author: C. WARREN EATON, Special Commissioner.

text:
    Wilburn CREASON, Appellant, v. Melvin CREASON, Crissie Johnson, and Beatrice Peppers, Appellees.
    Court of Appeals of Kentucky.
    Jan. 22, 1965.
    Rehearing Denied June 25, 1965.

      T. L. Burress, Greensburg, Clyde Williams, Jr., Campbellsville, Hatcher & Lewis, Elizabethtown, for appellant.
    Shuffett & Butler, Robert L. Dowell, Greensburg, for appellees.
   C. WARREN EATON, Special Commissioner.

W. L. DeSpain, who before his death was a resident of Green County, Kentucky, executed simultaneously what purported to be a will and a deed of conveyance on February 27, 1959, when he was 83 years of age. DeSpain had been a widower for several years prior to said date and early in 1958 his daughter, an only child, died, leaving four children who were DeSpain’s grandchildren and only surviving heirs-at-law. By the terms of said will DeSpain bequeathed to each of three of his grandchildren, the appellees, Melvin Creason, Crissie Johnson, and Beatrice Peppers, the sum of $1,000, and he then bequeathed and devised the remainder of his estate to the appellant, Wilburn Creason, the remaining grandchild. By the deed said DeSpain purported to convey to Wilburn Creason a farm of 185 acres, with the provision therein that possession should not pass to Wilburn until the death of the grantor. Both the will and the deed were prepared by an attorney and were signed by the mark of DeSpain in the presence of two witnesses. After execution of the two instruments they were left for safe-keeping by DeSpain in the possession of the Deposit Bank in Greensburg, where they apparently remained until after his death. The four children shall herein be referred to by their first names and the testator by his last name.

DeSpain died on February 17, 1962, at the age of 86. Thereafter someone from the bank apparently presented the will for probate and it was probated and ordered recorded by the Green County Court. On February 27, 1962, the deed was delivered by the bank to Wilburn, who recorded it in the County Court Clerk’s office on May 11, 1962.

Appellees filed their action on April 28, 1962, asking that both the will and the deed be set aside and declared void on the grounds that (1) DeSpain was mentally incapacitated to make the will or deed and (2)he was coerced into signing same by undue influence of appellant.

The case was tried before a jury and after a somewhat hectic and extremely long trial, which appears to have lasted perhaps a week or longer (the exact day-to-day events not being definitely reflected by the transcript or the trial order), the court instructed the jury on the questions of mental capacity and undue influence as to the will only. After lengthy deliberations consuming parts of two days, nine members of the jury returned a verdict which read: “We, the jury, find for the plaintiffs.” As the result of the verdict, a judgment was entered setting aside both the will and the deed.

This appeal was then prosecuted by the appellant, Wilburn Creason, and a reversal sought on the following grounds:

(1) The court erred in overruling the motion of the appellant for a directed verdict at the conclusion of the plaintiff’s case, and again at the conclusion of all of the evidence.

(2) The verdict and judgment are contrary to the law and evidence.

(3) The court erred in the admission and rejection of evidence.

(4) The court erred in refusing to allow attorneys’ fees for the propounder of the will and in refusing to adjudge costs against the estate.

The greater part by far of appellant’s brief and argument is directed to the first two grounds mentioned above, making necessary a review of the evidence. Numerous persons testified and the transcript of the evidence is voluminous; however, it is felt that no useful purpose would be served by detailing the testimony of each witness but that perhaps a summarization of the most pertinent facts should be considered on the question of DeSpain’s state of mind and the undue influence in this case.

Prior to August 1958 it appears from the evidence that DeSpain, living alone on his own farm, had been able to live a reasonably normal existence with the help of his various grandchildren and friends; however, he was suffering from high blood pressure and an advanced stage of arteriosclerosis. Around the first of August, 1958, having been discovered by neighbors lying in his yard in an unconscious state, he was transported to a hospital in Eliza-bethtown, Kentucky. The history indicates that his bed had not been slept in the previous night and that as a result of a fall he had sustained fractured ribs. He was admitted to the hospital on August 2nd and discharged on August 9th, 1958. While there he was first seen by Dr. Louis Aaron and then turned over to Dr. Fred Rainey. Both Doctors Aaron and Rainey diagnosed DeSpain’s condition as arteriosclerosis, high blood pressure, fractured ribs, and uremia (kidney poisoning). It was their testimony that he was senile and considerably confused and was suffering from dementia or a mental state usually produced by the other conditions referred to herein. While Dr. Rainey could not state with absolute certainty whether after August, 1958, DeSpain’s condition would have become better or worse, he was of the opinion that without treatment the condition would probably not have improved and would have been expected to get worse, and that with treatment he might or might not have improved. He was of the opinion that during this period of hospitalization DeSpain would not have had the mental capacity required to make a will, but as he had no record of having seen him thereafter until his subsequent admission in February of 1962, he could not state whether he did or did not have the capacity at a particular time between those dates. He testified that the kidney poisoning could cause confusion, that it was not severe but mild, and that it would not be expected to improve, being of a chronic nature. Dr. Aaron further testified that it was difficult to say whether DeSpain in August of 1958 had a stroke or blood clot, but did state that because of his impaired kidney function there was enough poison in his blood to make him confused. The following statement is from the testimony of Dr. Aaron in answering the question of the possibility that DeSpain might have improved after August 1958: “The chances are a thousand to one that he did not improve mentally. We know that he would have had to have continued to have severe kidney damage.”

The only other medical witness introduced during the trial was Dr. C. E. Crab-tree of Buffalo, Kentucky, who was De-Spain’s regular doctor and saw him many times after his first hospitalization in 1958 up until his final hospitalization in 1962. According to Dr. Crabtree, DeSpain’s chief troubles were hardening of the arteries, high blood pressure, and senility, the latter probably being caused by the other conditions. He saw DeSpain as a patient on February 17, 1959, and again on March 13, 1959, and was treating him all during this period for high blood pressure. This witness at one point in his testimony stated that at a particular moment DeSpain would have sufficient mind to make a will and to will his property according to the way he wanted it to go, yet on cross-examination he stated as a fact that DeSpain did not have sufficient mental capacity to keep from being influenced by people and that he could easily be so influenced. At another point in his testimony he stated that he had doubts that DeSpain could have qualified to sit down and dispose of his property according to a fixed purpose of his own without anyone’s interfering with him. His testimony indicated also that after his hospitalization his physical and mental condition improved for a while but began a gradual downward trend, that by reason of hardening of the arteries his mentality would have been affected, and that the kidney condition could have affected his mentality.

All of the appellees testified as to their association with their grandfather, both before and after August of 1958, their testimony being to the effect that after his hospitalization he seemed to go down physically and mentally and seldom recognized them when they came to visit him. Other witnesses also testified that DeSpain was unable to recognize them and in general the witnesses for appellees testified that he was senile and very childish.

Following his hospitalization in August, 1958, DeSpain was taken to the home of Wilburn Creason where he remained until his final illness in February, 1962. It appears that Wilburn took care of his grandfather all during this period and was his trusted confidant. The proof is conflicting as to whether DeSpain himself was able to carry on his own business without the direction of Wilburn. The evidence shows that Beatrice Peppers borrowed $1500.00 from her grandfather the morning of February 27, 1959, preceding his trip to Greens-burg where he executed the will and deed, and that Melvin Creason borrowed $700.00 from him on February 1, 1962. In both of these cases a note was given signed by the borrowers and their spouses. Each of the appellees, however, states that the loan was made directly with Wilburn, that DeSpain was unable to comprehend the transactions, and that they were not able even to discuss the matter with him. Both testified that Wilburn was the person who handled all of the business arrangements. The evidence discloses that Wilburn made all entries of payments of interest on these and other notes in his own handwriting, no entries being made by DeSpain. Although Wilburn denied that he was the one who took care of the business for DeSpain on these loans and testified that he did what he did only at the direction of DeSpain, the evidence is so conflicting that the jury would have been justified in deciding that DeSpain was mentally and physically unable to take care of the matters and that Wilburn was in complete charge.

The testimony of Wilburn Creason and many witnesses for him was in direct conflict with the testimony of the appellees and their witnesses. Appellant’s evidence was to the effect that DeSpain was in no way mentally impaired subsequent to his hospitalization and during the year 1959; that he in fact did transact his own business according to his own desires and purposes; that he was not senile; that he clearly recognized his property and that it was his intention to reward Wilburn for the latter’s consideration in taking care of him in his old age. The jury could well have believed on the basis of this testimony that DeSpain met all of the requirements that a person must possess in order to be capable of executing a valid will as stated in New v. Creamer, Ky., 275 S.W.2d 918. Wilburn denied the testimony of the appellees to the effect that he, Wilburn, had on occasion commented that DeSpain was not himself or that he did not know what he was doing, or that his mind was bad.

It was not denied, however, that on the day the will and the deed were executed Wilburn drove his grandfather to Greens-burg, that he went with him to the office of the attorney where DeSpain was to take care of his legal affairs, that Wilburn also went with him to secure the witnesses to the instruments and that he accompanied him to the bank where the papers were deposited for safe-keeping. There appears to be some conflict in the testimony of the subscribing witnesses as to whether Wilburn was physically present when the will and deed were signed, but the preponderance of the testimony is that he was not actually in the attorney’s office at this time and the attorney preparing the will so testified. On all other occasions when it was necessary for DeSpain to travel to Greens-burg or to other distant places it was Wilburn who provided the transportation and who assisted him in his travels.

The appellant strongly contends that his successive motions for directed verdict should have been sustained. The basis for this position is his contention that there was a complete failure to establish the mental incapacity of DeSpain on the day the will was executed. In reviewing the evidence in this case it seems apparent that there was a decided conflict in the evidence and that the evidence presented by the appellees concerning the matter of senility and old age, coupled with memory failure, physical deterioration, uremic poisoning, high blood pressure, hardening of the arteries, childishness, statements on the part of Wilburn himself as to these conditions, and the many other incidents which would naturally result from any or several of these conditions, was sufficient to justify a conclusion on the part of the jury that the testator did not have sufficient mentality to execute a will under the requirements heretofore laid down by this court, New v. Creamer, supra. It is evident that where the testimony was conflicting as here the court correctly left to the jury’s determination under an appropriate instruction the question of whether the testator possessed mental capacity sufficient to execute a will. McKinney v. Montgomery, Ky., 248 S.W.2d 719.

The question of undue influence also was submitted to the jury, and appellant likewise complains that there was no proof of any character to support an instruction on the point, though he did not voice any objection at the time the instructions were given as required by the Civil Rules. As stated in McKinney v. Montgomery, supra, “Undue influence is a subtle thing and can rarely be shown by direct proof. In many instances the facts and circumstances leading up to the execution of the desired instrument must be relied upon to establish its existence." See also Martin v. Martin, 286 Ky. 408, 150 S.W.2d 696. On the present appeal there are facts and circumstances introduced in evidence by the appellees which could justify a finding of undue influence, such as the fact that the medical testimony indicated the testator would have been easily influenced, that he was suffering from the physical conditions described herein which would render him susceptible to influence, that Wilburn handled his business for him, that Wilburn had custody and control over him, and that Wilburn did physically convey the testator to the attorney’s office and did assist in securing witnesses to the will and otherwise assisted the testator in his efforts to execute the will and the deed. Considering all of these circumstances gathered from the entire record and the fact that the will itself gave the greater part of testator’s estate, valued at perhaps $20,000 to $30,000, to one of four grandchildren, all of whom apparently were on good terms with and admired by their grandfather, there is ample basis for a finding by the jury of undue influence.

The appellant also complains that the verdict and judgment are contrary to the law and the evidence as respects the deed of conveyance, it being his contention that the court erred in not submitting the question of the validity of the deed along with the question of the validity of the will and in finally adjudging that the deed also was void. Appellees have in their brief pointed out that at the conclusion of the evidence there was some question as to whether there had been a legal delivery of the deed and that a motion for a directed verdict setting aside the deed for the reason of non-delivery was made but the court did not rule on it, preferring to have the jury first determine the validity of the will. There appears in the record no order to the effect that the deed was void because of the failure of delivery, though the facts themselves conclusively show that there was no delivery.

The question of delivery seems immaterial, because the action of the court adjudging the deed invalid must necessarily follow a holding that the will is invalid. Less mental capacity is required for the execution of a will than a deed. Therefore, the will having been set aside the deed also must be set aside. Rounds v. Rounds, 220 Ky. 98, 294 S.W. 785.

It is further pointed up by appellees in their brief that the appellant offered no instructions and did not at the time of the instructions object to those given by the court, so that the failure or the omission of the court to give an instruction on the deed in this case could not be complained of by the appellant or assigned as an error and should not be considered on this appeal. CR 51; Baldwin v. Wiggins, Ky., 289 S.W.2d 729; Mercer v. Commonwealth, Ky., 332 S.W.2d 655.

Appellant also urges in his brief that the verdict and judgment are contrary to the law and the evidence in that the form of the verdict which merely reads, “We, the jury, find for the plaintiffs,” could only apply to the will. We agree with the appellant that the form of the verdict in a will contest should be whether the jury finds the will to be the true last will and testament of the testator, and perhaps it would be advisable for the courts trying such cases to submit to the jury along with the other applicable instructions an interrogatory for them to determine this fact. But in the absence of any proffered instruction on the part of the appellant, we do not find that the verdict as interpreted by the court below was otherwise improper and that the only reasonable interpretation that could have been placed upon it was that the jury found that the will in question was not properly the true last will and testament of the testator under the instructions given by the court. Finding for the plaintiffs in this case could only be a finding against the will.

The third ground for error assigned by appellant is the admission and rejection of evidence. In appellant’s brief the statement is made that the court permitted the plaintiffs to testify as to transactions and conversations with the testator. Appellant states further that “some of this testimony was objected to and some was not.” In reviewing the transcript of the trial it is obvious that very little of it was objected to and in appellant’s brief only two such objections are cited. Moreover, “the rule which excludes a witness from testifying for himself as to a transaction with a deceased person does not apply in the contest of that person’s will where the issue is mental incapacity or undue influence.” Gay v. Gay, 308 Ky. 539, 215 S.W.2d 92, 94. Though the rule is different with respect to setting aside a deed, Gay v. Gay, 308 Ky. 539, 215 S.W.2d 96, 97, the evidence certainly was admissible in this case as bearing on the will, and, as we have said, if the testator did not have testamentary capacity he could not have been competent to execute the deed.

Complaint also is made that the court improperly sustained objections to certain questions propounded to appellant’s witnesses as to their opinions of testator’s mental capacity. An examination of the questions reveals that they were not in proper form and were not propounded in such a way as to give the witness the opportunity to state whether or not the decedent had sufficient mental capacity to know the natural objects of his bounty, the character and value of his estate, and to make a rational distribution of his estate according to a fixed purpose of his own. Watson’s Ex’r. v. Watson, 137 Ky. 25, 121 S.W. 626. But appellant in his brief admits that in other places in the transcript it is shown these witnesses were permitted to testify as to testator’s mental condition and that the court’s ruling “probably was not prejudicial.” We agree that it was not, and that such assignment of error on this appeal is not well taken.

The final ground for reversal goes to the correctness of the refusal by the court below to adjudge the costs and attorney fees of the executor’s attorneys against the estate. Such costs and fees are proper charges against the estate when incurred in good faith for the purpose of upholding a will. The fact that W. L. DeSpain was either mentally incompetent or that the will was caused to be executed by undue influence of the appellant, or both, indicates that appellant acted in bad faith from the beginning in obtaining the execution of the will and deed. Under these circumstances coupled with the fact that appellant was the principal beneficiary, and the only one who stood to gain if the will was upheld, the appellant is not entitled to have the fees and costs charged against the estate and the lower court correctly so held. Harrell v. Westover, Ky., 283 S.W.2d 197; Daly v. Moran, 256 Ky. 280, 75 S.W.2d 1041; Slaughter’s Ex’r v. Caldwell, 216 Ky. 261, 287 S.W. 720.

The panel respectfully recommends that the judgment of the lower court be affirmed.

The opinion is approved and the judgment is affirmed.

      . See Roland v. Eibeck, Ky., 385 S.W.2d 37 (decided December 11, 1964), a strikingly similar case, in which it was pointed out that “when a contest is pitched on both mental incapacity and undue influence, evidence that tends to show both need not be as convincing as would be essential to prove one or the other alone.”


source: Caselaw Access Project

author: WADDILL, Commissioner.

license: Public Domain

text:
    BLAW-KNOX COMPANY and the Travelers Insurance Co., Appellants, v. John E. KNAPP, Workmen’s Compensation Board, and Subsequent Claim Fund, Appellees.
    Court of Appeals of Kentucky.
    June 25, 1965.
    Henry R. Wilhoit, Jr., Wilhoit & Wil-hoit, Grayson, for appellants.
    W. L. Steele, Eldon L. Webb, Ashland, for appellees.
   WADDILL, Commissioner.

This appeal is from a judgment upholding an order of the Kentucky Workmen’s Compensation Board overruling appellants’ motion to reopen and terminate an award granting appellee benefits for total disability as provided by KRS 342.095. For reversal it is contended that (1) the opinion and order of the Board failed to set out findings of fact upon which it relied and, hence, the circuit court erred in failing to remand the case for the entry of appropriate findings and, (2) there was a sufficient showing of change of condition within the meaning of KRS 342.125 to establish that ap-pellee was not totally disabled and there was insufficient evidence to support the Board’s conclusion to the contrary.

We relate the pertinent events giving rise to this controversy. During 1962 ap-pellee, John Knapp, age 37, was employed by appellant, Blaw-Knox Company, as a boilermaker. On June 15, 1962, appellee injured his right knee while performing his employment duties and thereby became incapacitated for work. On June 20, 1962, the parties entered into an agreement as to compensation and filed it with the Board. This agreement was approved by the Board and it provides for appellee to receive compensation benefits so long as he remains totally disabled within the meaning of the Workmen’s Compensation Act.

On June 29, 1962, Dr. W. C. Roland, an orthopedic surgeon, performed an operation upon appellee for the removal of the right medial semi-lunar cartilage. Appellee remained under the care of Dr. Roland until April 1, 1963, at which time Dr. Roland assessed his permanent disability at 20 percent to the “lower extremity” which percentage, he stated, “converts to 8 to 10 percent to the body as a whole.”

Subsequently appellants stopped paying compensation to appellee and on June 4, 1963, they filed a motion under KRS 342.125 seeking to have the Board reopen the case and terminate the award. Following a hearing upon this motion, during which conflicting testimony was introduced concerning the extent and probable duration of appellee’s disability, the Board entered an order overruling appellants’ motion.

We find no merit in the contention that the Board failed to make adequate findings of fact upon which it predicated its order. The Board’s opinion reflects that it carefully considered all aspects of the case and found that appellants “have not met the burden of establishing that plaintiff [appellee] is no longer totally disabled * * This finding is sufficient to satisfy the requirements of KRS 342.275. Wells v. General Electric Company, Ky., 318 S.W.2d 865.

Neither is there any merit in the other contentions raised by appellants including their argument that they established as a matter of law that appellee was no longer totally disabled. While Dr. Roland’s testimony would justify the Board in finding a change of condition it was not required to accept his opinion. Moreover, there was other medical as well as lay testimony that is persuasive of the fact that ap-pellee’s total disability still exists. The substantial conflict in the evidence requires a finding of fact rather than a conclusion of law.

The judgment is affirmed.


text:
    John Wesley COLLINS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 25, 1965.

      James E. Higgins, Jr., Hopkinsville, for appellant.
    Robert Matthews, Atty. Gen., Joseph H. Eckert, Asst. Atty. Gen., Frankfort, for appellee.
   WADDILL, Commissioner.

The appeal is from an order overruling a motion under RCr 11.42 to vacate a judgment pursuant to which appellant is incarcerated in the Eddyville State Penitentiary.

Appellant contends he was denied the effective assistance of counsel in contravention of the 14th Amendment to the Federal Constitution and Section 11 of our State Constitution in that he was brought to trial the same day counsel was appointed to represent him.

Upon the filing of this motion the circuit judge appointed the Honorable James Higgins to represent appellant. A hearing was held in appellant’s presence at which time it was shown that appellant was arrested for armed robbery and waived a preliminary hearing in February 1961, executed bond in March 1961, was indicted by the grand jury September 25, 1961, and was arraigned in circuit court October 10, 1961. On the latter date he informed the circuit judge he was financially unable to employ counsel and the Honorable Louis McHenry was appointed to represent him.

Mr. McHenry testified at the hearing that he interviewed appellant and the prosecuting witness before the trial and appellant did not furnish him with the names of any witnesses to have subpoenaed in his behalf. The prosecuting witness informed Mr. Mc-Henry that appellant had participated in the robbery. Mr. McHenry stated, in effect, that appellant had no ground upon which to seek a continuance. The circuit judge, in overruling the motion to vacate the judgment, found that appellant was well represented by counsel.

The fact that a person is tried and convicted the same day counsel is appointed to represent him does not necessarily constitute a denial of due process. Jones v. Commonwealth, Ky., 388 S.W.2d 601. In view of the fact that appellant’s trial counsel testified that he used his best skill and judgment in defending appellant and since the record before us supports this assertion, we conclude that there is no reasonable basis upon which appellant can justly claim that he was denied a fair trial.

The judgment is affirmed.


author: PALMORE, Judge.

text:
    Dillard KILGORE, Appellant, v. GOOSE CREEK COAL COMPANY, Inc., et al., Appellees.
    Court of Appeals of Kentucky.
    June 25, 1965.

      Ronald W. May, Combs & May, Pike-ville, for appellant.
    Fred G. Francis, Howard, Francis & Howard, Prestonsburg, Stuart Alexander, Louisville, for appellees.
   PALMORE, Judge.

Dillard Kilgore appeals from a judgment sustaining an award of the Workmen’s Compensation Board based on a finding that his permanent partial disability was only 25%, as against his claim of 100%, to the body as a whole.

Adopting the report of Dr. T. Rothrock Miller, to whom it had referred him for examination and report pursuant to KRS 342.121, the board determined that as the result of his compensable injury Kilgore had been totally disabled from August 9, 1962, until February 4, 1963, “and thereafter sustained permanent partial disability of 15 percent to his body as a whole from the effects of said injury and an additional 10 percent to his body as a whole as the result of the arousal into disabling reality, by said injury, of a dormant, non-disabling and pre-existing disease condition.”

The board entertained an application for review of Dr. Rothrock’s report and permitted claimant to take his deposition, following which the objection to the report was overruled. The gist of the objection, and the only contention made on this appeal, is that the doctor’s estimates of disability were based on purely functional impairment rather than the claimant’s capacity to perform the work demanded by his occupation. See Deby Coal Company v. Caldwell, Ky., 383 S.W.2d 905 (1964), and Leep v. Kentucky State Police, Ky., 366 S.W.2d 729, 731 (1963).

It is not entirely clear to us from either the report or the deposition of Dr. Miller whether his estimated percentages of disability were based on Kilgore’s capacity to do the work of a coal miner (his regular occupation) or merely on his general physical impairment. The report itself provides no cue. Salient portions of the deposition are as follows :

Q- “Doctor, I note in your report, particularly in Paragraph (d), page 2, that your estimate of total percentage of permanent disability is 25 per cent to the body as a whole. Now is that a functional impairment or rating of disability based upon rotation of motion, bending and stooping?”
A- “Yes, sir, I think so.”
Q- “Whether or not this man could return to his former work as a coal miner, then, would depend upon many other factors such as work environment like height of the coal, the amount of weights he would have to lift, and factors such as that? Is that not correct?”
A- “Yes, sir.”
Q- “And you apportioned 10 per cent of his disability to that pre-existing condition?”
A- “Yes, sir.”
Q- “And then you felt that the injury of August 9, 1962 caused a disability of some IS per cent to the body as a whole?”
A- “Yes, sir.”
Q- “And that was to do the work which he was doing as a miner?”
A- “Yes, sir.”
Q- “In other words, he is impaired to the extent of 25 per cent to do the type of labor he was doing at the time he was injured, in your best medical judgment?”
A— “From the purely physical point of view, yes.”
Q- “Doctor, in answering Mr. Francis’ statements did you have the information available as to what height of coal this man was working in, what weights he was required to lift, and the general duties of each workday required of him?”
A- “Specifically, no, sir. I am more or less familiar with the general duties of a coal miner.”
Q- “Now the 10 per cent of disability attributed to the probably pre-existing defect, that is also a functional percentage of valuation, is it not?”
A- “Yes, sir.”

Appellant’s brief points out “that the sole function of a medical examiner is to evaluate impairment of bodily function and that it is a legal or administrative task to make an evaluation of occupational disability.” That is true, and in a number of recent cases it has been necessary to reverse the board’s judgments because of an apparent misconception in this respect. Cf. Deby Coal Company v. Caldwell, supra. If the doctor is willing, pursuant to appropriate questioning, to estimate a man’s percentage of incapacity as a coal miner, for example, that is well and good. Certainly it would be helpful. But in the last analysis it is not his decision to make; it is a nondelegable responsibility of the board alone. Whatever may be the degree of physical impairment established by the medical testimony, the board must make its own estimate, from the evidence as a whole, of whether and to what degree that impairment actually disables the claimant from performing the duties of his occupation. Percentage of physical limitation is a medical question; percentage of disability is not.

In this particular case there was testimony by one physician, who examined the claimant only once, in September of 1963, to the effect that he probably never will be able to resume the heavy lifting and bending required of a coal miner. On the other hand, two physicians who had theretofore examined and treated him testified that he was able to go back to work early in 1963. Dr. Miller’s report and the board’s ultimate findings are quite consistent with the conclusions of these two witnesses. Dr. Miller made the further comment, “It was also my impression that many of his complaints were neurotic in nature and I made no attempt to evaluate this aspect.” However, there was no evidence to justify or require a finding of traumatic neurosis or psychosomatic illness resulting from the accident as in the recent case of Holland v. Childers Coal Company, Ky., 384 S.W.2d 293 (1964). Considering all of the evidence, it does not appear to us that the claimant’s 25% physical impairment is necessarily translatable into a greater percentage of occupational disability. Hence the findings of the board, being supported by substantial evidence, cannot be held clearly erroneous.

The judgment is affirmed.

       This may be a stenographic error in which “evaluation” was transcribed as “of valuation.”


author: CULLEN, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. George P. WHIPPLE et al., Appellees.
    Court of Appeals of Kentucky.
    March 19, 1965.
    As Modified on Denial of Rehearing July 2, 1965.
    John B. Breckinridge, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Marshall B. Woodson, Jr., Louisville, for appellant.
    Henry V. B. Denzer, J. W. Hottell, Louisville, for appellees.
   CULLEN, Commissioner.

The Commonwealth of Kentucky, Department of Highways, brought proceedings to condemn for highway purposes all of a lot with a commercial building on it, in Louisville. The jury in circuit court awarded damages of $167,000, and judgment was entered accordingly. The Commonwealth has appealed.

Two valuation witnesses testified for the Commonwealth. They valued the property at $132,875 and $140,000, respectively. Only one such witness testified for the property owners and he placed the value at $191,740, plus $4,800 for an appurtenant easement (the Commonwealth’s witnesses made no mention of the easement). The verdict of $167,000 was broken down, $162,200 for the lot and building and $4,800 for the easement.

The appellant’s principal argument is that the testimony of the landowners’ valuation witness had “an innate lack of verity” and therefore it had no probative value at all. This argument is predicated mainly on the fact that the witness, in using the “income approach” (rent capitalization) to reach his estimate of value, estimated a monthly rental of $1560, whereas at the time of the condemnation the property actually was renting for only $1,200 per month, and the witness did not cite any comparable rental that would support his estimate.

There was evidence that the subject property had brought a rental of $1,500 per month for a period of 18 months which ended a couple of years before the condemnation. This was acceptable evidence that the property had a rent potential higher than the $1,200 per month presently being received under a short-term lease. We cannot say that the estimated rental of $1560 per month used by the landowners’ witness was so outlandish and fantastic as to render his testimony completely valueless. At the most it indicated some extravagance on the part of the witness, which the jury could and did discount. See Commonwealth Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472.

Other evidence in the case furnished a basis of support for the verdict. For example, the Commonwealth’s witnesses, in discussing on cross-examination their application of a valuation approach based on reproduction cost less depreciation, said that they depreciated the building $75,000, which was at twice the normal rate of depreciation. The jury was not required to accept the reasons given by these witnesses for doubling the depreciation rate, and if the jury believed there had been only normal depreciation they could add $37,500 to the witnesses’ estimates of value, which would produce a sum well over the amount of the verdict actually returned.

The appellant maintains that the jury disregarded the evidence and the instructions and based its verdict of $167,000 solely on a blurted-out statement of a witness that the property was insured for $167,000. We think this argument is strictly conjectural. Actually, the verdict for the land and building was $162,200, not $167,000. It is exceedingly doubtful that the jury would value the land and building according to the amount for which the building alone was insured. The figure $167,000 was in evidence as the undepreciated replacement cost of the building, and there is just as much reason to guess that the jury picked that figure from that evidence as from the evidence as to insurance coverage. The most reasonable assumption is that the jury simply split the difference between the value estimates of the Commonwealth’s and landowners’ witnesses.

The appellant complains of errors in the admission of evidence, and of several allegedly prejudicial comments by the trial judge. In our opinion there is nothing of any real substance in the complaints. Some of the evidence complained of properly was admitted; as to other evidence there was no timely objection, or similar evidence previously had been brought out by the appellant. There is no indication of any probability of prejudice. The comments by the trial judge consisted in the main of attempts to ■ keep the trial moving along with reasonable speed, and we find nothing harmful in them.

Question has been raised again whether the Commonwealth is required to pay 10% damages on the amount the circuit court judgment exceeds the county court judgment. We held in Commonwealth, Department of Highways v. Frank Fehr Brewing Co., Ky., 376 S.W.2d 541, that it must. CR 81A is not repugnant to KRS 454.190. The fact the Commonwealth is not required to execute a bond does not exempt it from liability for payment of damages as provided in KRS 21.130.

The judgment is affirmed.


author: DAVIS, Commissioner.

text:
    E. P. SAWYER, County Attorney, Appellant, v. JEFFERSON COUNTY FISCAL COURT et al., Appellees.
    Court of Appeals of Kentucky.
    June 29, 1965.
    Charles Speed Gray, Asst. County Atty., Louisville, for appellant.
    Lucian L. Johnson, Louisville, amicus curiae.
    Franklin P. Hays, Skaggs & Hays, Louisville, for appellees.
   DAVIS, Commissioner.

This is a declaratory judgment action testing the validity of a contract, lease and option entered into by the Fiscal Court of Jefferson County and the Board of Education of Jefferson County. (Hereinafter we shall designate the parties as “County” and “Board.”)

In general terms, the attacked agreement entitles the County to utilize for recreational purposes substantially all of the school buildings and properties now owned by the Board, or which may be acquired by the Board. The contract provides that the County shall pay to the Board an agreed rental of $700,000 for the year beginning July 1, 196S and ending June 30, 1966. In the agreement is the familiar option authorizing the County to renew the lease for a period of one year at the same annual rental, at the end of the first year and at the end of each succeeding year in which the lease would be in effect. The County’s permitted usage of the Board’s facilities for recreational purposes is “ * * * to the extent such use by the County does not in any way conflict with the operation of the school properties by the Board for educational purposes.” The Board covenants to operate and maintain the properties while the agreement is operative and “ * * * to use the revenues received from the annual rental payments made by the County only for the erection of classrooms and/or alteration and/or enlargement of existing facilities to provide additional classrooms and/or for the purpose of retiring, directly or through rental payments, school revenue bonds issued for such purposes * * ” in order to eliminate the problem of “double sessions” and to further the health, safety and welfare of the citizens of Jefferson County.

The chancellor entered judgment sustaining the validity of the agreement, and so declaring the rights of the parties. This appeal challenges the judgment on three fronts: (1) The payment of rent by the County to the Board is an appropriation of funds in contravention of Section 179, Kentucky Constitution; (2) there is no express authority of law for the agreement between the Board and County, hence Section 162 of Kentucky Constitution prohibits the County’s proposed expenditure; (3) the County’s obligation under the agreement creates an invalid debt in light of Section 157 of the Kentucky Constitution.

Since 1944 the County and Board have jointly sponsored the Jefferson County Playground and Recreation Board. The validity of their activities in doing so was established in Dodge v. Jefferson County Board of Education, 298 Ky. 1, 181 S.W.2d 406. The Board notified the County in February, 1965, that the Board’s severely restricted financial situation would preclude the Board’s continued participation in their jointly sponsored recreational program beyond June 30, 1965, terminal date of the current agreement. The agreement now under consideration was evolved as an effort to forestall the abandonment of the County’s large-scale recreational program and as one means of alleviating the Board’s admittedly difficult financial plight.

It is our view that the agreement between the County and Board does not run afoul of Section 179, Kentucky Constitution. The situation at hand differs materially from that presented in Board of Education of City of Corbin v. City of Corbin, 301 Ky. 686, 192 S.W.2d 951. In the Corbin case the city undertook to make an outright gift of $500 per month to the Board of Education as a means of supplementing the salaries of teachers in the schools of Corbin. This court struck down that proposed expenditure as violative of Section 179, Kentucky Constitution, since Corbin was undertaking to donate to a project in which it could not independently engage (public education), and from which it derived no benefit. The same may not be said of the case at bar. The County does have the express right to' participate in a recreational program for its citizens. KRS 97.010 (1). The Board also is empowered to join with the County in furnishing recreational services. KRS 97.010 (2).

By the express terms of KRS 97.010 (1) the County is authorized to lease facilities to be used in recreational activities. We are unable to perceive any basis for holding that the County is forbidden to lease such facilities from the Board, so long as there is a good faith transaction as opposed to a gift disguised as an arm’s length contract. Evidence was heard below from two real estate appraisers who expressed the view that $700,000 is a reasonable rental for the Board’s properties, in light of the high value of the leased facilities. There was no evidence to the contrary.

Section 162 of Kentucky’s Constitution provides:

“No county, city, town or other municipality shall ever be authorized or permitted to pay any claim created against it, under any agreement or contract made without express authority of law, and all such unauthorized agreements or contracts shall be null and void.”

By the terms of KRS 97.050 fiscal courts are authorized to expend public funds for recreational purposes. Even without the just cited statute, we think KRS 97.010(1) clearly imputes the authority to expend public funds for recreational activities. We find no merit in the contention that the proposed agreement contravenes Section 162, Kentucky Constitution.

Neither do we believe that the agreement creates an illegal indebtedness as condemned by Section 157, Kentucky Constitution. As noted, the agreement is limited to an obligation to expend $700,000 for one year only. It does afford an option to the County to renew, year by year, at the same rental, but the County is not legally required to so renew. There is an affirmative showing that the $700,000 rental payment for the first year is well within the income and revenue provided for that period by the County. The course set in Waller v. Georgetown Board of Education, 209 Ky. 726, 273 S.W. 498, and followed in innumerable decisions since, leaves no room for debate on the question at hand.

There lurks in this record an unbriefed matter which we note, but do not adjudicate. It is that portion of the agreement whereby the Board undertakes to earmark the rental payments for capital improvements. Whether this is valid presents questions we are not called upon to decide.

The judgment is affirmed.


author: PER CURIAM.

text:
    W. A. BROWN, Doing Business as Brown Trucking Company, Petitioner, v. Joe F. POFF, Respondent.
    No. A-10693.
    Supreme Court of Texas.
    April 28, 1965.
    Rehearing Denied July 14, 1965.
    H. O. Metcalfe, Marfa, Brown, Day & Crowley, Fort Worth, for petitioner.
    Warren Burnett, Odessa, John Howze, Monahans, for respondent.
   PER CURIAM.

The application for writ of error does not disclose a properly presented error which would justify the reversal of the judgment of the Court of Civil Appeals. Accordingly we deny the application with the notation, “Refused, no reversible error.” This action should not be taken as an approval of the Court of Civil Appeals holding (387 S.W.2d 101) that, when raised by the evidence, the issue of whether or not a plaintiff has sustained an injury is a “defendant’s issue” within the meaning of Rule 279, Texas Rules of Civil Procedure. There is a marked distinction between the term “defendant’s issue” as generally used in connection with Rule 279 and the term “vital defensive issue,” as used in Texas & Pacific Ry. Co. v. Van Zandt, 159 Tex. 178, 317 S.W.2d 528.


author: HAMILTON, Justice.

text:
    Ex parte George Monroe SAVELLE, Jr.
    No. A-10744.
    Supreme Court of Texas.
    June 9, 1965.

      George Monroe Savelle, pro se.
   HAMILTON, Justice.

This is an original habeas corpus proceeding. Pursuant to an action brought by Billie Nell Smith, George Monroe Savelle, Jr., was adjudged on April 8, 1965, by order of the Court of Domestic Relations No. 2 in and for Harris County, Texas, to be in contempt of court for an alleged failure and refusal to make child support payments as ordered by said court in Cause No. 566,-680. Savelle was assessed three days in jail with the provision that he might purge himself of such contempt by paying the sum of $300.00 as arrearage, attorney’s fee and costs of court. The judgment of the court committing Savelle reads in part as follows:

“IT is accordingly so ORDERED, ADJUDGED AND DECREED by the Court that the said George Monroe Savelle, Jr., be and is hereby held guilty of contempt of Court by reason of his failure and refusal to make the payments of child support in defiance of the terms of the decree hereinabove referred to, and his punishment for such contempt is here fixed by assessing against him a fine of $- and committing him to the County Jail of Harris County, Texas for 3 days, and it is further Ordered that the said George Monroe Savelle, Jr., may purge himself of such contempt by paying the sum of $300.00 as child support payments to Bille Nell Savelle, and also by paying all costs incurred herein, and upon such payments said George Monroe Savelle, Jr., shall be released from custody. LET, THEREFORE, commitment issue to the Sheriff of Harris County, Texas, accompanied by a certified copy of this judgment.”

The relator did not purge himself by paying the arrearage and court costs, but he had served the three-day commitment period at the time this court granted his petition for writ of habeas corpus. He is, therefore, under the clear provisions of the judgment of commitment, entitled to be released, and it is so ordered.


author: WALKER, Justice.

text:
    Frances M. TAMBURELLO et al., Petitioner, v. Carl A. WELCH, Respondent.
    No. A-10499.
    Supreme Court of Texas.
    June 2, 1965.
    Rehearing Denied July 7, 1965.

      Talbert, Giessel, Cutherell, Barnett & Stone, Houston, for petitioner Tamburello.
    Robert O. Campbell, Houston, for petitioner Crutchfield.
    Bray & Wallace, Houston, for respondent.
   WALKER, Justice.

This case arose out of a three-car collision. The only question to be decided is whether the trial' court’s refusal to allow each of the defendants six peremptory challenges constitutes reversible error. Judgment was rendered on the verdict in favor of Carl A. Welch, plaintiff, against Clarence E. Crutchfield and Miss Frances M. Tam-burello, defendants, jointly and severally, for $9,258.25. The Court of Civil Appeals affirmed, holding that the error, if any, was harmless. 383 S.W.2d 936.

The accident occurred at the intersection of North Shepherd Drive and 28th Street in the City of Houston. Plaintiff was driving south on Shepherd, which is a through street. Vehicles traveling in either direction on 28th Street are controlled by stop signs at its intersection with Shepherd. Crutchfield had been driving east on 28th Street, but the evidence is conflicting as to whether Miss Tamburello was going west on 28th Street or north on Shepherd just prior to the accident. There was first a collision between the automobiles of the two defendants, and the Tamburello vehicle then swerved into the west traffic lane of Shepherd Drive and ran head-on into the plaintiff’s car.

Plaintiff alleged that each of the defendants was guilty of a number of negligent acts and omissions which were a proximate cause of the collision. Crutchfield answered with a general denial and pleas of contributory negligence, new and independent cause, and unavoidable accident. Miss Tamburello also interposed a general denial and further alleged that the accident was caused solely by the negligence of Crutch-field. Defendants moved that they each be allowed six peremptory challenges. Since neither of them had prayed for affirmative relief against the other, the trial court concluded that there was no conflict of interest justifying additional strikes. The motions were accordingly overruled.

Rule 233, Texas Rules of Civil Procedure, provides that each party to a civil suit tried in district court shall be entitled to six peremptory challenges. In Retail Credit Co. v. Hyman, Tex.Civ.App., 316 S.W.2d 769 (writ ref.), it was pointed out that the “word ‘party’, as used in the rule, does not mean the same thing as the word ‘person’. Hargrave v. Vaughn, 82 Tex. 347, 18 S.W. 695. The mere fact that there may be multiple parties-defendant does not entitle each person to six peremptory challenges. Whether such defendants are parties within the meaning of Rule 233, so as to be entitled to separate peremptory challenges, depends on whether their interests are, at least in part, antagonistic in a matter that the jury is to be concerned with.”

Parties on the same side of the docket may be entitled to separate peremptory challenges even though no affirmative relief is sought by one against the other. The plaintiff here charged each of the defendants with different acts of negligence, and the jury by its answers might have acquitted one defendant of negligence and found that the other was responsible for the collision. Miss Tamburello alleged that the negligence of Crutchfield was the sole cause of the accident, and the defendants also advised the trial court that they were each claiming that the accident was caused solely by the negligence of the other. Their interests were clearly antagonistic on some of the issues submitted to the jury, and it is our opinion that the trial court erred in denying them six peremptory challenges each. See St. Louis, S. F. & T. Ry. Co. v. Rutland, Tex.Com.App., 292 S.W. 182; Kincaid v. Chicago, R. I. & G. Ry. Co., Tex.Civ.App., 119 S.W.2d 1084 (writ dis.); Edwards v. West Texas Hospital, Tex.Civ. App., 107 S.W.2d 729 (writ dis.) ; International & G. N. R. Co. v. Bingham, 40 Tex.Civ.App. 469, 89 S.W. 1113, (no writ).

Whether the error is such as to require a reversal of the trial court’s judgment is a more difficult question. Even before the adoption of the Rules of Civil Procedure, a refusal to allow the proper number of peremptory challenges was regarded as immaterial in the absence of a showing that the party affected was required to accept one or more jurors whom he wished to challenge. See Wolf v. Perryman, 82 Tex. 112, 17 S.W. 772; Snow v. Starr, 75 Tex. 411, 12 S.W. 673. Rules 434 and 503 now provide that no judgment shall be reversed and a new trial ordered for an error of law committed in the course of the trial unless the appellate court is of the opinion that the error was reasonably calculated to and probably did cause the rendition of an improper judgment.

Each of the defendants in the present case exhausted the three peremptory challenges allowed them by the trial court. At the hearing on the motion for a new trial, the attorney for each defendant testified that if given an opportunity to do so he would have struck three jurors who served on the case. They made no attempt, however, to give their reasons for wishing to challenge such jurors, and did not offer any proof indicating that the individuals named by them were biased, prejudiced, or failed to render an impartial verdict. Plaintiff says that the defendants could have stated why they wanted to strike these particular members of the panel, and that it was also incumbent upon them to establish that the six jurors were prejudiced and that their sitting on the case probably caused the rendition of an improper judgment.

The harmless error rule undoubtedly applies where a party is denied the number of peremptory challenges to which he is entitled. As a practical matter, however, the appellant will usually be unable to show that an improper judgment probably resulted from an error of this nature. In that respect the case is somewhat similar to Heflin v. Wilson, Tex.Civ.App., 297 S.W.2d 864 (writ ref.), where the members of the jury panel had been selected by the jury-commission method rather than by use of the jury wheel. After holding that the appellant’s motion to quash the panel should have been sustained, the court said:

“It would be impossible for appellant to demonstrate with any degree of certainty that he in fact suffered injury as a result of the manner in which the jury panel was selected, and he has made no effort to show specific harm or injury, but we think that harm within contemplation of the so-called harmless-error rule and Rule 434, T.R.C.P., must be presumed in the circumstances, if such rule or rules can be said to be applicable to the situation at all. Approval of the judgment would be tantamount to denying appellant his constitutional right of a trial by jury, because trial by a jury that has at least been selected in substantial compliance with law is what is guaranteed him by both the federal and our state constitutions. There was no substantial compliance with the law in this instance.”

The Heflin case may well be distinguishable, as plaintiff insists, on the theory that a right guaranteed by our Constitution and statutes was there involved, while here we are concerned with peremptory challenges authorized by Rule 233. It is no less difficult, however, to satisfy the literal requirements of Rules 434 and 503 in one case than in the other. If defendants must establish that the error in denying them additional challenges probably caused the rendition of an improper judgment, the matter of peremptory challenges will rest almost entirely in the uncontrolled discretion of the trial judge. It is not realistic, moreover, to let affirmance or reversal turn on the attorney’s reasons for wanting to strike a particular member of the panel. The right to eliminate a prospective juror for any reason that seems adequate to counsel is the very essence of the peremptory challenge. Members of the panel who are not prejudiced in a legal sense may be and frequently are challenged because of their background, associations, appearance or demeanor. The decision to strike is, in the last analysis, a matter of personal judgment usually based in large measure upon intangibles not susceptible of precise description and which cannot be fairly appraised by a trial or appellate court. A litigant who is denied the right to challenge on that basis is deprived of a valuable means, guaranteed him by law, of insuring that the controversy is decided by a jury whose members are not predisposed by reason of temperament or prior experience to look with disfavor upon his side of the case.

In Texas Employers’ Ins. Ass’n v. McCaslin, 159 Tex. 273, 317 S.W.2d 916, we observed that an action or occurrence may be so highly prejudiced and inimical to the fairness of a trial that the burden of going forward with proof is met, prima facie at least, by simply showing the improper act and nothing more. It was also pointed out that the burden of the complaining party is met by showing that the trial which resulted in a judgment against him was materially unfair. The opinion includes a quotation from Cloudt v. Hutcherson, Tex.Civ.App., 175 S.W.2d 643 (wr. ref. w. m.), where the court said:

“We cannot believe the Supreme Court [in adopting Rule 327 dealing with jury misconduct] intended to relinquish its power and duty to see that the right of trial by jury remain inviolate and to protect its purity and efficiency. * * * Where it reasonably appears that the trial was materially unfair, the judgment should be reversed.”

We think this is the proper approach to the question of harm in the present case. If a party is improperly denied a single challenge to which he is entitled, the trial may not be so unfair as to warrant a reversal in the absence of some additional showing of prejudice. On the other hand a judgment could not be permitted to stand where one of the litigants has been allowed no peremptory challenges at all. The evidence in this case is sharply conflicting. Crutchfield testified that he stopped before entering the intersection and then attempted to turn north on Shepherd. He claimed that Miss Tamburello was driving west on 28th Street and entered the intersection without stopping. According to her testimony, she was driving north on Shepherd, and Crutchfield negligently entered the intersection directly in her path. The record contains no evidence of any physical facts indicating which of these versions is correct. If each of the defendants had been allowed six peremptory challenges, the jury would have been composed of six persons who served on the jury and six other members of the panel who did not. A jury so constituted might well have exonerated one of the defendants entirely, and it is our opinion that the trial was so materially unfair that the judgment cannot be upheld.

The judgments of the courts below are reversed, and the cause is remanded to the district court for a new trial.


author: SMITH, Justice.

text:
    GAYLORD CONTAINER DIVISION OF CROWN ZELLERBACH CORPORATION, Petitioner, v. H. ROUW COMPANY, Respondent.
    No. A-10583.
    Supreme Court of Texas.
    June 16, 1965.

      Cox & Patterson, McAllen, for petitioner.
    Sid L. Hardin, Edinburg, for respondent.
   SMITH, Justice.

This appeal is from a summary judgment granted by the trial court which has been reversed by the Court of Civil Appeals. 385 S.W.2d 481. We reverse the judgment of the intermediate court and affirm that of the trial court.

The petitioner, hereinafter referred to as Gaylord, filed this suit against the respondent, hereinafter designated as Rouw, to recover the principal sum of $17,138.62, which sum is evidenced by Rouw’s promissory note dated July 24, 1962. The note recites upon its face that it was executed to “replace notes dated 8/20/56, 8/8/56 and 8/8/56” and that the renewal note would be due and payable January 1, 1963. On December 23, 1963, Rouw filed an answer, including a general denial, but did not deny that the note sued upon was executed in renewal of the three notes referred to in the body of the note. Rouw also pleaded a failure of consideration for the execution of the note sued upon. On March 23, 1964, Rouw filed an instrument which, although designated as cross action, does not assert an independent cause of action. The so-called cross action merely pleads in greater detail Rouw’s original plea of failure of consideration. Neither these pleadings, nor Rouw’s reply to Gaylord’s motion for summary judgment and affidavit attached thereto, raise a fact issue to be determined by the court or jury. Unless the evidence raises issues of fact, a summary judgment is proper. See McDonald on Texas Civil Practice, Vol. 4, Sec. 17.26, pp. 1380-1382.

The pleadings and affidavits clearly show that Rouw knew all the facts upon which he now relies to defeat Gaylord’s right of recovery on the note. He had full knowledge of all these facts prior to the execution of the notes in 1956 and 1962.

The pleadings and affidavits reflect that at the time of signing the notes Rouw knew that during the year 1955, Gaylord sold and delivered to him, on open account, merchandise consisting of cardboard' cartons; that these cartons were purchased for use by Rouw in connection with his business as a shipper of perishable vegetables ; that Rouw knew that the cartons delivered were not, for various reasons, suitable for use in the shipment of perishable vegetables; that he, nevertheless, in August 1956, executed and delivered to Gaylord the three promissory notes aggregating the sum of $18,148.62. These notes were executed in payment for the claimed unsuitable cartons which had previously been sold and delivered to Rouw. Subsequent to the execution and delivery of these notes, Rouw made infrequent payments thereon. No payments have been made since the execution and delivery of the note in suit. Gay-lord’s motion for summary judgment was supported by the affidavit of J. A. Bousquet, the General Manager for the Southwest Region of Gaylord. Bousquet states in the affidavit that he was present when the note in suit was signed by Rouw and delivered to Gaylord; that he was constantly familiar with the status of the account and that at no time between the date of purchase of the cartons in 1955 until the execution of the renewal note in July, 1962, did Rouw register any complaint as to the quality of the cartons or the justness of the account. The record contains admissions by Rouw that he executed the three notes in 1956, and the note in suit with full knowledge of “every conceivable fact and every conceivable defense that he might have asserted in resisting payment of said notes.” The record, including Rouw’s affidavit filed in reply to Gaylord’s motion for summary judgment, contains no allegations of fraud or misrepresentations on the part of Gay-lord or his authorized agents. Nothing appears in the record from which a legal inference may he drawn that the execution and delivery of any of the notes was induced by fraud. We conclude that the action of the trial court in entering the summary judgment was proper. Where the record shows, as here, that, except as to the aggregate sum to be recovered on the note, there is no genuine issue as to any material fact, the moving party is entitled to a judgment as a matter of law. Rule 166-A, Sec. (c), Texas Rules of Civil Procedure. See Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952).

We have concluded that Rouw waived his defense of failure of consideration when he executed and delivered the note sued upon. The rule announced in the case of Hunter v. Lanius, 82 Tex. 677, 18 S.W. 201 (1892), and subsequently followed by the Texas courts, is controlling in determining the question of whether or not material issues of fact were raised by the evidence in the present case. In the Hunter case, as in the present, the holder brought suit on a note which he claimed to be valid. This Court held:

“Where one executes an obligation in renewal of a note claimed by the holder to be valid, but known to the maker to be fraudulent or without consideration, the latter will be deemed to have freed the transaction of the fraud, and to have waived the want of consideration, and will not be permitted to plead it. So, a note is supported by a sufficient consideration, if executed to secure the abandonment of a suit brought to enforce a doubtful right, or in compromise of a disputed claim made in good faith, though it ultimately appears that the claim was without merit. Keefe v. Vogle, 36 Iowa, 87; Babcock v. Hawkins, 23 Vt. 561; 1 Daniel, Neg.

Inst. § 205; 1 Add.Cont. § 14.”

Rouw has not pleaded fraud. He waited some seven years after the execution of the three notes in 1956, and more than a year after signing the note here involved in July, 1962, before filing his plea of failure of consideration. The defense of failure of consideration was not available to Rouw.

Rouw relies upon the case of Culver v. Haggard, 270 S.W. 846 (Tex.Com.App.1925), wherein it was held that acts which, although in affirmance of the contract, do not indicate any intention to waive the fraud, cannot be held to operate as a waiver. The case is distinguishable. In that case, Haggard, the maker of the renewal note, through fraud and misrepresentation was induced to sign the note. Additionally, Haggard had no knowledge of the fraud. Hence, the Court correctly held that the renewal of the notes did not constitute a waiver of the defense of fraud. It was only because the renewal itself was procured by fraud that the Court held that Haggard did not waive the fraud.

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

      . Lone Star Life Insurance Co. v. Shield, 228 S.W. 196 (Tex.Com.App.1921); Davis v. Donalson, 91 S.W.2d 763 (Tex.Civ.App.1936, wr. dismissed); Twichell v. Klinke, 272 S.W. 283 (Tex.Civ.App.1925, wr. dismissed); Arkansas Fuel Oil Company v. Underwood, 193 S.W. 2d 276 (Tex.Civ.App.1946, no wr. hist.); Adams v. Overland Automobile Co., 202 S.W. 207 (Tex.Civ.App.1918, no wr. hist.); National Bank of Cleburne v. Carper, 28 Tex.Civ.App. 334, 67 S.W. 188, 1902, no wr. hist.).


author: GREENHILL, Justice.

text:
    The STATE of Texas, Petitioner, v. V. C. BILBO, Respondent.
    No. A-10278.
    Supreme Court of Texas.
    June 16, 1965.
    Rehearing Denied July 28, 1965.

      Waggoner Carr, Atty. Gen., Austin, Sam Kelley, Asst. Atty. Gen., for petitioner.
    Lanham & Hatchell, Austin, for respondent.
   GREENHILL, Justice.

This is a suit for a declaratory judgment to determine what commodities may be transported under the authority granted by a Limited Common Carrier Motor Carrier’s Certificate issued to V. C. Bilbo in 1940 by the Railroad Commission of Texas. The suit was instituted by the State of Texas against Bilbo at the request of the License and Weight Division of the Texas Department of Public Safety.

Bilbo’s certificate, as amended in 1961, gives him the authority “TO TRANSPORT: HEAVY BUILDING MATERIALS, MACHINERY and SUPPLIES between all points in Texas.” The State alleged that Bilbo was carrying commodities not authorized by the certificate, such as cartons of paint, cartons of color cards, cartons of metal spouts, rolls of prepared roofing, rolls of prepared roofing on 2,000-lb. pallets, rolls of building paper, rolls of building paper on 2,000-lb. pallets, bundles of asphalt shingles, bundles of asphalt shingles on 2,000-lb. pallets, rolls of asphalt siding, rolls of asphalt siding on 2,000-lb. pallets, boxes of asbestos siding fixtures, bundles of asbestos shingles, bundles of asbestos shingles on 2,000-lb. pallets, 55-lb. drums of asphalt, cases of liquid asphalt in cans, packages of advertising matter, rolls of waterproof cotton cloth, rolls of waterproof cotton cloth on 2,000-lb. pallets and 20-lb. bags of fiberglass.

The trial court sitting without a jury held that Bilbo had not exceeded his authority. The Court of Civil Appeals held, for reasons which will be discussed herein, that Bilbo lacked authority to transport any of the items mentioned above with the exception of rolls of prepared roofing on 2,000-lb. pallets, rolls of building paper on 2,000-lb. pallets, bundles of asphalt shingles on 2,000-lb. pallets and rolls of asphalt siding on 2,000-lb. pallets. That court also held that incidental supplies or accessories to heavy building materials tendered to the carrier are integral parts of such shipments of heavy building materials. 378 S.W.2d 871 (1964). While we agree with much of the intermediate court’s well-reasoned opinion, we find that we must reverse its holding that Bilbo has authority to transport the above-named commodities on 2,000-lb. pallets.

The Court of Civil Appeals aptly stated the main question here:

“The crux of the controversy seems to center around a device that the manufacturers of building materials have used for the past few years; that is, a ‘palletizing’ or ‘unitizing’ of certain items which individually could be loaded manually but when aggregated or grouped on pallets or boards and strapped together by steel bands become so heavy that mechanical devices such as forklift trucks are necessary for loading and unloading the heavy pallets.” 378 S.W.2d at 874.

First, we hold that the intention of the Railroad Commission as expressed in Bilbo’s certificate is a question of law. In arriving at a construction of the certificate we may take into consideration Bilbo’s application and the order of the Railroad Commission. Alamo Express, Inc. v. Brown Express, 234 S.W.2d 62, 83 (Tex.Civ.App.1950, writ ref., n. r. e.); Railroad Comm, of Texas v. Trinity Houston Truck Line, 86 S.W.2d 817, 818 (Tex.Civ.App.1935, no writ) ; see Jesse Coonrod Johnson, 61 M.C.C. 783, 785-787 (1953). By examining the more specific language of the application and the order, we are afforded a better understanding of the general terms used in the certificate and gain some insight into the general scheme of regulation envisioned by the Commission. See Jesse Coonrod Johnson, supra.

The following language is found in the application:

“Applicant proposes to haul for construction contractors only, both in the construction of highways and in large building construction. Applicant proposes to haul only heavy building materials such as may not ordinarily be transported by common carrier truck lines because special equipment is required. * * *
" * * ‡
“This operation will cover routes and territory already served by other common carrier lines, either by rail, road, or both. As indicated herein-above, however, the applicant proposes here to haul only heavy materials and supplies for building and construction contractors such as may not ordinarily be handled by the regular general commodity common carrier because of the inadequacy and insufficiency of the regular common carrier equipment, and materials and supplies proposed to be hauled by the applicant being such materials and supplies as would ordinarily require special equipment, but at the same time they would be supplies not authorized to be carried by special commodity carriers.
“There is no adequate service for this type of commodity movement within the state of Texas, because applicant proposes to serve highway contractors as well as building contractors and in highway construction there is much heavy material and many supplies which can not be hauled by common carrier truck lines * * *.
“ * * *
“The use of any one highway would be negligible, because your applicant would only serve the various contractors of the state to points of construction.”

The pertinent parts of the order of the Railroad Commission are as follows:

“THE COMMISSION FINDS from the evidence that the applicant proposes to render a limited common carrier service only, limiting his transportation to the movement of heavy machinery and building materials for construction contractors, such machinery and materials being of such type and nature which may not ordinarily be transported by common carrier truck lines and which by their size and character ordinarily require special equipment. Few, if any, of the motor carriers are authorized or equipped to render this type of service and there being no protestants of motor carriers at the hearing, it would indicate that they are not interested nor do they care to render such service.
“THE COMMISSION FURTHER FINDS THAT building contractors on large construction work, including highways and large building construction, use very heavy machinery and building materials, much of which can not be dismantled; that in practically every case where machinery and materials move to the place of construction that some portion of the movement of the said machinery must be accomplished by the use of motor vehicle; that with existing transportation facilities such heavy machinery as contemplated to be used in construction work is moved to the place of construction by what is termed as ‘walking it1 or moving it under its own power, which is slow and inexpeditious. This involves movement over highways whereby such machinery is moved on rolling chains with cleats which are very damaging to the highways.
(S * * *
“THE COMMISSION FURTHER FINDS that a large percentage of such movement would require special permit to he issued by the State Highway Department under other laws.
“THE COMMISSION FURTHER FINDS that the inauguration of the service as proposed by the applicant would not seriously affect or interfere with the present common carrier transportation service now being rendered in said territory. * * * ”

We agree with the following conclusions of the Court of Civil Appeals with respect to the intention of the Railroad Commission:

“It is a matter of common knowledge that the motor transportation industry as a whole is highly competitive in nature. This fact was recognized by the Legislature of Texas when it enacted the Motor Carrier Act in 1929. The rights to use certain routes and the right to carry certain commodities to various points in this State, as well as in interstate commerce, along these routes are highly regulated and policed by the various agencies responsible therefor in deference to the public weal.
“When Bilbo was granted the certificate in question in 1940, the above mentioned regulation of common carriers by the Railroad Commission was well defined and the commodities that these common carriers were authorized to carry were well defined. To allow the construction given Bilbo’s certificate by the Trial Court with respect to the palletized items would, in effect, with the exception hereinafter pointed out, invade the field of commodities generally conceded to the common carriers. Such an interpretation not only puts the above mentioned language of the application and order to strain but ignores the traditional commodities that the various classes of carriers are authorized to transport. The greater number of items that the State sought to restrain Bilbo from transporting were commodities transported by common carriers when he first sought the certificate as well as commodities that are presently transported by common carriers under lawful authority. The placing of commodities on pallets and strapping them together as a unit for shipping is relatively a new development in the transportation industry. Such method was not in general use when Bilbo’s certificate was first issued in 1940. Such method of packing and shipping is widely used today. If the extent of Bilbo’s authority is to be determined by the weight of the building commodity aggrandized on pallets that require a special device for loading and not by looking to the commodity itself, an interpretation would be given to the authority that was not intended by the Commission when the authority was issued and was certainly not so interpreted by the common carriers, there having been no protest to the original application.” 378 S.W. 2d at 876.

Bilbo states in his brief that this is a case of first impression in Texas. We are fortunate, however, in having the benefit of a series of Interstate Commerce Commission cases which are directly in point. W. J. Dillner Transfer Co., 79 M.C.C. 335 (1959), aff’d, W. J. Dillner Transfer Co. v. I. C. C., 193 F.Supp. 823 (W.D.Pa.1961), aff’d mem., W. J. Dillner Transfer Co. v. United States, 368 U.S. 6, 82 S.Ct. 16, 7 L.Ed.2d 16 (1961); Jesse Coonrod Johnson, supra; St. Johnsbury Trucking Co., Inc., 53 M.C.C. 277 (1951). These cases establish the general rule that in determining the authority of a carrier, the individual commodity itself is the controlling consideration, not the weight of the aggregated commodities on pallets. Under this rule, Bilbo is not authorized to haul any of the commodities here in question because they are neither heavy nor require the use of special equipment.

In holding that Bilbo had the authority to transport the aforementioned palletized commodities, the Court of Civil Appeals followed an exception to the general rule. See C & H Transp. Co., Inc., 14 Fed.Carr. Cas. ¶ 35,301 (I.C.C.1961); R. Q. Black, 64 M.C.C. 443 (1955). In the Black case the Commission said:

“With respect to the bundles of sheet metal here involved, we think bundling was required by the inherent nature of the commodity. Single sheets are unstable, subject to bending or other damage, and, having in mind their size, awkward or impossible to handle without bundling. In the case of sheet tinplate, at least, bundling would also seem to be required as protection against damage to the coated surface of the sheets, and the same is true, to a lesser extent, with respect to the rather soft aluminum sheets. Examination of the facts concerning this method of handling convinces us that the bundling is done, not merely for economy and efficiency, but because it is required by the inherent nature of the commodity.” 64 M.C.C. at 446. [Emphasis supplied.]

As to some other commodities the Commission held:

“ * * * the commodities themselves are not such as in the absence of aggregation would require the use of special equipment either in loading and unloading or in actual transportation. Clearly, aggregation or palletization, though a convenience and from a practical standpoint desirable prior to transportation, was not dictated or required by the inherent nature of the commodity itself nor so essential or imperative as to make the aggregation or the palletized lot ‘the commodity itself’ rather than in fact an aggregation.” 64 M.C.C. at 447. [Emphasis supplied.]

The Commission in the Dillner case, decided approximately four years after Black, refused to apply the “inherent nature” exception and, in summarizing the important principles of construction,® said:

“In bundling, aggregating, or pal-letizing, it should be the general rule of construction (1) that the individual ‘commodity itself’ is the controlling consideration as respects a carrier’s authority; (2) that the limited exception which the Black case * * * represents, where commodities are bundled for protection or as otherwise required by their ‘inherent nature,’ must be maintained within its strictest limits; (3) that the minimum bundle which is required by the ‘inherent nature’ of the commodity is the size or type of bundle which must be considered in any determination whether necessity exists for the use of special equipment; and (4) that in order reasonably to maintain these limits it shall be presumed, in the absence of a sound basis for concluding to the contrary, that commodities tendered to carrier, in bundles or aggregations, are within the general rule and not within the limited exception thereto. * * * ” 79 M.C.C. at 358. [Emphasis supplied.]

The State contends that there is no evidence to support the Court of Civil Appeals’ conclusion that certain commodities require palletization for protection because of their inherent nature. Three witnesses, all representatives of shippers, testified concerning the practice of palletizing commodities. The first witness said that commodities are tendered to the carrier on pallets because it saves time in loading and because “we have less damage than when we ship loose.” The second witness said “there is a trade demand for that type of a unit” and “also that it has a tendency of getting our products to their destination in a better condition.” He said that his company would never consider returning to the old method because of economic reasons. Finally, the last witness testified that he had “found from past experience that this method of handling eliminates quite a bit of our damage, and it is also economical.”

There is no testimony concerning the physical characteristics of the commodities involved. There is no evidence that they require palletization for their protection. No attempt was made to define the minimum bundle required. We hold that the requirements of the inherent nature test have not been met in this case and that there is no evidence to support that portion of the judgment of the Court of Civil Appeals.

We approve the holding below that a forklift qualifies as special equipment so long as the commodity itself is otherwise authorized. We also approve the holding that incidental supplies and accessories may be hauled when tendered to the carrier as an integral part of a shipment of heavy building materials, machinery or supplies. T. M. Zimmerman Co., 14 Fed.Carr.Cas. ¶ 34,856 (I.C.C.1960); R. Q. Black, supra.

The State also asks this Court to declare that Bilbo’s authority is limited to transportation of commodities for building and construction contractors only and to points of construction only. No mention of these complaints was made in the State’s original petition. They were not included in the statement of points in the brief before the Court of Civil Appeals as required by Rule 374, Texas Rules of Civil Procedure. These points, therefore, are not before this Court.

The judgments of the trial court and the Court of Civil Appeals are modified as herein indicated, and as modified are affirmed.

GRIFFIN, J., dissenting.


author: WOODLEY, Judge.

text:
    J. Von BROWN, Appellant, v. The STATE of Texas, Appellee.
    No. 38428.
    Court of Criminal Appeals of Texas.
    June 26, 1965.
    James H. Martin, Dallas, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

Appellant was convicted for theft by false pretext of a Western Union money order of the value of $300 and his punishment was assessed at six years in the penitentiary.

The state does not seek an affirmance of the conviction because there was no proof that appellant received the money order or any of its proceeds.

Article 1413 Vernon’s Ann.P.C. relating to theft by false pretext provides, as an element of the offense, that the property obtained by false pretext be appropriated to the use and benefit of the person taking same. Schoenbeck v. State, 163 Tex.Cr.R. 14, 288 S.W.2d 121; McCain v. State, 143 Tex.Cr.R. 521, 158 S.W.2d 796; McCuistion v. State, 143 Tex.Cr.R. 283, 158 S.W.2d 527, 141 A.L.R. 205; 55 Tex.Jur.2d 313, Sec. 31.

The evidence being insufficient to sustain the conviction, the judgment is reversed and the cause remanded.


author: MORRISON, Judge.

text:
    James Winston SHARP, Appellant, v. The STATE of Texas, Appellee.
    No. 38263.
    Court of Criminal Appeals of Texas.
    June 26, 1965.

      No attorney of record on appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is the unlawful offer to sell securities which had not been registered with the Securities Commission as denounced by Article 581-1 et seq. Vernon’s Ann.Civ.St.; the punishment, five years and a fine of $3,000.

The first 340 pages of this record reveal how appellant aroused the interest and cupidity of a West Texas farmer and through him, the farmer’s doctor and thence to the pharmacist to whom appellant offered to sell 5,000 shares of preferred and 100 shares of common stock in Central Equity Corporation of Wichita Falls, Texas, for the sum of $5,100. No stock was exhibited, and no sale was made.

It was established through the testimony of an investigator for the Securities Board of Texas that Central Equity Corporation of Wichita Falls, Texas; had not been registered with the Securities Commission, nor had appellant ever been licensed to sell securities in the State.

Appellant did not testify or offer any evidence in his own behalf.

Bill of exception #1 complains of the court’s failure to sustain his motion to quash the indictment because the stock certificate was not set forth in haec verba therein. It is conceded that where a sale is actually consummated it is better pleading to incorporate in the indictment the stock certificate itself. See Sec. 1401, Will-son’s Criminal Forms, 6th Edition and Leinart v. State, 159 Tex.Cr.R. 220, 262 S.W.2d 504. However, since no stock certificates had ever been printed, as far as this record reveals, this would be an impossibility, and under the reasoning of Judge Christian in Aiken v. State, 137 Tex.Cr.R. 211, 128 S.W.2d 1190, such should not be required.

Bill of exception #2 complains of a variance between the date alleged and the proof as to the date that the offer to sell was made. The bill recites that the indictment alleged the 16th of September. The indictment itself alleges that the offer was made on September 6, and it is supported by the proof. 1 Branch’s Ann.P.C. 2d, Sec. 459, p. 457.

Appellant’s complaints as to the charge are without merit in the light of the rule expressed by Judge Hawkins in Shannon v. State, 115 Tex.Cr.R. 249, 30 S.W.2d 331, when he said that a charge should be considered in its entirety. See also Roper v. State, 155 Tex.Cr.R. 59, 230 S.W.2d 528.

Bill of exception #4 complains of the action of the trial court in failing to grant his motion for new trial based upon alleged newly discovered evidence. From the hearing on the motion, it appears that appellant’s attorney, Minor Pounds, was informed prior to the trial by the District Attorney that appellant claimed to have a history of mental illness. It was not until after trial that Attorney Pounds made any inquiry about the matter, and no issue as to appellant’s sanity was raised during the trial. Gephart v. State, 157 Tex.Cr.R. 414, 249 S.W.2d 612, is authority for the rule that an attorney for an accused must use all diligence in securing evidence on the issue of insanity and that when, prior to trial, an attorney learns that his client has a record of a commitment for insanity, the attorney may not raise the issue for the first time in motion for new trial, as newly discovered evidence.

Finding the evidence sufficient to sustain the conviction and no reversible error appearing, the judgment is affirmed.


author: BELCHER, Commissioner.

text:
    Herman JONES, Appellant, v. The STATE of Texas, Appellee.
    No. 38407.
    Court of Criminal Appeals of Texas.
    June 26, 1965.
    Paul P. Regnier (Court appointed), Clayton L. Phillips, Jr., (Court appointed), Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Charles E. Bonney and Neil McKay, Asst. Dist. Attys., Houston and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for statutory rape; the punishment, fifteen years.

The state relies for a conviction upon the testimony of the prosecutrix, age thirteen, and her mother and also upon the medical records of the hospital where the prosecu-trix was examined.

To constitute the offense of rape it was essential that the proof show penetration, beyond a reasonable doubt. Art. 1187, Vernon’s Ann.P.C.; 4 Branch’s 2d 300, Sec. 1977.

In support of this essential element of the offense, the testimony of the prosecutrix was as follows:

“A * * * he got in the bed and then forced himself, his privates.
“Q Say that again? A He tried to force his privates into me.
“Q. Did he say anything to you? A He told me if I didn’t open my legs he was going to kill me.
“Q Were you afraid of him? A Yes, sir.
“Q Tell us again what he did with his private parts, if anything. A He forced his private parts in the front of me, then he tried the back, my rectum.
‡ >Js sjc tf

The mother testified that as she entered her home after an absence of several hours she met the appellant at the door as he was leaving. She further testified that at this time:

“A She [prosecutrix] said: ‘He [appellant] said if you tell anybody he would kill her and I was frightened and he had pulled her panties off and said he didn’t do nothing but * * * and she said when he removed the handkerchief and kissed her and made her open her legs and tried to force his way in and if he couldn’t force his way in front he would like to force his way in her rectum.”

The proof shows that the physician who examined the prosecutrix at the hospital had moved to and was living in another state at the time of the trial.

The hospital records pertaining to the examination of the prosecutrix were introduced in evidence. Assuming that they were properly admitted, they reveal abrasions and lacerations of her private parts but do not show penetration required by law to constitute the offense of rape.

Testifying in his own behalf, the appellant denied that he committed the alleged rape and called several witnesses in support of his testimony that he was at another place at the time in question and could not have committed the offense.

As shown above, the evidence is insufficient to support the conviction for rape.

The judgment is reversed and the cause is remanded.

Opinion approved by the court.


author: DICE, Commissioner. BELCHER, Commissioner. MORRISON, Judge

text:
    Arnold Cleo SCHNEIDER, Appellant, v. The STATE of Texas, Appellee.
    No. 38213.
    Court of Criminal Appeals of Texas.
    May 12, 1965.
    Rehearing Denied June 26, 1965.
    Thomas D. White, Houston, for appellant.

      E. W. Patterson, Dist. Atty., Gonzales, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is statutory rape; the punishment, fifty years.

The prosecutrix, a seventeen-year-old high school senior, lived with her parents in the city of Houston. She testified that on the day in question she left her home around 6:30 p. m. or a quarter to 7, to go to a friend’s wedding shower. While traveling in her father’s Volkswagen, she became lost and it began to rain. As she was driving on the freeway she observed an automobile following close behind, the driver of which she thought was a policeman signal-ling for her to stop. She proceeded to drive off the road and, after she had stopped, a man whom she positively identified as the appellant, came up to her car and ordered her to get out. When she discovered that appellant was not a policeman she tried to start her car and leave. Appellant grabbed the keys and then pulled her out of the car and proceeded to hit and beat her around the shoulders, neck, and head. He then put her in his automobile and drove some two miles on a graveled road in Harris County, and stopped. There he demanded that she take off her clothes and when she started screaming he threatened to kill her and began choking and hitting her. The prosecutrix then got out of the car and ran across a levee into a field, where she fell in the mud and lost her shoes. Appellant came to where she was and pulled off all her clothes. She fought him “every minute.” He then dragged her further out into the field, where he knocked her to the ground and raped her. Appellant then took the pros-ecutrix, who was totally undressed, to his automobile and drove to a graveled road out from Columbus, in Colorado County, where he stopped the automobile, and again raped her. After committing this act of rape, appellant then drove to a parking lot in Bel-laire, where he left the prosecutrix, still totally undressed but wrapped in a bedspread, in a boat on a parking lot. As the prose-cutrix started walking, some people passing in a car picked her up and took her to the Baptist Memorial Hospital in Houston, where she was examined by Dr. Ferro Luigi.

Dr. Luigi testified that his examination disclosed two small contusions and vaginal lacerations on the right portion of the hymen and that there had been a penetration of the vulva down to the hymen.

Appellant was arrested the following afternoon at the home of his brother-in-law, when the officers found him hiding in a closet behind some clothes.

Testifying as a witness in his own behalf, appellant denied having seen the prosecu-trix or having committed an assault upon her on the night in question. He swore that on such date he went to the Viking Homes in the city of Houston, around 7 p. m., to get his check for somé work; that as the man he wanted to see was not there he went to Deb’s Cafe and then to the 8-Ball pool hall looking for him. Appellant stated that after he had ordered a beer and played two games of pool he left, around 9:30 p. m., and went home, arriving about 11 p. m. Appellant explained that the reason he hid in the closet on the occasion of his arrest was because he thought the officers had come after him for some parking violations and he wanted some time to call his attorney.

Witnesses were called by appellant, who testified, in support of his defense of alibi, that they saw him at the Viking Homes around dark on the day in question.

In rebuttal, the state called Mrs. Cheryl Martin as a witness, who testified that around 7 p. m. on that day appellant came to her home, where, after making inquiry if her husband dealt in real estate, he grabbed her around the neck and told her to take off her clothes. She related that when her two-year-old child came out in the garage where the witness was at the time, appellant directed her to tell the child to go back in the house, and that some twenty minutes later appellant left. She further testified that after he left she called the sheriff’s office and gave the officers a description of appellant and a description and the license number of his car.

Appellant objected and excepted to the court’s action in permitting Mrs. Martin to testify, on the ground that the rule had been invoked and she had been in the courtroom and heard some of the testimony.

The record shows that Mrs. Martin had been in the courtroom for some forty-five minutes before being called to the stand and that she had not been sworn and placed under the rule. She stated that while she was in the courtroom the appellant testified for about five minutes but she did not hear his testimony; that she heard the testimony of the witnesses who preceded her to the stand but “wasn’t paying any attention to it.” We perceive no reversible error in the court’s action in permitting her to testify, as the record reflects that Mrs. Martin did not hear any of appellant’s testimony and that the witness who preceded her to the stand, whose testimony she heard, did not testify to the matters concerning which she was called to testify. Shield v. State, 118 Tex.Cr.R. 509, 38 S.W.2d 76.

Appellant also objected to the testimony given by Mrs. Martin, on the ground that it constituted proof of an extraneous offense and that the state was permitted to show the details thereof.

The testimony of Mrs. Martin that appellant was at her home at 7 p. m. on the night in question, although it showed the commission of an extraneous offense, was admissible to rebut and defeat appellant’s special defense of alibi. Fino v. State, 137 Tex.Cr.R. 340, 129 S.W.2d 652; Gephart v. State, 157 Tex.Cr.R. 414, 249 S.W.2d 612; Washington v. State, 162 Tex.Cr.R. 479, 286 S.W.2d 629.

In permitting Mrs. Martin to relate the actions of appellant on such occasion over the obj ection that it was permitting the state to prove details of the extraneous crime, the court did not err. Having the right to make proof of the appellant’s actions and assault upon the witness, the details of the assault would be admissible.

The court submitted to the jury, in his charge, the issue of appellant’s guilt of statutory rape, alleged to have been committed in Colorado County.

It was not necessary for the court to define the term, “force,” in his charge, as appellant’s guilt of rape was shown by the state’s testimony without the use of force and only the issue of his guilt of statutory rape was submitted to the jury. Ulmer v. State, 71 Tex.Cr.R. 579, 160 S.W. 1188; Phillips v. State, 139 Tex.Cr.R. 574, 141 S.W.2d 371.

The jury were further instructed that if they believed from the evidence that prior to the commission of the offense, if any, in Colorado County, the appellant had carnal knowledge of the prosecutrix in Harris County, they were not to consider such act of intercourse in arriving at their conclusion as to his guilt or innocence of the offense, if any, in Colorado County.

Complaint is made by appellant to the court’s failure to limit in his charge the jury’s consideration of the testimony showing the assault committed upon the witness, Mrs. Martin.

This testimony, having been offered to rebut appellant’s special defense of alibi, was not required to be limited to the question of impeachment by an instruction in the charge. Young v. State, 61 Tex.Cr.R. 303, 135 S.W. 127; Whitehead v. State, 61 Tex.Cr.R. 558, 137 S.W. 356; Russell v. State, 84 Tex.Cr.R. 245, 209 S.W. 671.

Appellant’s remaining contentions have been examined and do not present reversible error.

Finding the evidence sufficient to support the conviction and no reversible error appearing, the judgment is affirmed.

Opinion approved by the court.

ON APPELLANT’S MOTION FOR REHEARING

BELCHER, Commissioner.

In his motion for rehearing appellant complains of the disposition of his contention regarding the court’s failure to limit in his charge the jury’s consideration of the testimony showing the assault committed upon the witness, Mrs. Martin.

Such complaint is not properly before us for review, under the objection made by appellant to the charge.

The objection to the charge reads:

“Defendant objects and excepts to the Court’s charge because it has not and does not properly limit the jury as to their consideration of the evidence as to other criminal acts alleged to have been committed by Defendant in Harris County.”

In the relatively recent case of Cage v. State, 167 Tex.Cr.R. 355, 320 S.W.2d 364, in passing upon a similar contention, we said that the objection that the charge did “ ‘not meet the requirements of the law regarding extraneous transactions’ ” was insufficient as an objection.

In the case at bar the court had instructed the jury as to one offense which had been committed in Harris County and might logically have thought that appellant’s objection went to that portion of the charge. The objection made by appellant does not meet the test of Art. 658, Vernon’s Ann.C.CP., which requires that the objection shall be made “distinctly specifying each ground of objection.”

Appellant’s motion for rehearing is overruled.

Opinion approved by the court.

MORRISON, Judge

(concurring).

I agree with Judge BELCHER’S opinion on rehearing. After further study, I have concluded that we were in error in holding originally that the testimony of Mrs. Martin should not have been limited had proper objection been made.