s attorney. More than nine years after the deed was executed and delivered suit for reformation was filed, contending, as here, that the omission of the reservation from the deed was due to mutual mistake. The court, in holding that the four year statute of limitation applied, stated, “We perceive no reason why appellee should not have discovered the mistake in time to have had it corrected or brought his suit within the period of the limitation provided by the statute.” To the same effect see Hogan v. Price, 274 S.W.2d 745 (Texarkana, Tex. Civ.App., 1954, writ ref. n. r. e.); City of Goliad v. Weisiger, 4 Tex.Civ.App. 653, 23 S.W. 694 (1893); Dunn v. Taylor, 42 Tex.Civ.App. 241, 94 S.W. 347 (1906); Kuhlman v. Baker, 50 Tex. 630 (1879).

At one point in their brief the plaintiffs concede that the language of the deed could probably be more exact but that it is clear from such language that grantors sought to reserve a ⅜2 (¼ of the ⅛ royalty) non-participating royalty interest in such lands. They make no contention that the provisions of the deed are ambiguous. In our opinion the deed on its face is clear and unambiguous and should be construed in accordance with the rule announced by the Texas Supreme Court in the case of Duhig v. Peavy-Moore Lumber Co., 135 Tex. 503, 144 S.W.2d 878 (1940).

The holdings in Benge v. Scharbauer, 152 Tex. 447, 259 S.W.2d 166 (1953), and McLain v. First Nat. Bank of Fort Worth, 263 S.W.2d 324 (Texarkana, Tex.Civ.App., 1953, ref., n. r. e.), relied upon by plaintiffs, do not in our opinion have any application to the facts involved in this case. In the Benge case, supra, Justice Griffin, at page 168 of 259 S.W.2d, cited the Duhig case, supra, for the proposition that “It is also well settled that where the conveyance represents that the grantor is the owner of a particular interest in property and such interest is conveyed by the deed, the grantor is estopped by his covenant of general warranty to claim that the deed conveyed a less estate than grantor’s ownership.” He then stated, “Under the decision in Duhig v. Peavy-Moore Lumber Co., 135 Tex. 503, 144 S.W.2d 878, the effect of the deed, by reason of the outstanding 14th interest in the minerals and the general warranty, was that the grantee acquired by the deed the surface and a )4ths mineral interest, and the grantors reserved only a ⅛⅛ mineral interest. On account of the outstanding 14th mineral interest in third parties the warranty was breached at the very time the deed was executed and delivered, and a ¼⅛ mineral interest required to remedy the breach was taken from what the grantors undertook to reserve to themselves leaving them only a ⅛⅛ mineral interest.”

All points of error are overruled and the judgment of the trial court is in all things affirmed.


author: NORTHCUTT, Justice.

text:
    DISCOUNT LIQUORS NO. 2, INC., Appellant, v. TEXAS LIQUOR CONTROL BOARD, Appellee.
    No. 7734.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 18, 1967.
    Rehearing Denied Oct. 30, 1967.
    Kolander & Templeton, Amarillo, for appellant.
    Crawford Martin, Atty. Gen., George M. Cowden, A. J. Carubbi, Jr., R. L. Lattimore, Douglas H. Chilton, Asst. Attys. Gen., Austin, A. J. Folley, Folley, Snodgrass, Calhoun & Kolius, Amarillo, for appellee.
   NORTHCUTT, Justice.

For convenience we will adopt the statement and nature of this case as given by appellee. This is an appeal from a summary judgment of the 47th District Court of Potter County, Texas, which denied the motion for summary judgment of the appellant, Discount Liquors No. 2, Inc., and granted that of the appellee, Texas Liquor Control Board. The appellant had theretofore appealed to the district court under the Texas Liquor Control Act (Articles 666-1 and 667-1, Texas Penal Code) complaining of the order of the County Judge of Potter County, Texas, denying its application for a beer retailer’s off-premises license and of the order of the Texas Liquor Control Board denying its application for a package store liquor permit, such application being for permits at 2806 Duniven Circle in the City of Amarillo in Potter County, Texas, being at a location in the City of Amarillo in which the sale of alcoholic beverages is prohibited by a City ordinance, though in what is otherwise “wet” territory. The denial of the permits was in each instance based on the ordinance making the sale of intoxicants unlawful except within the areas of the City where permitted by the ordinance. The appellant attacked the ordinance as being void and unconstitutional for the reasons stated in the appeal to the District Court, among which were that it conflicts with the general provisions of the Texas Liquor Control Act, that it is arbitrary and unreasonable, and that it conflicts with the local option provisions of the Constitution of Texas, being Section 20, Article XVI, and Section 28, Article I, of the Constitution, Vernon’s Ann.St. since the area in which the application is sought has been voted a “wet” area. The District Court overruled the contentions of the appellant, finding from the pleadings and affidavits on file that the ordinance was valid, that the premises sought to be licensed were located in a prohibited area under the ordinance, that there was an absence of any genuine issue of any material fact.

The only reason that appellant’s application was refused was because the sale of alcoholic beverages at the location involved was prohibited by Section 13-3 of the ordinance of the City of Amarillo, Texas. The location involved is in the City of Amarillo and is in a “wet” area. . Amarillo is a home-rule city under the terms of Article 1175, T.R.C.S., which provides, inter alia, that the City has full power to enforce all ordinances necessary to protect health, life and property and to prevent and summarily abate and remove all nuisances and to preserve and enforce the good government, order and security of the City and its inhabitants.

The City Charter provides the City shall have the power “to provide for the establishment of districts and limits, within the said City, where saloons for the sale of spiritous, vinous and malt liquors may be located and maintained; and to prohibit the sale of such liquors or the locations of such saloons without such defined districts or limits.”

The City Charter further provides: “The enumeration of powers made in this Charter shall never be construed to preclude, by implication or otherwise, the City from exercising the powers incident to the judgment of local self-government, nor to do any and all things not inhibited by the Constitution and laws of the State of Texas.”

The City Ordinance 13-3 provides: “It shall be unlawful for any person to make a retail sale, offer for sale at retail, or maintain a place of business designed for the purpose of retail sales of any intoxicating liquors, wines or beer, at any place within the corporate limits of the City, save and except adjacent to and facing the following particularly designated streets and avenues * * The location here involved was prohibited under the terms of such ordinance.

As we review this record, the sole issue here involved is whether the City has the right to regulate the locations where the sale of liquor may be had within its limits. The City of Amarillo is a home-rule city invested with authority under its police powers to regulate the sale of liquor within its limits. The question of whether the ordinance in question is void as being arbitrary and unreasonable is one of law and not a matter for jury determination. City of Waxahachie v. Watkins, 154 Tex. 206, 275 S.W.2d 477 (1955); Eckert v. Jacobs, 142 S.W.2d 374 (Tex.Civ.App.-Austin, 1940, no writ); Covington v. City of Denison, 369 S.W.2d 824 (Tex.Civ.App.-Dallas, 1963, no writ) and the many cases there cited.

It is well established in our jurisprudence that a home-rule city can regulate the sale of alcoholic beverages in its city limits. Louder v. Texas Liquor Control Board, 214 S.W.2d 336 (Tex.Civ.App.-Beaumont, 1948, writ ref’d, n. r. e.); Le Gois v. State, 80 Tex.Cr.R. 356, 190 S.W. 724 (1916); Tritico v. Texas Liquor Control Board, 126 S.W.2d 738 (Tex.Civ.App.-Beaumont, 1939, no writ). See also Terretto v. State, 86 Tex.Cr.R. 188, 215 S.W. 329 (1918) where it is stated.

“When authorized by its charter, a municipal corporation may, by ordinance duly enacted, designate the localities within its corporate limits wherein the sale of intoxicating liquor licensed under the state law may be sold, and making it unlawful to sell elsewhere within the bounds of the city. This has frequently been held a legitimate exercise of municipal authority and one not inhibited by any of the provisions of our Constitution. Ex parte Abrams, 56 Tex.Cr.R. 470, 120 S.W. 883, 18 Ann.Cas. 45; Ex parte King v. State, 52 Tex.Cr.R. 386, 107 S.W. 549; Williams v. State, 52 Tex.Cr.R. 374, 107 S.W. 1121; Garonzik v. State, 50 Tex.Cr.R. 533, 100 S.W. 374; Cohen v. Rice (Civ.App.) 101 S.W. 1052; Andrews v. Beaumont, 51 Tex.Civ.App. 625, 113 S.W. 615.”

The designation of localities where the sale of intoxicating liquor is inhibited is not prohibition but a mere regulation of sale. Garonzik v. State, 50 Tex.Cr.R. 533, 100 S.W. 374 (1906).

There is a great difference in a privilege and a property right. In Jones v. Marsh, 148 Tex. 362, 224 S.W.2d 198 (1949) it is stated:

“The Texas Liquor Control Act was enacted, in the exercise of the police power, for the purpose of regulating and controlling traffic in alcoholic beverages in the State. A license or permit to sell beer or other intoxicating liquor is a privilege and not a property right. The Act expressly so provides, Article 666-13, Annotated Penal Code, and it is so held. State v. De Silva, 105 Tex. 95, 145 S.W. 330; Bradley v. Texas Liquor Control Board, Tex.Civ.App., 108 S.W.2d 300; Louder v. Texas Liquor Control Board, Tex.Civ.App., 214 S.W.2d 336. Since the permit or license is a mere privilege, its issuance, denial and cancellation are properly committed to an administrative body or agency, and, in the interest of efficiency, the fact findings made by the administrative body or agency in the performance of duties of this kind are usually subject to a limited, rather than to a full, judicial review, in Texas a review under the substantial evidence rule. Shupee v. Railroad Commission, 123 Tex. 521, 73 S.W.2d 505; Railroad Commission of Texas v. Metro Bus Lines, Inc., 144 Tex. 420, 424-425, 191 S.W.2d 10, 11; Fire Department of City of Fort Worth v. City of Fort Worth, 147 Tex. 505, 217 S.W.2d 664.”

See Pitre v. Baker, 111 S.W.2d 359 (Tex.Civ.App.-Beaumont, 1937, writ dism’d) where it is stated:

“Prior to the adoption of the home rule amendment, cities and towns looked to the general laws of the state for their power to act, and they had no power not granted them by law. The home rule amendment changed that principle of law, and home rule cities now have all power not denied them by the Constitution and general statutes; the distinction is this— before the adoption of the home rule amendment, cities and towns were compelled to point out the authority to act in the grant given them by the Legislature; since the adoption of the amendment, cities and towns look to the Constitution and general laws, not for specific grants of power, but to ascertain whether or not a specific power is denied them. Le Gois v. State, supra. There is nothing in the articles cited and relied upon by appellant nor in the Liquor Control Act, taking from the city of Port Arthur the power to amend its charter in the respect involved in this litigation. So it is our conclusion that, in adopting this charter amendment, the city did not exceed its constitutional grant of authority.”

The City of Amarillo, a home-rule city, has all power not denied it by the Constitution and general statutes of this State. We hold that the Constitution and general statutes of this State do not deny the City the right to regulate the area of the City in which liquor could be sold.

Judgment of the trial court is affirmed.