text:
    Charles Robert LEGEL, Appellant, v. Neva Lois LEGEL, Appellee.
    Court of Appeals of Kentucky.
    Oct 2, 1964.
    Hargadon, Hargadon, Lenihan & Har-bolt, Louisville, for appellant.
    Raymond L. Suell, Louisville, for appel-lee.
   CULLEN, Commissioner.

Charles Robert Legel was granted a divorce from his wife on the ground of lewd and lascivious conduct on her part. The judgment awarded the wife $10,000, purportedly as restoration of property which the husband had obtained from her during and by reason of the marriage. Charles has appealed from that part of the judgment making the award to the wife.

The parties had been married a little over 16 years, and had four children. Mrs. Le-gel worked for a distillery for 10 years during the marriage and earned some $17,-000 in wages and other benefits which was used, along with the husband’s income, for living expenses of the family. A small portion of her earnings was used to make improvements on the family dwelling.

When the divorce suit was filed the assets of the family consisted of a modest dwelling, appraised at $6,500, some furniture, and two old automobiles. The wife was awarded the furniture and one of the automobiles. The dwelling was in the joint names of the parties, but since the lot had been given to them by Mr. Legel’s mother and since the main cost of constructing the dwelling had been paid out of his earnings before Mrs. Legel became a wage earner, the court gave Mr. Legel full title to the dwelling. However, the $10,000 award in favor of the wife was made a lien on the dwelling.

It appears that the trial court was of the opinion that the wife could not be awarded alimony because the divorce was granted on the ground of moral delinquency on her part, but that for the money she had contributed to the family living expenses she should have some recompense, which the court chose to make under the designation of restoration of property. The appellant husband maintains that the law of restoration does not authorize the award that was made. In this contention he is correct

Under our decisions, if the wife’s earnings have gone for living expenses and have not been converted into the form of property, she has no restorable interest in property of the husband. See Heustis v. Heustis, Ky., 346 S.W.2d 778; Pearson v. Pearson, Ky., 350 S.W.2d 141. And under the restoration statute, KRS 403.065, restoration may be had only of property “not disposed of at the commencement of the action.” Here, aside from the dwelling in which the trial court found the wife had no restorable interest, there was no property in existence capable of being restored. The actual effect of the purported order of restoration was to require the husband to pay the wife a sum of money out of his future earnings.

The award cannot be justified as a form of alimony because our cases authorizing alimony without regard for the wife’s fault apply only to the allowance of alimony out of the estate accumulated from the income of the husband during the marriage. Heustis v. Heustis, Ky., 346 S.W.2d 778; Carter v. Carter, Ky., 381 S.W.2d 533 (decided September 25, 1964). Here there was no accumulated estate.

We think the wife was entitled, by way of restoration, to the money that she contributed to the making of improvements on the family dwelling. Upon remand of the case the trial court will determine how much money was so contributed and award the wife judgment for that amount, which may be made a lien on the dwelling.

The judgment is reversed for further proceedings in conformity with this opinion.


source: Caselaw Access Project

author: PALMORE, Judge.

license: Public Domain

text:
    Edward A. NICHOLAS, Appellant, v. Luther THOMAS, Warden, Kentucky State Penitentiary, Appellee.
    Court of Appeals of Kentucky.
    Oct. 2, 1964.

      Edward A. Nicholas, pro se.
    Robert Matthews, Atty. Gen., Martin Glazer, Asst. Atty. Gen., for appellee.
   PALMORE, Judge.

Proceeding in forma pauperis, Edward A. Nicholas appeals from a judgment of the Lyon Circuit Court dismissing his petition for a writ of habeas corpus against the warden of the state penitentiary, to which institution appellant has been committed to serve a 5-year sentence pursuant to conviction in the Kenton Circuit Court under an indictment charging him with a violation of KRS 218.170 (fraud or deceit in obtaining or attempting to obtain narcotic drugs).

The ground on which he contends he is entitled to a release via habeas corpus is that because the indictment on which he was convicted had not been signed by the foreman of the grand jury as required by RCr 6.06 the proceedings were unconstitutional and the judgment void.

The petition was properly dismissed for lack of a showing that an RCr 11.42 motion would not have been an adequate procedural avenue. Ayers v. Davis, Ky., 377 S.W.2d 154 (1964). However, in order to obviate further litigation we have considered the merits and are of the opinion that the signing of an indictment, formerly required by statute (Criminal Code of Practice, § 119) and now' by rule of court (RCr 6.06), is not a matter of constitutional right, state or federal.

RCr 6.06 provides specifically as follows :

“No objection to an indictment or information on the ground that it was not signed as herein required may be made after a plea to the merits has been filed or entered.”

As we view it, the foreman’s signature is a procedural safeguard rather than a substantive requisite of an indictment. The indictment is an accusation made in behalf of the people. It is formed by the concurrence of nine or more grand jurors (Const. § 248) in proper session and is completed by a return or delivery to the court. Without these it cannot be an indictment, but with them, if it charges the defendant with a crime over which the circuit court has jurisdiction, it is.

“We are of the opinion that the signature of the foreman of the grand jury is required only as a matter of direction to the clerk and for the information of the court; that its presence or absence does not materially affect any substantial right of the defendant; and that it neither assures to him nor prevents him from having a fair trial.” People ex rel. Merrill v. Hazard, 361 Ill. 60, 196 N.E. 827, 829 (1935).

The judgment is affirmed.


author: CLAY, Commissioner.

text:
    Clarence L. LEBUS, Appellant, v. Nancy Saufley LEBUS, Appellee.
    Court of Appeals of Kentucky.
    Oct. 2, 1964.
    E. F. Schaeffer, Jr., Kincaid, Wilson & Trimble, Lexington, Clay Shackelford, Shackelford, Burnam & Thompson, Richmond, for appellant.
    Robert M. Odear, Stoll, Keenon & Park, Lexington, for appellee.
   CLAY, Commissioner.

This cause is before us on appellee’s motion to dismiss the appeal on the grounds (1) a sufficient jurisdictional amount is not in controversy, and (2) the orders appealed from are not final.

This is a divorce action ’in which no judgment on the merits has been rendered. On March 6, 1964, the circuit court entered an order overruling appellant’s motion to dismiss the action on the grounds of improper venue and lack of jurisdiction. On April 13, 1964, the court entered an order allowing temporary alimony and temporary maintenance for the children of the parties pendente lite. Appellant undertook to appeal from these orders. (He also sought an appeal from an “opinion of the court” and a “statement of plaintiff”.)

Appellee contends the appeal from the order allowing maintenance should be dismissed on the ground that an insufficient jurisdictional amount is involved. It is pointed out that the amount actually in controversy is an allegedly excessive allowance of $374.30 per month, which obviously is less than the $2500 required to appeal as a matter of right. (KRS 21.060)

Prior to the decision in Stone v. Stone, Ky., 275 S.W.2d 910, this Court had held in substance that in a case involving the payment of alimony by installments the jurisdictional amount was the sum which had become due under the judgment prior to the time of the appeal. Noble v. Noble, 310 Ky. 726, 221 S.W.2d 654. That case and similar ones were overruled in the Stone case, wherein it was held that the issue involved on that particular appeal concerned the right to have installment payments increased, which right could not be translated into a monetary valuation. Under such circumstances the jurisdictional amount need not be shown. McLean v. Thurman, Ky., 273 S.W.2d 825.

We think there is a broader ground upon which this Court should entertain an appeal from a judgment allowing alimony and/or maintenance in installments, assuming it is otherwise appealable (which .will be subsequently discussed). In such judgment the right to, and the obligation to, make future payments is fixed. It is not realistic to say that the amount in controversy is the amount which has accrued under the judgment at the time of taking an appeal. The contested amount of future payments is certainly in controversy. If under ordinary circumstances and in due course the installment payments in dispute will reach the sum of $2500, a sufficient amount is involved to give this Court jurisdiction under KRS 21.060. Consequently, had this appeal been taken from a final judgment allowing what appellant claims was an excessive amount of $374.30 per montH (which would exceed $2500 in less than seven months), a sufficient jurisdictional amount would have been in controversy to authorize an appeal as a matter of right.

To decide otherwise would often deprive the husband of a right of appeal from a final judgment where he is required to make installment payments for alimony or maintenance. Since he. must appeal within 30 days from the entry of judgment under CR 73.02, he could not wait to appeal until sufficient additional contested installments had become due under the judgment. The jurisdictional amount may be found in the projected ultimate liability under the judgment. Consequently, if the maintenance order before us was otherwise an appeal-able one, this ground of the motion could' not be sustained.

We consider the second ground. ■ Appeals to this Court may be taken only ¡ from final orders or judgments. KRS 21.-060; CR 73.01 and 73.02. An appealable ¡ judgment is defined in CR 54.01 as “a final' order adjudicating all the rights of all the. parties in an action or proceeding, or a . judgment made final under Rule 54.02”. Obviously neither of the orders appealed < from is a final order from which an appeal may be taken.

The decision of a court that it has jurisdiction of a cause and that the venue is proper does not determine the ultimate rights of the parties, and is well recognized as an interlocutory order. 4 Am.Jur.2d, Appeal & Error, section 89 (page 604). It is only on the ground that such an order is not independently appealable that this Court will entertain an original proceeding questioning its correctness. See Burke v. Tartar, Ky., 350 S.W.2d 146, and cases cited therein.

Similarly, the allowance of maintenance pending an action for divorce, under KRS 403.060, is by its very nature interlocutory and the order does not adjudicate the ultimate rights of the parties. As an original proposition this would seem beyond question. However, prior to the adoption of our Civil Rules (in 1953), this Court had held such an order appealable. Lochnane v. Lochnane, 78 Ky. 467; Kelly v. Kelly, 179 Ky. 586, 200 S.W. 925; Arms v. Arms, 246 Ky. 827, 56 S.W.2d 536; Ahrens v. Ahrens, 299 Ky. 497, 185 S.W.2d 694. The soundness of this holding was questioned as far back as 1899 in Campbell v. Campbell, 50 S.W. 849, 21 Ky.Law Rep. 19, but it seems to have been blindly followed without adequate justification.

The correctness of those former decisions is questionable. Since such orders could be changed from time to time by the circuit judge, or a final order entered while the appeal was pending, the appeal could be rendered moot by any of a number of subsequent orders in the circuit court. If such order were appealable, it could be superseded by the husband and his wife and children possibly left destitute pending the appeal proceedings, contrary to the purpose of the authorized allowance. See Coffee v. Coffee, Ky., 247 S.W.2d 501.

Without examining the matter further as an original proposition, it is clear that such an order does not constitute a final or ap-pealable judgment under CR 54.01 and the following cases: Campbell v. Hulett, Ky., 243 S.W.2d 608; Massey v. Fischer, Ky., 243 S.W.2d 889; Commonwealth ex rel. Reeves v. Unknown Heirs of Brown, Ky., 249 S.W.2d 52; Brumley v. Lewis, Ky., 340 S.W.2d 599.

We cannot entertain an appeal from interlocutory orders.

The appeal is dismissed.


author: WILLIAMS, Judge.

text:
    J & R COAL COMPANY et al., Appellants, v. Lawrence Ray CARTER et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 2, 1964.
    Clore & Swinford, Kelly Clore, Pineville, for appellants.
    Julian H. Golden, Pineville, for appellee Lawrence Ray Carter.
    J. C. Helton, Pineville, for appellee Coal Operators Casualty Co.
    J. W. Craft, Frankfort, for appellee Workmen’s Compensation Board.
   WILLIAMS, Judge.

The appellee, Lawrence Ray Carter, was found by the Workmen’s Compensation Board to be totally disabled from silicosis. On appeal to the circuit court the Board’s finding was sustained and from a judgment entered thereon this appeal is taken.

The only issue is whether the appellee’s last injurious exposure to a hazard which would cause silicosis occurred during his employment with the appellant J & R Coal Company. He had worked many years in the mines of appellant until his employment was terminated in January 1962. X-rays taken soon thereafter showed he had silicosis.

The appellant introduced evidence that the appellee had worked inside various mines after his employment with them. Their theory is the appellee was exposed to a hazard which would cause silicosis following the termination of his employment with them. Their testimony was that ap-pellee worked inside his own mine and inside a mine belonging to Steve Sullivan and a mine belonging to the Barton Brothers after January 1962. It is contended that the proof of his working in those mines is conclusive and uncontradicted.

Had appellant’s testimony been the only proof taken concerning appellee’s activity after his employment was terminated, it would have been conclusive. But the appel-lee categorically denied each allegation that he had worked inside a mine after January 1962. He was asked:

“Q. Did you work any place for Barton Brothers?
“A. I helped build a coal bin and runway outside.
"Q. Do you know Steve Sullivan?
“A. Yes.
“Q. Did you work in the mines for him?
“A. Never a day in my life.
“Q. Did you operate a mine of your own since you have been cut off from J & R Coal Company?
“A. No.”

Appellee was also asked if he had worked in various other mines, and he replied that he had not.

There is a direct conflict in the evidence which has been resolved by the Workmen’s Compensation Board. The sole function of a court in reviewing factual determinations in Workmen’s Compensation cases is to determine if the evidence upon which an order is based is relevant and substantial. Savage v. Claussner Hosiery Co., Ky., 379 S.W.2d 473. The weight given to such evidence is a matter solely for the Board. The Mengel Co. v. Lehman, Ky., 259 S.W.2d 19. There is relevant and substantial evidence that the appellee last suffered injurious exposure to the hazards of silicosis while employed by the appellant J & R Coal Company.

The judgment is affirmed.


text:
    Irene OLLISH, Appellant, v. John OLLISH, Appellee.
    Court of Appeals of Kentucky.
    Oct. 2, 1964.

      M. D. Harris, Somerset, for appellant.
    Pat Rankin, Stanford, for appellee.
   PALMORE, Judge.

Irene and John Ollish were married in 1935. A divorce proceeding instituted by her in 1957 or 1958 was abandoned and the parties continued to live together. In 1962 he brought this action for divorce on the ground of 5 years’ separation without cohabitation. KRS 403.020(1) (b). She counterclaimed on the grounds of cruel and inhuman treatment, KRS 403.020(3) (b), and cruel beating and injury or attempts at injury, KRS 403.020(3) (c). On the basis of the evidence thereafter introduced the husband’s complaint was dismissed and the wife was awarded a divorce and lump sum alimony of $8,000 secured by a lien on his real estate. She appeals, contending the alimony is inadequate.

The learned chancellor delivered a written opinion from which we quote as follows :

“Mrs. Ollish asks for divorce on several grounds, one of cruel treatment, and another of probable danger to her life from her remaining with him. According to her he pushed her around and bruised her, locked her out of the house so she had to sleep on the porch several nights, struck her over the head with a broom handle on one occasion, since this suit was brought, and injured her to such extent she had to go to the hospital for treatment; at another time, he shot his pistol off in the house after telling her to let him shoot through her foot. He denied he locked her out of the house; he made no denial of the other charges. She testified that he drinks liquor a good deal, and when he does ‘just takes his spite’ out on her, pushing and throwing her around. There is nothing in his entire testimony indicative of his ever, during the times she was there, exhibiting any affection or even kindness towards her. Perhaps the best explanation of his attitude as shown from * * * his testimony regarding a divorce, is not because of any affection he has for his wife, but fear as to the alimony he might be required to pay, in event of a decree of divorce. I think she is, on the grounds mentioned above, entitled to be granted divorce, and entitled to be awarded alimony.
“Plaintiff is a farmer, owning between 700 and 800 acres, and with personal property of at least three or four thousand dollars. The couple have no children, except a married daughter. No one except defendant is dependent upon plaintiff for support. They were married in 1935. Each is now 47 years old. So far as disclosed, he is a strong, healthy man; she apparently is in fairly good health, though in recent years she has had to undergo several operations, one within the recent past for gallbladder trouble. She had no property; at times she has worked in a laundry. So far as shown, she has not engaged in work away from home other than that. She testified that when she married, she had no property, that she worked from time to time in the field helping plaintiff. She has done the cooking and household work, such as is the burden of the usual farm wife in their station and circumstances. He makes no complaint of her in these respects, nor does he dispute her statement she worked in the field helping with the farm. At their marriage, he had about $1000.00 in cash; has since inherited $2000.00, and the balance of what he now owns, land and personalty, has been accumulated since their marriage. He evidently was very reluctant to give any definite information as to just how much land he owned, or any definite information as to what the value of his estate is. He testified he owes about $9000.00, and put a net value on his estate of approximately $42,-000.00. According to Mr. Teague, local tax commissioner, his real estate is assessed at about $16,000.00; that land generally in this county — and the assessment in question was simply of land —is supposed to be assessed at about' one third of its fair market value.
“Upon that basis, it was his opinion plaintiff’s real estate is of the fair value of about $50,000.00. Under these facts, it is my conclusion defendant should be awarded alimony in the amount of $8,-000.00.”

Even when the wife is not entitled to a divorce we have recognized that the performance of her wifely duties during a substantial portion of the marriage relationship ordinarily entitles her (to the extent she does not have a sufficient estate of her own) to alimony equal' at least to a third of the estate accumulated from the income of her husband. Cf. Heustis v. Heustis, Ky., 346 S.W.2d 778 (1961). Surely it ought to be no less when she is found not to have been at fault in the dissolution of the marriage.

Ollish grudgingly admitted to á net worth of $42,000. The evidence' would sustain' a finding that' it is more. However, as the chancellor did not make any finding in this respect the proceeding must be remanded for that purpose before the alimony question can be settled. Upon return of the case the trial court is directed to determine the husband’s net worth and award the wife alimony in the sum not less than the minimum suggested in the Heustis case.

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


author: MONTGOMERY, Judge.

text:
    COMMISSIONERS OF the SINKING FUND OF the CITY OF LOUISVILLE et al., Appellants, v. OUR OWN DELIVERIES, INC., Appellee.
    Court of Appeals of Kentucky.
    June 26, 1964.
    Rehearing Denied Nov. 6, 1964.

      Harris W. Coleman, Arthur W. Grafton, Edgar A. Zingman, Louisville, for Commissioners of Sinking Fund.
    Wilber C. Fisher, Jr., Eugene H. Alvey, Louisville, for City of Louisville.
    Bertram C. VanArsdale, Charles P. Sutt, Jr., Louisville, for appellee.
   MONTGOMERY, Judge.

The question presented is whether Our Own Deliveries, Inc., a local cartage business, is a common carrier and thus is exempt from payment of a license fee imposed by the City of Louisville on owners of motor trucks, etc., operating on the streets of the city. The City appeals from a judgment holding the cartage business to be a common carrier.

By ordinance the City of Louisville imposed and collected an annual license fee from the owner or operator of various trucks, trailers, etc., operating on the streets of the city. Appellee had operated trucks and kindred vehicles and paid the fees without complaint until May 1,1955. Since then payments have been made under protest. This action is to recover such fees paid under protest.

The ground of the protest is that appellee qualified and was issued on January 22, 1955, a local cartage certificate as a common carrier under Kentucky Revised Statutes, Chapter 281, Motor Carriers, and thus was no longer liable for the city license fee. A local cartage certificate, formerly defined in KRS 281.010(20) (a), is now defined in KRS 281.014(3) (a) as “granting authority only for the operation of motor vehicles exclusively engaged in the transportation of property for hire between points within a city or within a city and its commercial area.” Specific exemption from the city license fee is claimed under KRS 281.830(2), which prohibits the imposition of such a fee on any motor vehicle operated under a certificate with certain inapplicable exceptions.

Appellants contend that prior to issuance of the certificate appellee was in reality a private carrier and that the character of the business was not changed by a 1954 Act placing local cartage carriers under the regulatory requirements of the Act. See 1954 Acts, Chapter 188. There is no argument with the proposition advanced by.appellants that a carrier cannot be changed from a private carrier to a common carrier by legislative enactment. Frost Trucking Co. v. Railroad Commission, 271 U.S. 583, 70 L.Ed. 1101, 46 S.Ct. 605, 47 A.L.R. 457; Louisville Taxicab & Transfer Co. v. Blanton, 305 Ky. 179, 202 S.W.2d 433, 175 A.L.R. 1329. However, appellants start with the false premise that appellee was a private carrier before enactment of the 1954 Act.

The nature of the business determines the status as common or private carrier, and persons carrying on a transportation business under circumstances which, in law, constitute them common carriers cannot divest themselves of that character by declaring themselves otherwise. Bank of Kentucky v. Adams Express Co., 93 U.S. 174, 23 L.Ed. 872. The president of ap-pellee testified that appellee would deliver cartons for anybody that asked within the area in which it was authorized to operate. The Chancellor'on this uncontradicted testimony held that appellee was holding itself out to the public generally to transport merchandise within its authorized territory and thus was a common carrier.

In Robertson & Co. v. Kennedy, 32 Ky. (2 Dana) 430, 26 Am.Dec. 466, decided November 11, 1834, the precise question involved here was answered. Robertson & Company sued Kennedy for the loss of a hogshead of sugar and alleged that he, as a common carrier, had undertaken for a reasonable compensation to carry it from the bank of the river to their store in Bran-denburgh. The proof was that Kennedy had been in the habit of hauling for hire with an ox team, in the town of Branden-burgh, for every one who applied to him; that he had undertaken to haul for Robertson & Company a hogshead of sugar on a slide for delivery to their store in Branden-burgh-; and that the slide and hogshead had slipped into the river, whereby the sugar was spoiled.

Judge Nicholas therein defined a common carrier ip the following terms:

“Every one who pursues the business of transporting goods for hire, for the public generally, is a common carrier. According to the most approved definition, a common carrier is one who undertakes, for hire or reward, to transport the goods of all such as choose to employ him, from place to place. Dray-men, cartmen and porters, who undertake to carry goods for hire, as a common employment, from one part of a town to another, come within the definition. So also does the driver of a slide with an ox team. The mode of transporting is immaterial.”

The kind of transportation used, whether oxen and slide or truck and trailer, does not change the nature of the business.

This definition has been approved in Parker v. Stewart, 296 Ky. 48, 176 S.W.2d 88. See also Varble v. Bigley, 77 Ky. (14 Bush.) 698, 29 Am.Rep. 435; General Drivers, etc. v. American Tobacco Co., Ky., 264 S.W.2d 250. The provisions of KRS, Chapter 281, Motor Carriers, are in harmony. See definition, KRS 281.011(3).

The Chancellor correctly held appel-lee to be a common carrier. The failure of the Department of Motor Transportation to enforce, or the noncompliance of appellee with the pertinent statutes and departmental regulations, is a matter of administration which does not change the status of appellee. The matter of uniform rates and charges is also a matter of administration. •

Judgment affirmed.


author: PER CURIAM.

text:
    H. G. HICKS et al., Petitioners, v. CONTINENTAL CARBON PAPER MANUFACTURING COMPANY OF DALLAS, Respondent.
    No. A-10329.
    Supreme Court of Texas.
    Oct. 7, 1964.
    Rehearing Denied Nov. 4, 1964.
    Crocker & McDonald, Fort Worth, for petitioners.
    Tom James, Dallas, for respondent.
   PER CURIAM.

The judgment of the Court of Civil Appeals (380 S.W.2d 737) is correct under Article 12.14, Title 122A, Vernon’s Annotated Texas Civil Statutes. It is unnecessary for us to consider the question of whether the charter of the corporation involved in the case, together with its right to do business, was subject to revival and reinstatement.

The application for writ of error is refused, no reversible error.


author: WALKER, Justice. SMITH, Justice

text:
    Herman L. SANDERS et al., Petitioners, v. M. H. WORTHINGTON, Respondent.
    No. A-8659.
    Supreme Court of Texas.
    July 15, 1964.
    Rehearing Denied and Dissenting Opinion Filed Oct. 28, 1964.

      Joel W. Cook, Shapiro & Corman, Houston, for petitioners.
    Jesse A. Pardue, Joseph W. Cash, Williams, Lee & Lee, Lee & Forbes, Houston, for respondent.
   WALKER, Justice.

Our former opinion in this cause is withdrawn and the following is substituted therefor:

M. H. Worthington, respondent, brought this suit in trespass to try title against Mrs. Nancy W. Anderson and her tenant, Herman L. Sanders. A cross action in trespass to try title was filed by Mrs. Anderson and Gelta Realty Corporation, the latter as intervenor and holder of an option to purchase the land from Mrs. Anderson. On findings of the jury favorable to Worth-ington on the boundary issues, the trial court disregarded findings in favor of the defendants on the issues of limitation and rendered judgment for respondent. The defendants and cross plaintiffs appealed, and the Court of Civil Appeals affirmed. 349 S.W.2d 115. Mrs. Anderson, her tenant and Gelta Realty Corporation are petitioners here. It is our opinion that the trial court erred in disregarding the jury finding that petitioners had matured title under the ten year statute of limitation.

The following sketch will be of assistance in understanding the boundary dispute, which has some bearing on one of the limitation questions presented by the appeal:

The land in controversy is a strip about 260 varas wide within the enclosure of petitioners, described in the petition as 43.90 acres of the W. H. Gentry Survey and 50.62 acres of the Francis Fry Survey. Its corners are indicated on the map by the figures 6, 9, 4 and 12. The hub of the boundary controversy is the east-west location of the west lines of the Rice, Gentry and large Fry Surveys. Respondent is the record owner of the Gentry and large Fry, which are east of and adjacent to H. & T. C. Ry. Co. Survey No. 55, hereinafter referred to as Section 55. He contends that the strip in dispute is located in the Gentry and Fry. Petitioners insist that it is part of Section 55, which they hold by record title through and under W. I. Williamson and his wife, Rebecca. W. I. Williamson acquired Section 55 in 1907 by a conveyance which included the land in controversy. He and his wife died in 1926 and 1935, and each left a will devising all of their respective estates to their son, H. T. Williamson. The latter, who died in 1945, devised and bequeathed all of his property and estate to his widow, who is now Mrs. Nancy W. Anderson.

Two sets of senior surveys are involved which do not tie to each other. Laid in from east to west were the Dement, Egbert, Clarkson, large Wood, small Wood, Jones, Gentry, large Fry, Rice and small Fry Surveys. The Dement, Egbert and Clarkson 1/3 leagues are a three-survey block surveyed by Henry Trott on September 21 and 22,1838. Next were the two Wood Surveys made by Henderson in March, 1840, followed by the Gentry and Jones Surveys by Bringhurst on August 3, 1845. Bringhurst also surveyed the Rice, the large Fry and the small Fry on May 27, 1847, which is the last surveying done on this group of senior surveys. The other group will be found at the opposite end of the map and consists of the William Francis and the Bowman Surveys. These two sets of senior surveys do not call to adjoin and do not adjoin.

Subsequently, in 1875, surveyor C. E. Davis laid in Section 55, calling for it to begin at a stake 330 varas north of the southwest corner of the Rice Survey; to go north with the west lines of the Rice, large Fry and Gentry Surveys 3193 varas to the southeast corner of Section 56; thence west to the Francis; and then counterclockwise with the Francis and Bowman to the point of beginning. Davis also surveyed Sections 13, 14 and 56 on the same day, but his field notes of these surveys were excluded from the jury.

The boundary controversy stems in the last analysis from the fact that there is considerable uncertainty as to the true east-west location of the Clarkson Survey, which is about two and one-half miles east of Section 55. While there is no dispute as to the location of the north and south lines of any of the above mentioned surveys, there are and have been for many years two basic and conflicting theories for placing the east and west lines of the Clarkson on the ground. The stakes and other monuments mentioned in the field notes of Trott, Henderson, Bringhurst and Davis as marking the corners of the tracts they surveyed have not been found. Respondent would place the southeast corner of the Clarkson at an iron pipe and stone in the north line of the Dement 215 varas east of the west prong of White Oak Bayou, and thus give controlling effect to one of the calls in Trott’s field notes. Petitioners contend that the Dement-Egbert-Clarkson system must be reconstructed by course and distance from the southeast corner of the Dement.

The map mentioned above shows how the location of the surveys in the area are affected by adoption of each of these two theories. It also shows the occupied east and west lines of the different surveys. There is enough distance between the occupied east line of the Egbert and the occupied east lines of the Francis and Bowman to lay in all intervening surveys in accordance with their field notes and without conflicts or overlaps if petitioners’ theory for locating the Clarkson is accepted as sound. If the southeast corner of the Clarkson is placed at the iron pipe and stone as contended by respondent, there is: (1) an excess of approximately 300 varas between the occupied east and west lines of the Egbert; and (2) a shortage of approximately 300 varas between the true west lines of the Gentry, large Fry and Rice on the one hand and the occupied east lines of the Francis and Bowman on the other.

Neither of these theories has been followed consistently by those who located the present occupation lines of the various surveys in the area. Respondent’s contention is supported by the generally recognized and occupational location on the ground of the Clarkson, Jones and two Wood Surveys. Petitioners’ theory apparently was adopted by those who laid out the present occupation lines of Section 14, Section 55 and the Rice. It was also accepted by Mabry, the State Surveyor who did extensive work in the area during 1889, but most of Mabry’s reports were excluded from the jury. At the time respondent instituted his suit, therefore, the following was the situation with respect to the various surveys as used on the ground: Section 55, Section 14, the Rice, Jones, Clarkson and two Wood Surveys had approximately their full east-west distance' (2) there was an east-west excess of about 300 varas in the Egbert; and (3) there was an east-west shortage of some 300 varas in the Gentry, small Fry, large Fry and Section 13.

The boundary dispute was resolved in respondent’s favor by the jury’s findings in response to Special Issues Nos. 1 and 2 that: (1) the northwest corner of the Clarkson Survey is at point “A” on the map; and (2) that the west lines of the Gentry and large Fry Surveys are the line “6 through 5 to 9” as shown on such map. We assume without deciding that there is evidence..to support these findings.

The jury found against petitioners on the twenty-five year statute of limitation, but in response to Special Issues Nos. 3, 4 and 5 found in their favor under the three, five and ten year statutes. Since the jury also determined that the strip in question is located in the Gentry and Fry, the Court of Civil Appeals held that petitioners had failed to show title or color of title as required by the three year statute, Article 5507, Vernon’s Ann.Tex.Civ.Stat., because it concluded that under the record there could be no overlapping of Section 55 into the Gentry and Fry. It also held that the payment of taxes on acreage rendered as part of Section 55 would not support a claim of title under the five year statute, Article 5509, Vernon’s Ann.Tex.Civ.Stat., to land which, under the jury findings, is actually part of the Gentry and Fry. As we view the case, it is unnecessary for us to consider any of these questions.

Petitioners’ claim under the ten year statute, Article 5510, Vernon’s Ann.Tex. Civ.Stat., is based on possession and use of the property by three tenants. The first of these tenants was Beeler, who ran cattle on the land from 1918 until some time in 1935. There is a break in the possession between Beeler and the next tenant, Holt. Beeler left the land in 1935, and Holt went into possession in the Spring of 1938. Paddock used the property during part or all of the intervening three years, but it does not appear that he was then holding through and under H. T. Williamson. The Court of Civil Appeals concluded that there is a “floating” break of one year in petitioners’ adverse possession through Beeler, and that Holt’s possession cannot be tacked to that of Beeler. Both Beeler and Holt used the land for grazing livestock, and respondent contends that the enclosure within which they had possession was merely incidental and therefore that their possession was not adverse within the meaning of the limitation statutes. We do not attempt to decide any of these questions but begin with Paddock when he again moved his .cattle into the pasture after Holt vacated the premises.

Holt leased Section SS from H. T. Williamson for the period from 1938 through 1942. He left on January 1, 1942, and Paddock began using the premises on April 13, 1942. Subject to two contentions urged by respondent in support of the trial court’s action in disregarding the jury’s finding in response to Special Issue No. 5, there is evidence to support the conclusion that H. T. Williamson and Mrs. Anderson, through their tenants, held peaceable and adverse possession of the land in question for a period of a little over ten years beginning with Paddock’s entry in 1942.

Paddock obtained his first lease from Williamson on January 14, 1943, but petitioners offered the testimony of Paddock’s foreman, Atkins, to show that Paddock was holding under Williamson during 1942. Atkins testified that his employer instructed him to begin using the Williamson pasture. According to the witness, Paddock also stated that it was his pasture, that he had subleased it from Holt for the remainder of 1942, and that after 1942 he would lease it directly from Williamson. The Court of Civil Appeals concluded that this testimony is hearsay and without probative force to show that Paddock was holding through and under Williamson during 1942. Paddock died prior to the trial, and petitioners contend that his statements are admissible as declarations against interest and also as verbal acts of a person in possession of land.

There are a number of cases holding that a statement by one in possession of land indicating that he held as the tenant of another is admissible as a declaration against interest. The courts there reasoned that since possession is prima facie evidence of fee title, a declaration that the possessor had only the rights of a tenant was against his interest in that it lessened the quantity of the estate which the law would otherwise presume he had. See Peaceable v. Watson, 4 Taunt. 16, 128 Eng. Rep. 232; Doe v. Green, Gow 225, 171 Eng.Rep. 893; Carne v. Nicoll, 1 Bing. N.C. 430, 131 Eng.Rep. 1183. This approach has been criticized by at least one eminent authority, who pointed out that the ordinary man would not know that his occupancy raised a presumption that he was the owner of the premises in fee simple. See Morgan, Declarations Against Interest in Texas, 10 Tex.Law Rev. 399. Be that as it may, Paddock’s statement is not admissible as a declaration against interest even under the cases just cited, because he was not in possession of the land at the time.

Other courts hold that the declarations of an occupant of land that he was the tenant of another are admissible as part of the res gestae, accompanying the act of possession and explanatory of it, to prove under whom he held. See West v. Price’s Heirs, 2 J. J. Marsh. (Ky.) 380, 381; Clements v. Wheeler, 62 Ga. 53; Brolaskey v. McClain, 61 Pa. 146; Richmond Cedar Works v. Foreman Blades Lumber Co., 4th Cir., 267 F. 363. The early Texas cases fall into this category, and we have found no recent decisions here or elsewhere dealing with the problem. See Harnage v. Berry, 43 Tex. 567; Hooper v. Hall, 30 Tex. 154; Wallace v. Wilcox, 27 Tex. 60. In Dunn v. Taylor, 102 Tex. 80, 113 S.W. 265, it was said that the declaration of an occupant of land is admissible “to show the relation of landlord and tenant,” but no attempt was made to explain why that is so.

Legal writers generally agree that the term “res gestae” is so vague and imprecise in its meaning and has been used by the courts so indiscriminately that it should be abandoned entirely. There are various types of utterances that are said to be admissible as res gestae. For example, spontaneous declarations made under the stress of physical shock or nervous excitement are admitted as a true exception to the hearsay rule to prove the truth of the facts stated. Another type of utterance which courts have frequently referred to as res gestae is the so-called verbal act. Here the declaration is not hearsay at all, because it is not offered to prove the truth of the facts asserted. It is received because the mere utterance of the words has legal significance without regard to whether they are true. See Wigmore on Evidence, 3rd ed. 1940, §§ 1745, 1766, 1767.

Declarations by an occupant of land are clearly admissible as verbal acts when ■offered solely for the purpose of what Professor Wigmore calls “coloring the occupation.” Statements by one in possession importing á claim of title in himself are thus received “as verbal parts of his act of occupation, serving to give it an adverse •color; while his declarations of disclaim, conceding another’s title, are equally receivable as giving it the contrary color.” Wigmore § 1778. The mere fact that the words were uttered, without regard to whether they are true, tends to show that the occupancy was or was not adverse.

Atkins’ testimony that Paddock ■said he had subleased from Holt is not admissible, however, to prove that there was, in fact, a bilateral transaction in which Holt leased to Paddock. If offered or considered for that purpose, it clearly constitutes hearsay and does not fall within any sound exception to the hearsay rule. The courts have made little effort to rationalize their holding that the declarations of an occupant ■of land might be received to show under whom he held. This rule may have developed as a concession to the practical difficulty of obtaining proof of the.facts in any other manner. It may be an unintentional perversion of the doctrine that admits declarations of the occupant for the purpose of coloring his possession. In any event the rule became firmly embedded in our Anglo-American jurisprudence many years ago, and has been accepted by almost every court in which the question has arisen. In deference to the Texas decisions cited above, therefore, we hold as a matter of substantive law that in a case such as this where title by prescription is in issue, the possession of land by an occupant who processed to hold under another person will, in law, be the possession of the latter if the purported landlord claimed to own the property at the time and there is no evidence that the occupant was, in fact, holding through or under some third person. Apparently that is what Professor Wigmore meant when he said that “[s]uch declarations signify that the declarant’s acts of occupation were done on behalf of his alleged landlord and such acts will therefore be acts of possession for the landlord, provided only that the latter adopted them, and his then claim of title would suffice as such an adoption.” Wigmore § 1778. See also West v. Price’s Heirs, supra. Once this conclusion is reached, it necessarily follows that Atkins’ testimony is not hearsay but was admissible as proof of a relevant verbal act on the part of Paddock.

As indicated above, Paddock’s first written lease from H. T. Williamson was dated January 14, 1943. It was for a term ending December 31, 1945, and the leased premises were described in the instrument as follows:

“All of the certain tract or parcel of land lying and being situated in Harris County, Texas, and known and described as 609 acres out of Section 55, Block 3, H. & T. C. R. R. Co. Survey, Patent 360, Vol. 106, Certificate No. 28/2069.”

There were written leases or written extensions of leases for each year of Paddock’s possession thereafter, and in each instrument the land was described substantially as set out above. None of them suggest on their face that the lessor intended to lease any land beyond the limits of Section 55.

Under the jury's findings in response to Special Issues Nos. 1 and 2, the strip in controversy lies in the Gentry and Fry Surveys. Since it is not part of the property covered by the legal description in the leases, respondent insists that Paddock’s possession could not inure to the benefit of Williamson. He cites Niendorff v. Wood, Tex.Civ.App., 149 S.W.2d 161 (writ ref.); Williams v. Fuerstenberg, Com.App., 23 S.W.2d 305; Weems v. Hawkins, Tex.Civ.App., 278 S.W.2d 439 (writ ref. n. r. e.); and Brownlee v. Landers, Tex.Civ.App., 166 S.W.2d 734 (no writ). These cases recognize and apply the general rule that a landlord who claims under the statutes of limitation by virtue of the possession of a tenant is deemed to have possession only of the land which, as between him and the tenant, the latter had in lawful possession under the terms of the lease contract. See also West v. Price’s Heirs, supra; Holmes v. Turners Falls Lumber Co., 150 Mass. 535, 23 N.E. 305, 6 L.R.A. 283; Deregibus v. Silberman Furniture Co., 121 Conn. 633, 186 A. 553, 105 A.L.R. 1183; Umhau v. Bazzuro, 76 U.S.App.D.C. 394, 133 F.2d 356.

In dealing with this question, our courts as well as those of other jurisdictions have said that adverse possession, to ripen into title, must be such as would expose the claimant to some liability for what was done by him or under his authority during the limitation period. This rather sweeping statement is not entirely accurate. In Cobb v. Robertson, 99 Tex. 138, 86 S.W. 746, 122 Am.St.Rep. 609, the land had been leased by J. M. Robertson to Willard and Sorelle, who transferred their interest in the unexpired lease to Logan. Robertson refused to assent to the assignment, but Logan entered into possession and paid rent to Sorelle, who paid it to Robertson. Robertson later conveyed to Cobb, and the latter asserted title under the ten year statute by virtue of Logan’s possession. The following excerpt from the opinion is relevant here:

“It is contended that Logan never became the tenant of Robertson, and was therefore never the tenant of Cobb, because Robertson never consented to the assignment to Logan of Willard and Sorelle’s lease. A contract of leasing or renting is not essential to the holding possession by one for another. If the tenant enter under the title of another, and hold by permission or at sufferance, he is estopped to deny such title, and the possession, in law, is that of the owner. The authorities to be cited abundantly show this. The nature of the arrangement by which the possession is taken or held is immaterial to such an inquiry as this. Willard and Sorelle held under lease from Robertson, and not only they, but all who entered under them, were subject to the estoppel, and became the tenants of the lessor and his vendees, and so continued as long as they were permitted to remain. Whatever may have been the other rights of the landlord and tenants as between themselves, the possession, while it was permitted to last, was that of the landlord.’’

The evidence in the cases upon which respondent relies showed no connection whatsoever between the lessor and his tenant with respect to the land in controversy. It did not even appear that the lessor had ever claimed to own the property, and there was nothing to suggest that the tenant’s occupancy was under and by virtue of the lease. The situation here is quite different. W. I. Williamson held under a deed from J. F. Robinson dated September 3, 1907, in which the land conveyed was referred to as H. & T. C. Ry. Co. Survey No. 55 and was then described by metes and bounds. The metes and bounds description, which calls for monuments that can be found on the ground, covers the land identified on the map by the numbers 15 to 20, inclusive. It also calls for the northwest corner of the Rice, the northwest corner of the large Fry, and the west line of the Gentry to be in the line from 17 to 18. The deed thus purported to convey the property now in controversy as part of Section 55, and substantially the same description was used in the conveyance from the H. & T. C. Railway Co. to J. F. Robinson dated May 22, 1901.

The outside boundaries of the land described by metes and bounds in the Williamson deed have been fenced for many years, and the property enclosed by the fences has been generally known as the Williamson pasture. Beeler testified that “we termed it the Williamson tract or Section 55 or Satsuma pasture.” The evidence indicates that Beeler also held under written leases in which the leased premises were described as part of Section 55. In 1930 while he was in possession, a neighbor tore down part of the east fence. Beeler notified Williamson, and a justice court proceeding was instituted in Beeler’s name for recovery of possession. The case proceeded to judgment, and the fence was then rebuilt. Several of the Paddock leases obligated the lessee “to maintain the fences around the above described tract,” and there is also testimony that H. T. Williamson displayed a sign on the part of the pasture now in dispute advertising 609.9 acres for sale. The entire pasture was used by tenants of W. I. Williamson, H. T. Williamson, and Mrs. Anderson for almost all of the thirty-five years preceding the institution of this suit.

In our opinion the jury was entitled to conclude from the evidence that Mrs. Anderson, her predecessors in title and each of their tenants thought that Section 55 was the land enclosed by the fences and generally known as theWilliam-son pasture and believed that such pasture was covered by the , several leases. The Williamson and Niendorff cases are therefore not controlling. Where it appears that both parties understood that the right to occupy certain premises passed under the lease, the tenant’s occupancy thereof will be treated as that of his lessor even though such premises were not covered by the legal description in the lease. Capps v. Merrifield, 227 Mich. 194, 198 N.W. 918. See also Abatiell v. Morse, 115 Vt. 254, 56 A.2d 464; Coggins v. Shilling, 30 N.J.Super. 26, 103 A.2d 171. We hold that the trial court should have rendered judgment for petitioners on the basis of the jury’s answer to Special Issue No. 5.

Respondent had a number of cross-points in the Court of Civil Appeals, and he calls them to our attention in his brief here. Cross-Points Nos. 1 to 4, inclusive, are rendered immaterial by the conclusions expressed above. No reversible error is shown by Cross-Points Nos. 7 and 8, which present questions of law, and they are overruled. The remaining two cross-points assert, in effect, that the finding of the jury in response to Special Issue No. 5 is contrary to the overwhelming weight of the evidence. This question lies within the exclusive jurisdiction of the Court of Civil Appeals, and the cause must be remanded to that court in order that it may consider the same. If Cross-Points Nos. 5 and 6 are sustained by the intermediate court, it will remand the cause to the district court for a new triaL Counsel for petitioners has stated that the-lease and option of Herman L. Sanders and' Gelta Realty Corporation terminated after the filing of the application for writ of error, and that Mrs. Anderson has since prosecuted the appeal in her sole behalf. Assuming that a proper showing to that effect-is made, the Court of Civil Appeals will, if' it overrules respondent’s Cross-Points Nos. 5 and 6, either render judgment for Mrs. Anderson or remand the cause to the district court with instructions to do so.

Petitioners’ motion for rehearing is-granted, and our former judgment in this-cause is set aside. The judgments of the-courts below are reversed, and the cause is remanded to the Court of Civil Appeals-for further proceedings consistent with this-opinion. Respondent will have fifteen days-from this date within which to file a motiom for rehearing.

SMITH, J., dissenting.

SMITH, Justice

(dissenting).

I respectfully dissent. Although a thoroughly considered opinion has been, heretofore delivered by this court sustaining-the respondent upon every material question, this court now reverses itself on motion for rehearing to the extent of holding-in favor of the petitioners on their claim, that they had perfected title under the-Texas ten-year limitations statute, Article 5510, Vernon’s Annotated Civil Statutes.

The present opinion recognizes that the respondent is the owner of the land in controversy and would he entitled to recover the same hut for its conclusion that the hearsay testimony of Atkins, Paddock’s foreman, bridges the gap in the possession between January, 1942, and January, 1943, the date of the lease contract between Williamson and Paddock. This court’s former opinion, in which I concurred by written opinion, held:

“In view of the ‘floating’ break of one year in Beeler’s possession, the break of about three years between Beeler and Holt, and the break of slightly more than a year between Holt and Paddock, the trial court properly held as a matter of law that petitioners had failed to prove any ten consecutive years of adverse possession." (Emphasis added.)

The Court still adheres to its original view that Petitioners cannot rely upon the possession of Beeler, but begins the claimants’ ten-year possession with the Holt possession and the Paddock possession “when he [Paddock] moved his cattle into the pasture after Holt vacated.”

It is my position that the Atkins’ testimony does not fill in the break between Holt and Paddock referred to in the Court’s November, 1963, opinion. The Court neglects to note that Paddock had grazed his cattle on the land during the interim between the possession of Beeler and that of Holt. There is no evidence of privity of ■possession. The attribute of peaceable and .■adverse possession which is held by “different persons successively” is that “there ■must be- privity of estate between them.” Atkins testified that after Beeler left “we -started using, Paddock Ranch started using ■that.” “At that time LH 7 Ranch, Mark .-and Paddock used it.” When Atkins' was asked if “the Paddocks move(d) in shortly .after he (Beeler) left?” Atkins said “he • didn’t remember how long,” “not very long” .and Atkins said further “Paddock used it between Beeler and Holt.” The land was fenced then. The fence would turn cattle. This is the extent of Atkins’ testimony about the “adverse possession” of Williamson for the years 1936, 1937 and the early part of 1938. Holt left, and apparently gave up the premises, in January, 1942. Sometime before April 13, 1942, according to Atkins, Paddock instructed his foreman, Atkins, to begin using the Williamson pasture. Paddock also stated to the witness, Atkins, that it was his pasture after January 10, 1942; that he, Paddock, had subleased from Holt for the remainder of that year, and that after 1942 he would lease it from Williamson. This is not evidence of a tenancy relationship between Williamson and Paddock. This testimony fails to establish that the Petitioners have discharged their burden of showing affirmatively the facts with reference to their use of the land during the year, 1942. See Bowles v. Watson, Tex.Civ.App., 245 S.W. 120, 121, no wr. hist.; Mhoon v. Cain, 77 Tex. 316, 14 S.W. 24 (1890); Orsborn v. Deep Rock, 153 Tex. 281, 267 S.W.2d 781 (1954); Moore v. Wooten, Tex.Com.App., 280 S.W. 742 (1926); Id., Tex.Com.App., 283 S.W. 153; Urschel v. Garcia, Tex.Civ.App., 164 S.W.2d 804 (1942), er. ref., w. o. m. This last case was cited with approval by this court in the Orsborn v. Deep Rock case.

Aside from the danger of allowing a witness to testify as to what his deceased former employer said, Atkins’ testimony is not sufficient to support the Williamson claim of limitation by exclusive and adverse possession. The Urschel case reveals that it was a case such as we have here where the claimant’s witness testimony was a pure conclusion of law, and amounted to no evidence of any of the facts of possession. In the Urschel case, the Court said in part:

“In the first place, some gaps in ap-pellee’s possession were sought to be bridged by appellee’s statement that he, ror others for him, ‘took possession,’ ‘went into possession,’ ‘was in possession,’ and the like. Those statements were pure conclusions of law on the part of the plaintiff-witness, and constituted no evidence of possession. 2 Tex.Jur. p. 74, § 38.
“Other gaps in possession were sought to he filled by appellee by testifying that between occupation by lessees he ‘had a man’ there in the pasture to ‘keep up the fences’ around the enclosure. There was no evidence that appellee was cultivating or otherwise actually using the land in the enclosure. It is well settled that the mere maintenance of fences around or other improvements on land, unaccompanied by actual occupancy or open use, does not constitute such adverse possession as will support a claim of title by limitation ; a constructive possession alone is not sufficient. 2 Tex.Jur. p. 82, § 43; Niday v. Cochran, 42 Tex.Civ.App. 292, 93 S.W.1027, writ refused.
* * * ' * * *
“We are of the opinion that this testimony, consisting almost entirely of conclusions of law and generalities of fact, falls far short of that clear and satisfactory proof essential to a showing of such peaceful, adverse, exclusive and continuous possession and use of land as will support a limitation title under the statute. Art. 5510, R.S.1925; 2 Tex.Jur. p. 74, § 38, p. 82, § 43; Moore v. Wooten, Tex.Com.App., 280 S.W. 742; Id., Tex.Com.App., 283 S.W. 153; Murphy v. Welder, 58 Tex. 235; West Production Co. v. Kahanek, 132 Tex. 153, 121 S.W.2d 328; Gibbs v. Corbett, Tex.Civ.App., 292 S.W. 260; Niday v. Cochran, 42 Tex.Civ.App. 292, 93 S.W. 1027. * * * ”

There is no competent evidence that Paddock held under Williamson prior to 1943.

Furthermore, I am of the opinion that the possession of tenants, extending beyond the terms of the written tenant leases, does not inure to the benefit of the Williamsons.

Petitioners cannot recover under the ten-year statute of limitations even though it was established by the evidence that the possession of the tenants Beeler, Plolt and Paddock was for a continuous ten-year period. This for the reason that these tenants went into possession under a written lease agreement which does not describe or include the land in controversy. The testimony shows that possession throughout was no different in character than when it began.

When an owner of land claims under the statutes of limitation by virtue of the possession of a tenant (the situation here) he is deemed to have possession only of that land of which, as between him and his tenant, the latter has lawful possession under the terms of the lease contract. In this case, the Beeler lease for the year 1934, specifically described only Section 55, the exact description being:

“All that certain tract or parcel of land lying and being situated in Harris County, Texas, and known and described as 605.086 acres out of Section 55, Block 3, H. & T. C. R. R. Co. Survey, Patent 360, Volume 106, Certificate No. 28/2069.”

Although only one lease was introduced, it is clear from Beeler’s testimony that he held the land under a written lease. I conclude that his occupancy of the land each and every year was by virtue of the written lease agreement. The tenants in this case held under restrictive leases. Possession of these tenants of the land in controversy, extending as it did beyond the terms of the written leases, did not inure to the benefit of the Williamsons. See 1 Tex.Jur. Ten Year Supp., p. 178, Adverse Possession, Sec. 41a; Williams v. Fuerstenberg, Tex.Com.App., 23 S.W.2d 305; Niendorff v. Wood, Tex.Civ.App., 149 S.W.2d 161, wr. ref.; Brownlee v. Landers, Tex.Civ.App., 166 S.W.2d 734.


author: GREENHILL, Justice.

text:
    William B. WESSON, Petitioner, v. Dorothy GILLESPIE, Respondent.
    No. A-9855.
    Supreme Court of Texas.
    Oct. 7, 1964.
    Rehearing Denied Nov. 4, 1964.
    Ewing Clagett, Fillmore, Schaeffer & Fillmore, Wichita Falls, for petitioner.
    Mock, Banner & McIntosh, Wichita Falls, for respondent.
   GREENHILL, Justice.

This is a slip and fall case. The plaintiff, Mrs. Dorothy Gillespie, tripped over a threshold at night going out of the dimly lighted 8-Ball Lounge in Wichita Falls. She was a regular customer and had been in and out of its door and over the threshold at least 500 times. Trial was to a jury which found that the defendant negligently maintained the threshold and that this was a proximate cause of plaintiff’s injury; that defendant did not fail to properly light the threshold; that defendant failed to provide a handrail, but that this was not a proximate cause; and that plaintiff did not fail to keep a proper lookout. The trial court disregarded the jury’s answers to those issues which (1) found that defendant negligently maintained the threshold and that this was a proximate cause, and (2) which found that plaintiff kept a proper lookout. That court found that there was no evidence to support the jury’s answers to these issues. Judgment was entered for the defendant. The Court of Civil Appeals at Fort Worth reversed. It rendered judgment for the plaintiff for the $2,900 which were found by the jury to have been the damages suffered by theplaintiff. 370 S.W.2d 918.

Since this is a “no evidence” case and one in which it is asserted that plaintiff should be charged with knowledge of the conditions, the danger, and appreciation of the danger, the evidence must be rather fully developed.

We shall first discuss the evidence regarding the threshold itself. The jury found that it was maintained in a negligent condition. The trial court disregarded the finding as having no support in the evidence.

The 8-Ball Lounge, a beer tavern, had been operated by the defendant Wesson for about 11 or 12 years. It had been built in 1950, and no changes had been made in its one entrance. The front steps and the concrete threshold were just as they had always been. There was no evidence that there had been any change in the lighting. There were two steps up to the door which closed against the threshold. The entrance is level except for the threshold. There is a concrete strip at the door. It is level on both sides but rises gradually or is beveled to a small point in the center.

The defendant operator testified that the threshold was 3i/£" to 4" wide and extended across the entrance. Plaintiff’s witness Denver Sharp, companion of the plaintiff who was in the lounge with her, agreed with that estimate. He considered this to be narrower than other thresholds by y¿' to 1". He did not purport to be an expert witness. Pictures in evidence show the entire concrete strip, with a. tape measure laid across it, was about 8" wide. The portion which slants up from the inside floor to a point and then levels out is shown to be approximately 4" wide. The defendant testified that it is thick (or high) and beveled on each edge. Sharp said it was 1" to \y2" high. He regarded this as too high and said it did not slope as much as what he considered to be. the usual threshold. The pictures in evidence with yardsticks placed alongside the threshold, show it to be between and 1" in elevation. They also show that the concrete-strip, including the threshold, is so situated, that a person leaving the tavern would ordinarily step on it before stepping down to-the outside step. The floor inside the-threshold is level and covered with asphalt, tile. There is no inside step up or down into the tavern. The only uneven place is-the threshold itself.

The defendant testified that in the years-he had operated the 8-Ball, no one [to his-knowledge] had ever tripped over the threshold before. Between 80 and 100 people came in the 8-Ball every day. He had. never heard of anyone tripping or falling,, and no such accident had ever been reported to him.

The plaintiff’s witness Denver Sharp, who had been with Dorothy Gillespie in the 8-Ball the night she was injured, testified that the threshold was just a rise or hump in the floor; that the hump in the threshold was too high. But there was no evidence that he had ever tripped over it, and he usually went to the 8-Ball every night.

Essie Johnson had been a waitress at the 8-Ball some six months when the plaintiff fell. She had never heard of anyone tripping over the doorway, going in or out. She had repeatedly used the door and had never stumbled.

A former employee, Joyce Crane, said that she had seen six or seven customers trip over the threshold and that she had tripped on it once herself. But there was no evidence that she had reported any of these instances to the defendant Wesson.

The plaintiff Dorothy Gillespie had been in and out of the door two to five times a week for four or five years, and she had never stumbled or tripped over the threshold before.

George Davis, the city building inspector, had been asked to inspect the 8-Ball. He did so and did not see anything about the ■door that should be changed or corrected. He did not see anything wrong with it. As far as he knew, the threshold was all right, •and there was not a thing wrong with it. The purpose of the threshold was to keep water [rain] out of the building; and his •opinion was that the threshold sloped up gradually. On cross-examination, he conceded that as a building inspector, he was mainly concerned with the general structure and safety of the building. He was concerned with the steps but did not pay too much attention to the threshold. He also conceded that an impediment Y4' high at the entrance to a dark doorway would pose a hazard for people.

We regard the above evidence as being very slight evidence, if any, of negligence in the maintenance of the threshold. The defendant testified it had been repeatedly used for 11 or 12 years without a slip or fall. The plaintiff had safely used it over 500 times. As an ordinary proposition [assuming proper lighting] the building inspector found no fault with it. The waitress who knew of six or seven people, including herself, who had tripped over it did not testify that she notified the defendant of the incidents.

Nevertheless, we shall assume that there was some evidence to support the jury’s finding and turn to the question of whether the plaintiff was charged with knowledge of the condition, the danger, and appreciation of the danger. The legal problems in this connection are discussed at length in Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368, 369 (Tex.1963); McKee v. Patterson, 153 Tex. 517, 271 S.W.2d 391 (1954); and Houston National Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374 (1948); and they will not be repeated here except as particularly applicable.

The physical facts as to the threshold have been set out above, but the question of the lighting needs to be developed before discussing the “no duty” cases set out in the Halepeska opinion. It is assumed that the ■condition of the threshold would have been open and obvious to Mrs. Gillespie after 500 exposures to it if she had repeatedly crossed it in the daylight, and that she would be charged in law with knowledge and appreciation of the danger. Marshall v. San Jacinto Building, Inc., 67 S.W.2d 372 (Tex.Civ.App.1933, writ refused); Hausman Packing Co. v. Badwey, 147 S.W.2d 856 (Tex.Civ.App.1941, writ refused). Her testimony was that she got off work about 8:30 p. m. and frequently went to the 8-Ball for the evening. There is no testimony that she never went to the 8-Ball in the daytime, nor is there testimony that she did.

There was little illumination inside the 8-Ball. The tavern was 20 feet by 30 feet in size. The central light was an illuminated Schlitz beer advertisement, which a waitress described as “big and round like a globe.” The globe had a clear glass bottom, and it gave off some light. There was a rather dim blue neon sign over the bar, some 30 feet from the front door, and an electric clock surrounded a neon light. There was light from the “juke boxes” bright enough to see the records and the lists of records to choose from. There were lights in the cigarette-vending machines. Each booth had an individual phonograph record-selecting device, and each such device had a small light in it.

The plaintiff’s witness Denver Sharp testified that it was relatively dark inside; that it was not brightly lighted. The plaintiff’s witness Joyce Crane, a former 8-Ball waitress, said it was very dark in the 8-Ball. The defendant Wesson admitted that it was a little shady inside, but “you could see just as well as you need to.” The plaintiff Dorothy Gillespie testified that you could not read inside the 8-Ball unless you put the reading material up against one of the juke boxes. She conceded that nobody went to the 8-Ball to read.

Outside of the 8-Ball there were many lights. Directly over the door and some 18" above it was an open white 60-watt bulb which was burning. It stood out from the building “quite a way.” There is a dispute in the testimony as to whether the light from that light bulb illuminated the threshold beneath it when the door was opened. The defendant said it did. The plaintiff did not remember the outside light: “I didn’t pay much attention to it.” Plaintiff’s witness Denver Sharp at first testified that the light did not shine on the threshold, but on cross-examination he said he couldn’t say; that he just did not notice closely. The next night after the accident, he had gone back to the 8-Ball and had looked at the threshold. He had that night gotten, from observation, the approximate dimensions of the threshold. It was brought out on cross-examination that he was some six feet tall and had been able to see the threshold at night [with that light] well enough to get the approximate dimensions. He did not use a flashlight to look at it.

In addition to the 60-watt globe, there were lights “all around” outside. There was a string of neon lights, several colors, around the top of the building. There was an illuminated “8-Ball” sign; and over the door there was a “Zippo Light,” an inclined pole with IS or 20 30-watt bulbs that flashed alternately.

The jury found that the defendant did not fail to maintain that amount of illumination on the threshold in question as would have been maintained by an ordinary prudent person in the exercise of ordinary care. No objection is shown to have been made to the submission of the issue. There was no point in the plaintiff’s brief in the Court of Civil Appeals attacking that finding, and there is none here.

The pertinent testimony regarding the plaintiff’s knowledge of the condition and the danger, or her exposure to it may be summarized as follows: she testified that she had been in and out of the 8-Ball two or three times a week for four or five years. In answer to her own counsel’s question, she said the number of times she had been in and out of it would be “an astronomical figure.” She said there was a hump at the door and that the distance down to the first step was pretty far. It was some 9" down to the first step. But she admitted that the steps were just like they had always been. Then referring to the steps or to the entrance, the following questions and answers were then stated on cross-examination:

“Q. Has it always been dangerous ?
“A. Yes, sir.
“Q. And you so considered it?
“A. Yes, sir.
“Q. But you kept using it anyway?
“A. Yes, sir.”

On the evening of the accident, Mrs. Gillespie got off from work about 8:30 p. m. and proceeded to the 8-Ball. She entered without difficulty. She went with Denver Sharp, who worked where she did, and there they joined Sergeant Whitey Still-man. She had a “red draw” (beer with tomato juice in it). About 9:30, she left the 8-Ball [without difficulty] to meet a friend in front of another lounge. She came back into the 8-Ball about 10 p. m. and had two or three more “red draws.” About 11:40 p. m. she decided to leave. She said on going out that she walked in an ordinary nonhurried manner to the front door and pulled the door open. The door opened to the inside. She said she did not stumble as she opened the door, but she tripped on the door sill or the hump on top of the threshold. She hung her heel, lost her shoe, and fell out the door onto the sidewalk, breaking her wrist. She got up without assistance and walked to her car. Sharp and Stillman later took her to a hospital.

She said she left the 8-Ball because she got bored. The men she was with would not leave; they wanted to drink some more beer. So she left by herself. Denver Sharp testified that he had called her a taxicab. The waitress Essie Johnson said that when she went to serve “them” a drink, the plaintiff and Sergeant Stillman were having an argument, and that the plaintiff got up and rushed out of the tavern. The defendant Wesson said that the plaintiff was practically running when she left. He testified, however, that she was not noticeably intoxicated. (The jury found that she did not fail to keep a proper lookout.)

If we consider that the testimony of the plaintiff that “it had always been dangerous; that she so considered it; hut she kept on using it” referred to the entrance including the threshold, then the case is simple. By this statement, she admitted that she knew of the condition, knew it was dangerous, and appreciated the particular danger. Notwithstanding this knowledge and appreciation, she continued to use the entrance. She could not then recover. McKee v. Patterson, 153 Tex. 517, 271 S.W.2d 391 (1954).

That testimony came directly after counsel had been cross-examining the plaintiff about the steps. So plaintiff’s counsel insists that it was the steps that she had always considered dangerous. But the questions were about “it” and not “they” or “them.” If we treat the testimony as referring only to the steps, then we come to the question as to whether the plaintiff knew of the condition of the threshold, realized it was dangerous and appreciated the danger. No issues were submitted to the jury on these questions. The Court of Civil Appeals reversed the judgment of the trial court and rendered judgment for the plaintiff. It did so because it considered that the burden was upon the defendant to request them, notwithstanding the fact that the burden of proof is upon the plaintiff, as part of the plaintiff’s case, to negative “no duty” in the occupier-invitee situations. Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.1963). The Court of Civil Appeals then considered that the defendant had waived this “defense” for failure to request issues thereon, or to object to the charge given by the court because of their omission.

Our examination of the transcript shows that the defendant did request several issues including in substance the following: Was the front door area including the threshold not in a safe condition; was it not in a reasonably safe condition; did the entrance not present a dangerous condition; was the condition of the sill across the threshold open and obvious; was it open and obvious to an ordinary prudent person; did the entrance not involve an unreasonable risk of harm to the plaintiff’s safety; did the plaintiff know of the condition; should she have known of it in the exercise of ordinary care, and was this a proximate cause. All of these requested special issues were refused. There were no requested issues on knowledge of the danger or appreciation of the danger. Upon whom was it incumbent to request these issues? Assuming, without deciding, that the burden was on the defendant to request the “no duty” issues, it could be well contended that he did request a part of the cluster of issues. He requested issues as to whether there was a dangerous condition and whether plaintiff knew of the condition. Having requested a part of the cluster of issues, was it the duty of the court to submit the requested issues, shifting the burden to the plaintiff to object to the incomplete submission? In view of our disposition of the case, however, it is unnecessary for use to decide these difficult special issue matters on the submission of a “no duty” case.

The holdings of this Court are that ordinarily a plaintiff-invitee cannot recover if he knows of the condition, realizes the danger, and appreciates the danger, or is charged in law with such knowledge, realization, and appreciation. Halepeska v. Callihan Interests, Inc., supra; McKee v. Patterson, supra; Houston Natl. Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374 (1948).

In the Adair case, this Court assumed that the dangerous condition was not open and obvious and that the stairs upon which Mrs. Adair fell were not properly lighted. Nevertheless, Mrs. Adair had been upon the stairs many times, perhaps including many times when the light was good. She denied knowledge of the dangerous condition or the danger. But because of her many exposures to the condition, this Court charged her with knowledge, realization and appreciation of the danger.

In a later case, this Court said in Triangle Motors v. Richmond, 152 Tex. 354, 258 S.W.2d 60 (1953), that it was not the philosophy of Adair that one trip through a hall of dangers which are not open and obvious would relieve the owner of his duty to eliminate the danger or to warn. In the case at bar, however, the plaintiff had been, by her own admission, across the same threshold “an astronomical number of times”; at least 500. She tripped on her fourth exposure that same night, going out of (not coming into) the tavern. The jury found that the owner did not fail to properly illuminate the threshold. The condition was static and part of the permanent construction. It was so situated that unquestionably she had stepped on it, or deliberately stepped over it, on most of her departures from the 8-Ball. In any event, while as we said in Triangle Motors that one exposure to a danger may not relieve the owner, there must be some limit to the number of times when a person exposed to a dangerous condition will be charged with knowledge of the condition and knowledge and appreciation of the danger. If it were only a few times, we would have a different problem. But two to five exposures a week for four or five years under the same conditions, in our opinion, must fall within the area of charged knowledge and appreciation. We hold that it does.

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


author: WOODLEY, Presiding Judge.

text:
    Jimmy Elwin NEWTON et al., Appellants, v. The STATE of Texas, Appellee.
    No. 37133.
    Court of Criminal Appeals of Texas.
    Oct. 21, 1964.
    Robert B. Billings, Dallas, for appellants.
    Henry Wade, Dist. Atty., Ben F. Ellis and C. M. Turlington, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

This is an appeal by a surety in a bond forfeiture case.

No brief has been filed in this Court as ■required by Rule 414, Rules of Civil Procedure, which is applicable in bond forfeiture cases. Art. 866 Vernon’s Ann.C.C.P.

Failure to comply with the rule mentioned authorizes dismissal of the appeal. Rule 415 R.C.P.; Sherrill v. State, Tex.Cr.App., 375 S.W.2d 721, and cases cited under Note 1, Art. 866, V.A.C.C.P.

The appeal is dismissed.


text:
    Jimmy Elwin NEWTON et al., Appellants, v. The STATE of Texas, Appellee.
    No. 37134.
    Court of Criminal Appeals of Texas.
    Oct. 21, 1964.
    Robert B. Billings, Dallas, for appellant.
    Henry Wade, Dist. Atty., Ben F. Ellis and C. M. Turlington, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

This is an appeal in a bond forfeiture case.

There is nothing in the record showing that a brief has been filed in this Court as required by the Rule 414, Rules of Civil Procedure.

Failure to comply with such rule will result in the dismissal of the appeal. Rule 415 R.C.P.; Sherrill v. State, Tex.Cr.App., 375 S.W.2d 721, and cases cited.

The appeal is dismissed.


text:
    Ex parte William T. HIGGINBOTHAM.
    No. 37451.
    Court of Criminal Appeals of Texas.
    Oct. 21, 1964.
    William T. Higginbotham, pro se.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

This is an original application for writ of habeas corpus by which the petitioner seeks his release from the penitentiary on the ground that he was not represented by counsel when he waived a jury and pleaded guilty before the court

On January 30, 1964 the petitioner entered his plea of guilty in Cause No. 686S6 before the Criminal District Court of Tarrant County to the offense of robbery and waived a trial by jury. There being no showing that the defendant was indigent, no attorney was appointed to represent him.

Art. 10a, Vernon’s Ann.C.C.P., provides that before a defendant who has no attorney can agree to waive a jury, the court must appoint an attorney to represent him. This provision is mandatory and applies whether the defendant is indigent or not. Failure to comply renders the conviction void. Ex parte Rawlins, 158 Tex.Cr.R. 346, 255 S.W.2d 877; Ex parte Ross, 165 Tex.Cr.R. 246, 305 S.W.2d 958.

The petition for writ of habeas corpus is granted; the petitioner is ordered released from the penitentiary and delivered to the custody of the Sheriff of Tarrant County, Texas, to answer the indictment in Cause No. 68656 in the Criminal District Court of Tarrant County.


text:
    Joe David DYCHES, Appellant, v. The STATE of Texas, Appellee.
    No. 37022.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1964.
    W. R. (Ralph) Brown, Mineral Wells (On Appeal Only), for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is burglary; the punishment, enhanced by a prior conviction for a like offense, 12 years.

The evidence offered by the state shows that a Safeway Store in Mineral Wells, which was under the control and management of Thomas Simonton, alleged owner, was burglarized on the night of December 28th, 1963. Entry was obtained through a large hole made in the roof; the office was ransacked and locks on a metal cabinet were broken and money orders and Gold Bond Stamps kept in the locked cabinet were missing.

The appellant’s confession made to the sheriff was offered in evidence. The trial judge, having heard the testimony of the sheriff and the appellant in the jury’s absence, admitted the confession in evidence and no issue was raised before the jury as to its having been voluntarily made.

The confession contains the warning required by Art. 727 C.C.P. and reads in part: “ * * * I was in Mineral Wells on the night of about the 28th of December, 1963 * * *. That night I went into a Safeway Store in Mineral Wells and went in by making a hole in the roof and got into the store through this hole in the roof. On the inside of the store some American Express money order blanks were gotten out of a filing cabinet that was in the office of this store, and some rubber stamps to be used in filling out the Express money orders.”

The prior conviction of the appellant for burglary alleged in the indictment for enhancement of punishment under Art. 62 P.C. was shown by certified copies of the records, identifying fingerprints and expert testimony.

The evidence showing that a burglary was committed, together with the confession of the appellant, is sufficient ■ to sustain the conviction. Lyles v. State, 171 Tex.Cr.R. 468, 351 S.W.2d 886; Estes v. State, 160 Tex.Cr.R. 632, 274 S.W.2d 411.

Reversal is sought upon the ground that, the appellant was denied due process of. law by the failure of the trial court to provide him with counsel “at every stage of the trial and appellate proceedings.”

Trial was had and judgment rendered on April 15, 1964. On the same day notice of appeal was given and affidavit was filed averring that the appellant was indigent and without money or means to employ counsel and prosecute an appeal, and praying that transcript and statement of facts be prepared and filed without cost to him.

Sentence was pronounced April 27, 1964.

The record shows that John Moore, an attorney who resides in Mineral Wells, represented the appellant through his trial and until after the defendant was sentenced and notice of appeal had been given. Mr. Moore then advised the court that he did not feel that he could further represent the appellant and desired to withdraw from the case. The court then, on July 23, 1964, appointed W. R. Brown, also an attorney who resides in Mineral. Wells, to further represent the appellant on appeal, and he has ably performed such service.

It is pointed out that no motion for new trial and no bills of exception were filed and the time for filing had expired prior’ to the appointment of Counsel W. R. Brown.

We are in accord with the view expressed in appellant’s brief that trial counsel, having participated in the trial itself, is best qualified to prosecute an appeal and should not, without good cause, be permitted to withdraw from the case before the record on appeal has been perfected, if then.

We note, however, that the statement of facts approved by the court and agreed to by appéllant’s trial counsel and the district attorney was filed on June 15, 1964 and is properly before this Court, together with the transcript and supplemental transcript, and there is nothing in the record to show or indicate that the appellant was harmed by the failure of his counsel to file motion for new trial or formal bills of exception.

We overrule the contention that the appellant was denied due process of law.

The judgment is affirmed.


author: DICE, Commissioner.

text:
    Charles Edwin BENNETT, Appellant, v. The STATE of Texas, Appellee.
    No. 37110.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1964.
    John M. Anderson, Fort Worth, for appellant
    Doug Crouch, Dist. Atty., Grady Hight, Asst. Dist. Atty., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant was convicted of sodomy and his punishment assessed at fourteen years in the penitentiary.

In view of our disposition of the case, a recitation of the facts is unnecessary.

Trial was on March 11, 1964, upon appellant’s plea of not guilty to the indictment. Appellant was represented by the Honorable Tim Curry, an attorney appointed by the court on March 4, 1964, to represent him upon affidavit being made that appellant was unable to employ counsel.

There appears in the record a written waiver, signed by appellant but not by his counsel, of the ten days allowed counsel under Art. 494, Vernon s Ann.C.C.P.,. to prepare for trial.

Art. 494, supra, which provides for the appointment of counsel, reads in part as follows:

“The counsel so appointed shall have ten (10) days to prepare for trial, unless such time be waived in writing by said attorneys and the accused.”

It is apparent that appellant’s waiver in writing, alone, without the join-der of his counsel, did not comply with the statute and was insufficient to waive the ten days’ time allowed counsel to prepare for trial. Such presents reversible error, as the provisions of Art. 494, supra, are mandatory. Ex parte Gudel, Tex.Cr.App., 368 S.W.2d 775.

There further appears in the record an affidavit filed by appellant’s attorney, praying for a hearing on the question of appellant’s sanity. Such request for preliminary hearing was by the court denied.

While the court’s action is not before us by a proper bill of 'exception and the affidavit is insufficient, we observe that under the provisions of Art. 34, Vernon’s Ann.P.C., appellant would be entitled to a preliminary trial on the issue of insanity upon the filing of a proper affidavit, and upon another trial he should be granted such a hearing. Pickett v. State, 113 Tex.Cr.R. 395, 22 S.W.2d 136; Norford v. State, 116 Tex.Cr.R. 533, 34 S.W.2d 290; Rice v. State, 135 Tex.Cr.R. 390, 120 S.W.2d 588.

The record reflects that over appellant’s timely objection that the same was hearsay, the court permitted the state’s witness Bobby R. Scott to testify and relate what the prosecuting witness told him, upon being questioned, two months after the alleged offense was committed, with reference to the acts and conduct of the man who had molested him on such date. This testimony was admitted on the theory of outcry by the prosecuting witness, who was a young boy, nine years of age.

While, in prosecutions of this nature, statements made by a young child shortly after the offense is committed are often admissible as outcry or as a part of the res gestae, we are unable to agree that, under the facts presented, the statements made by the prosecuting witness in the instant case, giving details of the transaction, were admissible as such. In admitting the testimony, the court erred. Oldham v. State, 167 Tex.Cr.R. 644, 322 S.W.2d 616. An examination of the record does not reflect, as contended by the state, that similar testimony was admitted without objection.

For the errors pointed out, the judgment is reversed and the cause is remanded.

Opinion approved by the Court.


author: WOODLEY, Presiding Judge

text:
    James Claud FLETCHER, Appellant, v. The STATE of Texas, Appellee.
    No. 37117.
    Court of Criminal Appeals of Texas.
    Oct. 21, 1964.

      William C. McDonald, Jr., Fort Stockton, for appellant.
    Harrell Moore, County. Atty., Midland, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge

The offense is drunk driving; the punishment, 30 days in jail and a fine of $100.

The statement of facts is in narrative form. It was approved by the trial judge, counsel for the state and the appellant’s counsel having failed to agree upon a statement of facts.

The appellant presents to this Court a motion praying for the issuance of writ of mandamus directing the trial judge to approve his bill of exception denominated Supplemental Bill of Exception No. 1, which complains of the court’s refusal to approve the statement of facts prepared by the defendant.

We overrule the motion.

The trial judge appears to have acted in accordance with the statute upon the failure of the state and the defendant to agree upon a statement of facts. Art. 759a, Sec. 1(E) Vernon’s Ann.C.C.P.

Had the defendant desired to complain by bill of exception he could have done so by filing his bill with the clerk as provided in Art. 760d V.A.C.C.P.

The evidence is sufficient to sustain the jury’s finding that the appellant drove a pickup truck on a public highway in Midland County, as alleged in the information.

Texas Highway Patrolman K. B. Blanchard testified that he noticed a pickup truck which appeared to- be speeding and he gave chase; that he noticed the pickup weaving back and forth in the two east bound traffic lanes of traffic and stopped it.

He further testified that, based upon his driving, his unsteady walk, the fact that he smelled alcohol on his breath, and his tongue was thick, the appellant, who was the driver of the pickup truck, was, in his opinion intoxicated.

Wayne Merritt, chemist and toxicologist, testified that a urine specimen taken from the appellant was found to contain 0,29 percent alcohol by volume; that such concentration indicated that the person who 'gave it was intoxicated at the time he gave it.

The appellant testified that he was not drunk but admitted that he had four beers— “could have been six” — at a Tavern where he had been for several hours. He called other witnesses who were at the Tavern who testified that he was not drunk.

The jury resolved the issue against the appellant and the evidence is sufficient to sustain the verdict.

By formal bills of exception the appellant presents four claims of error.

Bill No. 1 complains that the trial court erred in admitting in evidence the specimen of urine, over the objection that Officer Blanchard promised the appellant that he would not be prosecuted if the specimen showed him not to be intoxicated, for which reason he gave the specimen. We see no error.

The confession statute is not applicable. Brown v. State, 156 Tex.Cr.R. 144, 240 S.W.2d 310.

The remaining bills of exception relate to the testimony of Wayne Merritt, chemist and toxicologist. Bill No. 2 complains that he was permitted to testify “as to the effect that certain percentages of alcohol would have on the accused.” Bill No. 3 complains of his testimony “as to works and publications not before the court.” Bill No. 4 complains that the state was permitted to re-open its case and allow the introduction in evidence of a blackboard containing drawings and writings indicating the effect of alcohol on the human body about which the witness Merritt had testified. Neither of these bills of exception is sufficient to show error.

The witness Merritt testified that he had a B.S. Degree in Chemistry and had had two years training concerning the effect of alcohol on the human body. As a part of his training he had observed the effect of alcohol on the human body in actual tests he had rim himself on individuals who had consumed alcoholic beverage.

He further testified that in his studies in this field he was familiar with the findings of the National Safety Council and the American Medical Association, and that the results of the tests he had run were in agreement with their findings that all persons are intoxicated who have a concentration of .10 percent alcohol by volume, or more, in their system.

No reversible error appearing, the judgment is affirmed.


author: BELCHER, Commissioner.

text:
    Giles KEMP, Appellant, v. The STATE of Texas, Appellee.
    No. 37098.
    Court of Criminal Appeals of Texas.
    Oct. 21, 1964.

      Jack W. Watson, Stamford, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The offense is driving while intoxicated; the punishment, three days in jail and a fine of $300.00.

A Texas Highway Patrolman testified that immediately- after the appellant got out of a pickup which he had seen him driving upon a public highway, the appellant began cursing, and staggered while walking; that his eyes were glassy, and he smelled the odor of alcohol on his breath. The patrolman expressed the opinion that appellant was intoxicated. Appellant requested a blood test but refused to permit a nurse to remove a blood specimen after he was taken to the hospital, and again refused when a physician arrived. During this time appellant was cursing.

Officer Barnett, who responded to the patrolman’s radio call for assistance, testified that from his observation the appellant was, in his opinion, intoxicated. This testimony was corroborated by that of the County Judge who saw appellant at the hospital after the appellant had requested a magistrate.

The physician who came to the hospital, as appellant wanted a doctor to take a blood specimen but refused when he arrived, testified that in his opinion the appellant was under the influence of alcohol.

The appellant did not testify but called several witnesses who had seen him around 4:30 P.M. before his arrest about 6:00 P.M. They testified that appellant was not intoxicated; that he did not act like a man who had been drinking; that appellant had bought a half pint of whiskey between 4:30 and 5:00 P.M., and had had one drink of the whiskey before his arrest.

Appellant urges reversal on the ground that the following testimony of the trial judge:

“Q. And you feel — I will ask you if you feel in your judicial discretion whether or not it is best that you testify in this case?”
“A. I think so,”

constituted a comment on the weight of the evidence which was of such prejudicial nature that an instruction to the jury to disregard it would not have removed it from their minds.

The evidence reveals that the trial judge responded in person to appellant’s request, made at the hospital, for a magistrate; that he observed appellant at the hospital; heard .him cursing; smelled the odor of alcohol; and, while testifying, expressed the opinion that the appellant was intoxicated.

The testimony of the trial judge brought him within the exception rather than the rule found in Art. 717 C.C.P. that the trial judge is required to testify unless he declares that there is no fact within his knowledge important to the case. In the absence of any objection, and in view of the trial judge’s testimony revealing his knowledge of facts bearing on the case, the contention of appellant cannot be sustained.

Appellant complains of the overruling of his motion for a continuance due to the absence of the witness Garrett, and that he did not have sufficient time to prepare for trial. The record shows that Garrett was summoned as a witness but there is no showing as to why he was not called to testify. No motion for continuance on this ground appears in the record.

A motion for continuance was granted when the cause was first set and called for trial on March 5th. A trial of this case on March 26th resulted in a hung jury. It was then set for trial on April 17th; the appellant was notified of the setting; and no written motion for continuance was then filed; and the case proceeded to trial resulting in the judgment herein.

The contentions urged for reversal on the trial court’s failure to grant a continuance are overruled.

By several bills of exception the appellant complains of jury argument.

The trial court certifies in the bills that no objections were made to the jury argument. The opening and closing arguments of the County Attorney are in the record and there appear no objections to either argument. No error is reflected.

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

Opinion approved by the Court.