text:
    Carl JONES, Plaintiff-Appellant, v. Praley TAYLOR, Defendant-Respondent.
    No. 32196.
    St. Louis Court of Appeals. Missouri.
    March 15, 1966.

      Val Terschluse, St. Louis, for plaintiff-appellant.
    Norbert M. Reker, St. Louis, for defendant-respondent.
   ANDERSON, Judge.

This is an action brought by Carl Jones to recover for damage to his automobile and loss of rental thereon resulting from a collision Retween said automobile which was being driven by Lester Jones, and a motor vehicle being operated by defendant, Praley Taylor. The case originated in the Magistrate Court where it was tried and a judgment for defendant rendered. Plaintiff appealed to the Circuit Court where a trial was had to the Court on an agreed statement of facts. Said trial resulted in a finding and judgment for defendant. Plaintiff has appealed.

The agreed statement of facts upon which the case was tried is as follows:

“Comes now plaintiff and defendant and by their respective counsel consent and agree that the herein cause of action may be.submitted to the Court and tried solely upon the following agreed facts and that judgment may be rendered by this- Honorable Court in accordance with the hereafter stipulated facts:
“1. That plaintiff and defendant agree that Carl Jones was the titled owner of a 1961 Chevrolet automobile on August 2, 1963, which was involved in a collision on that day,
“2. Plaintiff and defendant agree that Lester Jones was the driver of that vehicle on the occasion in question and that he is not related to plaintiff, Carl Jones, although having the same surname.
“3. Plaintiff and defendant agree that both driver of plaintiff’s vehicle, Lester Jones, and defendant, Praley Taylor, were negligent in the operation of their vehicles on the date and time in question, and that as a direct result of defendant’s negligence plaintiff, Carl Jones’ automobile aforementioned was damaged in the total sum of $296.15.
“4. Plaintiff and defendant agree that the vehicle owned by plaintiff herein was used as a taxicab under the name of Marcella Cab Company and that plaintiff as the owner of this vehicle has a verbal agreement with the driver, Lester Jones, that on the days that Lester Jones operates said taxicab that he pays to Carl Jones a flat daily fee of $12.00 per day.
“5. Plaintiff and defendant agree that plaintiff’s vehicle was laid up for repairs for ten rental days causing plaintiff to lose $120.00 in rental fees on said vehicle.
“6. Plaintiff and defendant agree that Carl Jones as owner of the vehicle in question pays the sum of $110.00 per month to the Marcella Cab Company, a corporation, for the use of the franchise name of Marcella Cab Company.
“7. Plaintiff and defendant agree that Lester Jones does not retain control of the taxicab during the hours it is not in use as a taxicab.
“8. Plaintiff and defendant agree that, Marcella Cab Company, refers possible drivers to the owner, Carl Jones, to whom Carl Jones may rent a taxicab if he chooses, and that Lester Jones was one of said drivers, but that owner, Carl Jones, decides who shall be the driver of his vehicle, that Carl Jones selected said Lester Jones, and that he, Carl Jones, may terminate at any time the rental agreement of any of his vehicles with any driver operating a taxicab owned by himself including Lester Jones.
“9. Plaintiff and defendant agree that Carl Jones, plaintiff, does not direct or dispatch Lester Jones for the pick up or discharge of any fares and that this is all controlled by and through the Marcella Cab Company. That Lester Jones retains all his own fares and is not required to account to plaintiff, daily, weekly or monthly, for the receipts taken in by him in the operation of said cab except that Lester Jones pays to Carl Jones a flat daily fee of $12.00 per day.
“10. Plaintiff and defendant agree that Carl Jones, plaintiff herein, does not withhold any Social Security or Withholding Taxes from monies earned by Lester Jones, the driver of the vehicle.
“11. Plaintiff and defendant agree that plaintiff, Carl Jones, is listed as the title owner of the automobile in question in the application by Marcella Cab Company filed with the City of St. Louis for the taxicab franchise owned and operated solely by Marcella Cab Company.
“12. Plaintiff and defendant agree that Carl Jones is not an owner of nor in any way controls the operation of the Marcella Cab Company.
“13. Plaintiff and defendant agree that plaintiff greases, oils and repairs his own vehicle, the one in question, and that it is the driver’s (Lester Jones’, on the day it was being operated by Lester Jones) individual responsibility to furnish his own gas for the operation of the same.
“14. Plaintiff and defendant agree that if the Court finds this case to be a true bailment for hire existing between Carl Jones and his driver, Lester Jones, based on the facts herein stipulated to, then parties hereto agree that a judgment may be entered in favor of the plaintiff and against the defendant for the total sum of $296.15 in damages plus loss of rental in the sum of $120.00 plus the costs of this action.
“15. Plaintiff and defendant agree that if the Court finds the law to be that a bailor for hire is liable to third persons for the actions of the bailee or if the Court fails to find that this is a true bailment for hire existing between Carl Jones and Lester Jones and that the negligence of Lester Jones can be imputed to the plaintiff, Carl Jones, that a judgment be rendered for the defendant against the plaintiff at the plaintiff’s costs.”

On this appeal, plaintiff contends that the a^reed facts show that the relationship between Plaintiff and Lester Jones was that of bailor and bailee’ and since’ under the Missouri Law, the negligence of a bailee cannot be imputed to the bailor, the Court should have found for plaintiff, it being admitted by defendant that he was guilty of negligence which contributed to cause plaintiff’s damage. Defendant contends that the agreement between plaintiff and Lester Jones was not one of bailment, but created the relationship of master and servant; that Lester Jones was acting for his master at the time of the accident; and that he was admittedly guilty of negligence which contributed to cause plaintiff’s damage, which negligence should, under the law, bar recovery by plaintiff. Defendant further contends that plaintiff was engaged in business as a common carrier, and that since a common carrier cannot escape liability for the negligent operation of a vehicle used in furtherance of said business by delegating its operation to an independent contractor, the admitted negligence of Lester Jones must be imputed to plaintiff and bar recovery against defendant even though defendant’s negligence was a contributing cause of plaintiff’s damage.

It is the firmly established law of Missouri that negligence of a bailee in handling the subject of the bailment will not be imputed to the bailor so as to bar a recovery by the latter against a third party whose negligence contributes along with that of the bailee to cause loss to the bailor, unless there is in the contract of bailment some element of agency, master and servant or partnership. Spelman v. Delano, 177 Mo.App. 28, 163 S.W. 300; Norton v. Hines, 211 Mo.App. 438, 245 S.W. 346.

Whenever personal property or a chattel is hired out for the use of the hirer, and exclusive temporary possession is given the latter for use by him without any control by the owner,- a bailment for hire is created. 8 C.J.S. Bailments § 8, p. 349.

In the case at bar, the Chevrolet automobile was hired out to Lester Jones with the understanding that he pay to Carl Jones a flat fee of $12.00 -per day for its use as a taxicab. Plaintiff retained no control over the vehicle while it was in Lester Jones’, possession, the agreed statement reciting that plaintiff did not direct Lester Jones with reference to the pickup or discharge of passengers. It further appears that Lester Jones retained all fares collected and was not at any time required to account to plaintiff for them. Lester Jones, under the agreement, paid for all gasoline consumed in the operation of the cab. These facts clearly show a bailment for hire, and there is nothing else contained in the agreed statement of facts which points to any relationship other than that of bailor or bailee. The fact that plaintiff could terminate the agreement at will does not alter the case. It was a right retained by the agreement and not inconsistent with the existence of the relationship of bailor and bailee during the time Lester Jones had exclusive possession. Likewise, the fact that Lester Jones had no control over the automobile when not in use by him or that Carl Jones kept the car in repair, oiled and greased it, does not change the character of the relationship that was created when the car was delivered to and in the exclusive possession of Lester Jones.

Nor does the fact that plaintiff paid $110.00 per month to Marcella Cab Company for use of its name on the cab make the agreement of hire anything less than a bailment. The purpose of the payment was no doubt to make the agreement more attractive to Lester Jones in the pursuit of his independent business. It is clear said sum was paid on behalf of Lester Jones to enable him to carry on his independent calling and to facilitate its rental. Carl Jones was not an owner of nor in any way did he control the operation of the Marcella Cab Company. The Marcella Cab Company owned the taxicab franchise, and directed and controlled Lester Jones with reference to picking up and discharging passengers. Carl Jones had no franchise to operate taxicabs in the city, and as heretofore stated did not direct Lester Jones in the operation of his business. If Lester Jones was the agent and servant of anybody, it was Marcella Cab Company and not Carl Jones.

While a bailment is frequently incident to the relation of principal and agent, such relation does not exist where the bailor has no control over the bailee, even though the acts of the bailee benefit the bailor. 2 C.J.S. Agency § 2b. In the case at bar, the contract of bailment had no element of agency. Nor was there any element of partnership shown. A partnership cannot be inferred where it appears that the agreement with reference to the undertaking does not contemplate the sharing of profits derived from the business and the sharing of losses sustained in its operation. See 68 C.J.S. Partnership § 1, p. 398 et seq. Likewise, it cannot be said that the parties were engaged in a joint enterprise. It cannot be held that parties are engaged in a joint enterprise within the meaning of the law of negligence unless there be a community of interest in the purpose of the undertaking, and an equal right to control the means or agencies employed to execute the common purpose. Schwartz v. Johnson, 152 Tenn. 586, 280 S.W. 32, 47 A.L.R. 323. Clearly, there was no element of master and servant revealed by the evidence in this case, as there was no control or right to control the physical conduct of Lester Jones shown. See Sec. 2, Restatement, Agency; Barnes v. Real Silk Hosiery Mills, 341 Mo. 563, 108 S.W.2d 58. Our conclusion is that the weight of the evidence clearly shows a bailment for hire, containing none of the elements that would make plaintiff liable for the negligence of Lester Jones, and for that reason, the latter’s negligence should not be imputed to him to defeat recovery against the defendant. Campbell v. Chicago, B. & Q. R. Co., 211 Mo.App. 331, 245 S.W. 58; Spelman v. Delano, 177 Mo.App. 28, 163 S.W. 300; Niedner v. Wabash R. Co., Mo.App., 219 S.W.2d 886; Norton v. Hines, 211 Mo.App. 438, 245 S.W. 346; Morgan County v. Payne, 207 Ala. 674, 93 So. 628, 30 A.L.R. 1243.

Defendant’s second contention, i. e., that plaintiff was engaged in business as a common carrier and for that reason the negligence of Lester Jones must be imputed to him is without merit. The evidence fails to show that Carl Jones was engaged in business as a common carrier.

The judgment is reversed and the cause is remanded with directions to the trial court to enter judgment against defendant in the sum of $416.15 with interest from the date suit was filed.

WOLFE, P. J., and RUDDY, J., concur.


source: Caselaw Access Project

author: STONE, Presiding Judge.

license: Public Domain

text:
    Lula L. HERHALSER, Plaintiff-Respondent, v. Martin S. HERHALSER, Defendant-Appellant.
    No. 8490.
    Springfield Court of Appeals. Missouri.
    March 11, 1966.

      Wear, Wear & Coffman, William A. Wear, Paul R. Coffman, Springfield, for defendant-appellant.
    Lincoln, Haseltine, Forehand & Springer, Edmund C. Forehand, Dale L. Rollings, Springfield, for plaintiff-respondent.
   STONE, Presiding Judge.

This action, docketed a's No. 43794 in the Circuit Court of Greene County, was instituted on February 25, 1963, by plaintiff Lula L. Herhalser for specific performance of the property settlement contract executed by her and by her husband, defendant Martin S. Herhalser, on April 26, 1962, the same date on which the Circuit Court of Greene County in a suit for separate maintenance brought by Mrs. Her-halser, as plaintiff, and docketed as No. 41889, entered a decree which ordered defendant to pay to plaintiff $175 per month for her support and maintenance. On March 7, 1963, defendant filed in No. 43794 his answer and also his counterclaim for reformation of the property settlement contract. Following the taking of evidence on April 1, 1965, the court entered its judgment and decree in No. 43794 on May 4, 1965, finding all issues for plaintiff both on her petition and on defendant’s counterclaim and awarding plaintiff an attorney’s fee of $150. On this appeal by defendant, he complains about denial of his counterclaim for reformation and about the allowance of an attorney’s fee to plaintiff.

For some twenty years prior to institution of No. 41889, the suit for separate maintenance, plaintiff had lived in Pasadena, California, and defendant had lived in Springfield, Missouri. Plaintiff said that “we [apparently referring to herself and a daughter] were sent to California.” Whatever the reason (here neither disclosed nor important), the parties had lived separate and apart most of the time, with defendant making trips to California “twice a year.” In 1947 or 1948, defendant built a house “up in the mountains near Lake Arrowhead” in San Bernardino County, California. When the Lake Arrowhead real estate was sold in 1958, the purchasers executed a note (hereinafter referred to as the note) dated October 28,1958, to the order of “M. S. Herhalser and Lula L. Herhalser, husband and wife as joint tenants,” in the principal sum of $7,000 with interest from date, payable in monthly installments of $50 each beginning on January 1, 1959, and secured by a deed of trust on the real estate sold. For the purpose of collection, the note was left with the Bank of America, Lake Arrowhead branch, and the monthly installments, as paid from time to time, were deposited by the bank in “a joint bank account” in the names of both plaintiff and defendant. Defendant “often” made withdrawals from that account. Plaintiff knew that the monthly installments on the note were being deposited in the joint bank account, but there was no evidence that she had made any withdrawals therefrom prior to entry of the decree in No. 41889.

Shortly before the filing of No. 41889, plaintiff, then seventy years of age, came to Springfield, Missouri, and first talked with defendant’s attorney, whom she knew. Finding that he was in no position to counsel with her, she then employed the firm still representing her. After “numerous” conferences between the attorneys for the parties, a written property settlement contract was drafted by defendant’s attorney and subsequently was executed by both parties on April 26, 1962. That contract provided in Paragraph 1 that, if the court found for plaintiff in No. 41889, the suit for separate maintenance, judgment for plaintiff in the sum of $175 per month might be entered (as we have noted, such judgment was entered on April 26, 1962); in Paragraph 2 that “Husband [defendant] agrees to convey all of his right, title and interest to his Wife [plaintiff] in and to the property now owned by the parties hereto in the State of California, together with all personal property located in the State of California”; in Paragraph 3 that “Wife agrees to convey to Husband any and all interest she might have in and to the real estate and personal property owned by the parties hereto, located in the State of Missouri”; in the next paragraph, also numbered as Paragraph 3, that “Wife further agrees to execute and deliver to Husband an irrevocable power of attorney ... to execute and deliver for her and in her name any and all deeds of trust, warranty or quit claim deeds to any and all .property located in the State of Missouri”; and in Paragraph 4 that “Husband agrees to execute and deliver to Wife an irrevocable power of attorney ... to execute and deliver for him and in his name any and all deeds of trust, warranty or quit claim deeds to any and all property located in the State of California.”

On the date of the contract, to wit, on April 26, 1962, plaintiff gave defendant a power of attorney authorizing him to execute on her behalf “any instruments of conveyance, bills of sale, mortgages and deeds of trust upon real estate and personal property located in the State of Missouri,” and defendant executed a power of attorney authorizing plaintiff to sell and convey on his behalf the real estate in Pasadena, California, where plaintiff resided.

In November 1962, plaintiff drew $800 out of the joint bank account in the Bank of America, Lake Arrowhead branch, in which the $50 installments on the note were being deposited. After he learned of this withdrawal, defendant withheld from the payments of $175 per month for which he was obligated by the judgment in No. 41889, the suit for separate maintenance, sums aggregating $1,496.10 as of April 1, 1965, the date on which this action, No. 43794, was tried. In the course of trial, defendant claimed certain credits, none of which were allowed by the trial court, against the aggregate arrearage of $1,496.-10; but, sinee the claim for those credits has not been pursued on this appeal, we do not detail or discuss them.

Counsel for both parties tried the case in the circuit court, and have briefed it on appeal, on the theory that the joint bank account in the Bank of America, Lake Arrowhead branch, and the note held by the bank for collection, are “personal property located in the State of California” within the contemplation and meaning of that language in Paragraph 2 of the property settlement contract. Accordingly, our appellate review is on the same theory. Olsten v. Susman, Mo., 362 S.W.2d 612, 614(3); Voelker v. St. Louis Mercantile Library Ass’n., Mo., 359 S.W.2d 689, 693(2); Welch v. McNeely, Mo., 269 S.W.2d 871, 875(2); Moore v. State Farm Mut. Auto. Ins. Co., Mo.App., 381 S.W.2d 161, 166(6); Griffin v. Anderson, Mo.App., 369 S.W.2d 889, 892(7).

However, defendant insists that the trial court erred in denying his counterclaim for reformation of the property settlement contract “because of the mutual mistake of the parties and the error of the scrivener,” defendant’s attorney. At one point in defendant’s brief, the supporting argument runs along the line that, since none of the attorneys had been informed of, or had any knowledge concerning, the note or joint bank account prior to execution of the contract on April 26, 1962, the note and bank account could not have been considered by opposing counsel in their negotiations or by defendant’s attorney in the. drafting of the contract and that this was “obviously a mutual mistake”; and, at another point in the brief, the reasoning is that “the specific wording of the property settlement [contract] was the error of the scrivener, defendant’s attorney, in that he was trying to avoid listing specific personal property” and that “this resulted from the mutual mistake of the parties in that neither intended that such property would become that of the plaintiff and the scrivener had no knowledge that this property existed.”

The negotiating attorneys for both parties frankly stated upon trial of this action, No. 43794, that neither of them had heard of the note or joint bank account when the property settlement contract was executed and judgment was entered in No. 41889 on April 26, 1962. And defendant’s attorney testified that he had employed the hereinbefore-quoted language in paragraphs 2 and 3 of the contract to avoid listing “all of the household furniture, the automobile and other property, located in [plaintiff’s] home in Pasadena” and “all of [defendant’s] plumbing fixtures and supplies” in his place of business and the personalty in some furnished apartments in Springfield. But, as plaintiff’s attorney emphasized in his testimony, the property settlement was made on the basis of a geographical division of assets, i. e., that “he [defendant] would accept everything in Missouri and she [plaintiff] would accept everything in California, and that would be it” — “they would divide it, [one] was to have what was in one state and the other in the other state.”

The record by no means compels the conclusion urged in defendant’s brief that neither of the parties intended that, under the contract, the note and joint bank account would become plaintiff’s property. Plaintiff testified without objection that, when the contract was executed, she had knowledge of the note and bank account and that it was her “understanding” that those assets were to become her sole property. Other testimony by plaintiff, here emphasized by defendant’s counsel, did not require rejection of the foregoing statement as to her “understanding.” For example, the fact that plaintiff did not draw on the joint bank account until November 1962, some seven months after execution of the contract, should be considered in connection with her explanation that she “left it [the bank account] there as a sort of reserve” and withdrew $800 in November 1962 “because I wanted to make improvements on the home — I was going to put it up for sale,” leaving the balance in the account “for emergency.” And, bearing in mind that plaintiff was a woman seventy years of age and unlettered in the law, her uncertain “I guess so” in response to the amorphous interrogation by the aggressive cross-examiner, “Mr. Her-halser had the right to draw it all out at the time of the emergency, didn’t he,” does not have the damning force and effect which defendant’s counsel would accord to it.

Invited by his attorney to reveal “what did you consider in your own mind” in arriving at the figure of $175 per month to be paid for plaintiff’s separate maintenance, defendant stated that he had “planned on” using the $50 monthly payments on the note and “then the balance would have to come through [my] business.” At another point in his direct examination, defendant agreed that it was not his intention “to transfer interest” in the note to plaintiff (excepting that “in case of death, it would go to her”) and then added “that money belonged to my business.” But defendant was and is in no position to rely upon any such undisclosed plan, secret intention, or unilateral determination of ownership of the note and joint bank account. For, the property settlement contract, in no respect alleged to have been uncertain or ambiguous, was short in length and simple in terms. Defendant was a literate, successful businessman. He either read the contract, or had ample opportunity to do so, before he signed it, and there is no suggestion that his execution thereof was procured by fraud, deceit or artifice.

In the circumstances of the case at bar, defendant was bound in law to have known the contents of the contract, regardless of whether he read it [Porter v. Farm Bureau Life Ins. Co., Mo.App., 322 S.W.2d 927, 929; Minich v. M. F. A. Mutual Ins. Co., Mo.App., 325 S.W.2d 56, 58(5); Haman v. Pyramid Life Ins. Co., Mo.App., 347 S.W.2d 449, 454], and he will not be permitted to rely upon or take advantage of his own fault or carelessness and be heard to say that the instrument did not express the true agreement. Ely v. Sutton, 177 Mo.App. 546, 553, 162 S.W. 755, 757(1); Reddick v. Union Electric Light & Power Co., 210 Mo.App. 260, 272, 243 S.W. 382, 385(2); Edmund S. Mills Corp. v. Stinebaker, Mo.App., 67 S.W.2d 821, 822(1). See Ragan v. Schreffler, Mo., 306 S.W.2d 494, 499(11). Although the law affords to everyone reasonable protection against fraud, “it is not an indulgent guardian which can go to the romantic length of giving protection against the consequences of indolence, folly or careless indifference to the ordinary and accessible means of information.” Dickinson v. Bankers Life & Casualty Co., Mo.App., 283 S.W.2d 658, 663(7); Hutchinson v. Metropolitan Life Ins. Co., Mo., 293 S.W.2d 307, 313; Woolfolk v. Jack Kennedy Chevrolet Co., Mo.App., 296 S.W.2d 511, 515(5, 6). See Local Finance Co. v. Charlton, Mo.App., 289 S.W.2d 157, 163(11); O’Shea v. Lehr, 182 Mo.App. 676, 690-691, 165 S.W. 837, 841(1).

True, defendant’s attorney had never heard of the note and joint bank account when he drafted the property settlement contract, but the significant fact is that, when the contract was executed, both parties knew of those assets and their situs in California. The contract was one between plaintiff and defendant, not between their attorneys; and the meaningful circumstance was the knowledge of the parties at the time of execution, rather than the want of information on the part of their attorneys. Equity will entertain a bill to reform a contract only if the mistake is mutual, i. e., if the contract has been written “in terms which violate the understanding of both parties” [Wilhite v. Wilhite, 284 Mo. 387, 393-394, 224 S.W. 448, 449(2); Baumhoff v. Lochhaas, Mo., 253 S.W. 762, 764(1)] or, otherwise stated, if it appears “ ‘that both have done what neither intended.’ ” Allan v. Allan, Mo., 364 S.W.2d 578, 581; State ex rel. State Highway Com’n. v. Schwabe, Mo., 335 S.W.2d 15, 19; Walters v. Tucker, Mo., 308 S.W.2d 673, 675. Certainly, the trial court reasonably could have found that there was no such mistake as to the terms of the property settlement contract under review.

Furthermore, “[a] mutual mistake in a written instrument presupposes a prior or preceding agreement between the parties. To show the mutual mistake in the written instrument, the preceding agreement must ex necessitate be shown.” Dougherty v. Dougherty, 204 Mo. 228, 237, 102 S.W. 1099, 1101(3); Crouch v. Thompson, 254 Mo. 477, 488, 162 S.W. 149, 152; Feeler v. Gholson, Mo., 71 S.W.2d 727, 729(4). See Allan v. Allan, supra, 364 S.W.2d at 581(2); Zahner v. Klump, Mo., 292 S.W.2d 585, 587(2). The transcript on appeal reflects no such “prior or preceding agreement between the parties,” in any wise differing from that set forth in the property settlement contract. For that matter, the transcript and defendant’s brief leave us uncertain as to what reformation is sought.

The prayer of defendant’s counterclaim was that the contract “be reformed so that paragraph 2 thereof does not include the note secured by the deed of trust on the real estate in California and . . . that the income from said note shall be decreed to be that of the defendant or that the amount of such income shall be credited upon the $175 per month that defendant has agreed to pay plaintiff for her separate maintenance and support.” And upon trial defendant insisted that the note and its proceeds as deposited in the joint bank account “belonged to my business” and that “no one could draw on that account but me.” In short, defendant’s position in the trial court clearly was that the note and the joint bank account were his sole property. But upon appeal, defendant’s counsel, in keeping with the ancient proverb that “better is halfe a lofe than no bread” at all [John Hey-woodes Woorkes (Sharman’s Ed. of 1874, a reprint of 1598), Part I, Chap. X], boldly declare that “the only logical conclusion that the trial court could have made, and this court can make, is that it [the property under discussion] was not considered at any time and should remain just as it was before the property settlement, giving to both the plaintiff and defendant an undivided one-half [interest] in and to said note, deed of trust and bank account.”

“ The high remedy of reformation is never granted on a probability, or on a mere preponderance of evidence. The strict requirements relate not only to the mistake and the mutuality thereof or to the fraud alleged, but also to the real agreement which is alleged to have been made.’ ” Dutton v. Prudential Ins. Co. of America, 238 Mo.App. 1058, 1068, 193 S.W.2d 938, 943(5); 45 Am.Jur., Reformation of Instruments, § 116, p. 651. See City of Warsaw v. Swearngin, Mo., 295 S.W.2d 174, 181(7); Zahner v. Klump, supra, 292 S.W.2d at 587(3); General Refractories Co. v. Sebek, 328 Mo. 1143, 1154, 44 S.W.2d 60, 65(4); Employers’ Indemnity Corp. v. Garrett, 327 Mo. 874, 886, 38 S.W.2d 1049, 1054-1055(10, 11); Dildine v. Rimpson, Mo.App., 240 S.W.2d 214, 219-220.

Bearing in mind the injunction by both rule and statute that, upon this appellate review of a court-tried case, “[t]he judgment shall not be set aside unless clearly erroneous” [V.A.M.R. Rule 73.01 (d); V.A.M.S. § 510.310(4)], we have no hesitancy in concluding that the judgment finding the issues in favor of plaintiff on defendant’s counterclaim for reformation should be affirmed.

We turn to defendant’s complaint that the trial court erred in awarding plaintiff an attorney’s fee of $150. In seeking to sustain this award, plaintiff’s attorneys quote our statement in Patterson v. Patterson, Mo.App., 215 S.W.2d 761, 767(9), adopted from Baer v. Baer, Mo.App., 51 S.W.2d 873, 880(13), that “‘[allowances for counsel fees and suit money for the wife in a divorce action, and in proceedings ancillary thereto, are largely discretionary with the trial court . . .’” (emphasis added in defendant’s brief), remind us that “awards of attorneys’ fees for such ancillary proceedings as motions to modify have been consistently upheld” (citing Bet-tinger v. Bettinger, Mo.App., 355 S.W.2d 354, 360; Long v. Long, Mo.App., 357 S.W.2d 243, 246; Crooks v. Crooks, Mo.App., 197 S.W.2d 678, 685), point out cases approving allowances to wives who, in good faith, have appealed from adverse decrees in divorce suits (e. g., Price v. Price, Mo.App., 281 S.W.2d 307, 313-314; Hall v. Hall, Mo.App., 179 S.W. 738; Libbe v. Libbe, 166 Mo.App. 240, 148 S.W. 460), and then inform us that they (counsel) find it “hard to conceive of the present case as anything but ancillary to a divorce or separate maintenance proceeding in the same nature as motion to modify or an appeal.” We find it equally difficult to accept plaintiff’s conception of the present case as an ancillary proceeding.

“Ancillary,” as used in law, is defined as “designating or pertaining to a document, proceeding, officer or office, etc., that is subordinate to, or in aid of, another primary or principal one; as, an ancillary attachment, bill, or suit presupposes the existence of another principal proceeding . . . .” Webster’s New International Dictionary, 2nd Ed., p. 98. And an “ancillary proceeding” is one subordinate to or in aid of another primary action. Schram v. Roney, D.C.Mich., 30 F.Supp. 458, 461; Black’s Law Dictionary, 4th Ed., p. 112. The approved allowances to the wife in all of the cases cited by plaintiff were made in connection with appeals from decrees granting or denying divorces or in connection with motions to modify divorce decrees. Of course, an appeal is but a continuation of the original jurisdiction and suit; and, insofar as the allowance of attorneys’ fees is concerned, a motion to modify the provisions of a divorce decree with respect to alimony, child support or child custody is similarly regarded. Bettinger, supra, 355 S.W.2d at 360(4); Fox v. Fox, Mo.App., 312 S.W.2d 362, 363(3); Crooks, supra, 197 S.W.2d at 685(17); Haagen v. Haagen, Mo.App., 11 S.W.2d 757, 758(2). So, the proceedings in all of the cases cited by instant plaintiff truly were ancillary in that they presupposed the existence of, and depended upon, a primary or principal action.

This action, No. 43794, was instituted by the filing of plaintiff’s “Petition for Specific Performance” of paragraph 2 of the property settlement contract, by which defendant covenanted to convey to plaintiff “all of his right, title and interest . . . in and to the property now owned by the parties hereto in the State of California, together with all personal property located in the State of California.” The prayer of plaintiff’s petition was “for judgment directing defendant to execute and deliver to plaintiff a written assignment of the deed of trust securing [the] note, and a letter instructing the Bank of America to change [the joint bank account] by making said account subject to the withdrawal of plaintiff alone, and further directing defendant to endorse” and deliver to plaintiff a $50 draft payable to the joint order of both parties which constituted the proceeds of one monthly payment on the note. The only averments in plaintiff’s petition concerning No. 41889, the suit for separate maintenance, or the decree entered therein, were to the effect that plaintiff had instituted that suit on March 8, 1962, and that on April 26, 1962, the circuit court had rendered judgment therein which “(1) granted plaintiff the right to live separate and apart from defendant, (2) ordered defendant to pay plaintiff $175 per month for plaintiff’s support and maintenance . . . and (3) taxed all costs of the proceeding against defendant.” Although plaintiff’s p jst-trial motion for “a temporary attorney fee” in this action, No. 43794, included a statement that the property settlement contract was “incorporated in a judgment for separate maintenance” in No. 41889, that motion did not prove itself [Baker v. Baker, Mo.App., 274 S.W.2d 322, 324(4); Bullock v. B. R. Electric Supply Co., 227 Mo.App. 1010, 60 S.W.2d 733, 735(6); Orlando v. Surwald, Mo.App., 47 S.W.2d 228, 229(5)], the decree now under review did not even refer to the decree in No. 41889, and that decree is not included in the transcript on appeal.

But, whether or not the property settlement contract was approved by the court in No. 41889, the suit for separate maintenance, is here neither material nor important. For, whether or not so approved, the contract would have been valid and enforceable in this action. Gaede v. Smith, 354 Mo. 738, 741, 190 S.W.2d 931, 932(3); State ex rel. Green v. James, 355 Mo. 223, 231, 195 S.W.2d 669, 673(10, 12); Farrow v. Farrow, Mo., 277 S.W.2d 532; Singer v. Singer, Mo.App., 390 S.W.2d 605, 608(4); Dorsett v. Dorsett, 232 Mo.App. 126, 136-137, 90 S.W.2d 188, 194. Accordingly, this action neither presupposed the existence of, nor depended upon, the suit for separate maintenance as a primary or principal action and may not properly be treated as ancillary thereto.

We may say, as did the Court of Appeals of New York in Johnson v. Johnson, 206 N.Y. 561, 100 N.E. 408, 410(3), an equitable action by the wife to set aside certain provisions of a separation agreement, that we are “not aware of any influential authority for the proposition that in an ordinary equity suit between wife and husband affecting property rights counsel fees should be allowed to the former . « ..” See Low v. Low, 255 Ala. 536, 52 So.2d 218, 222(14, 15). In fine, nothing appears to take this case without the general rule that an attorney’s fee may not be allowed to a party litigant in the absence of statutory authority or contractual provision therefor (as in a note). Munday v. Thielecke, Mo., 290 S.W.2d 88, 93(6); Willis v. American National Life Ins. Co., Mo.App., 287 S.W.2d 98, 107(16).

Paragraph 4 of the final decree in this action, No. 43794, being that portion of the decree awarding plaintiff an attorney’s fee of $150, is set aside and for naught held; and, as thus modified, the decree otherwise is affirmed.

RUARK and HOGAN, JJ., concur.


author: PALMORE, Judge.

text:
    John ROBERTSON, Jr., et al., Appellants, v. CITY OF HAZARD, Appellee.
    Court of Appeals of Kentucky.
    March 18, 1966.
    S.M. Ward, Calvin N. Manis, Hazard, for appellants.
    W. E. Faulkner, Hazard, for appellee.
   PALMORE, Judge.

The City of Hazard enacted an ordinance proposing to annex unincorporated territory pursuant to KRS 81.110 and 81.190. More than 75% of the freeholders residing in the area remonstrated by filing this proceeding in the Perry Circuit Court. After a trial without the intervention of a jury the trial court made findings of fact to the effect that a part of the territory should be annexed and the remainder should not. Judgment was entered approving annexation of a designated portion of the area described in the ordinance. Under Donovan v. City of Louisville, Ky., 299 S.W.2d 636 (1957), this partial annexation was unauthorized, as both sides now agree. See also City of Prestonsburg v. Conn, Ky., 317 S.W.2d 484, 487 (1958). However, the remonstrants did not perfect an appeal from the judgment, and the case comes before us on an appeal from an order overruling a motion by the City to vacate the judgment.

Having become convinced that the judgment was improper, the City moved to set it aside under CR 60.02, and in response the remonstrants asked the same relief. The trial court overruled the motion on the ground that the judgment was not void but merely erroneous. The remonstrants appeal.

Without reaching the problem of whether the judgment was void, we are of the opinion that in the absence of some good reason to the contrary, when the parties to a lawsuit agree in good faith that a mistake has been made and that the judgment should be vacated there is no justifiable basis for overruling a CR 60.02 motion. Hence it is our conclusion that the motion in this case should have been sustained. KRS 81.190(4), providing that there shall be no appeal from the judgment of the circuit court, does not preclude review of a final order disposing of a motion to vacate under CR 60.02.

Upon remand it will be necessary that new findings be made and a judgment entered approving or disapproving the proposed annexation as a whole. Cf. Donovan v. City of Louisville, supra.

The cause is reversed for further proceedings.


author: CLAY, Commissioner.

text:
    Lloyd D. MAYER, Petitioner, v. Joseph J. BRADLEY, Judge of the Fayette Circuit Court, Division No. 2, Respondent.
    Court of Appeals of Kentucky.
    Dec. 13, 1963.
    Frank S. Ginocchio, Lexington, for appellant.
    Rufus Lisle, Harbison, Kessinger, Lisle & Bush, Lexington, for appellee.
   CLAY, Commissioner.

This is an original proceeding in which the petitioner seeks to prohibit the judge of the Fayette Circuit Court from enforcing a pre-trial order requiring the production of books and records under CR 34.

The petitioner was sued by ,a former partner with whom he had been associated in the practice of medicine. Various claims and counterclaims were asserted. Among them was the claim that since January 15, 1961 the petitioner was practicing medicine in Fayette County in violation of the partnership contract. The partner who was suing the petitioner moved the Court under CR 34 to require petitioner to produce books and records showing the patients he had treated since January 15, 1961 and the nature of the treatment.

Petitioner contends these books and records are irrelevant to the issues; that the partner requesting this information did not show good cause; that in a certain respect the order was unauthorized; that' the order requires the disclosure of confidential matter; and that this disclosure may subject petitioner to civil liability. Without deciding the merit of these contentions, a cursory examination fails to disclose that the objections to the order are meritorious. Certainly it does not clearly appear that this order violates any rights of the petitioner or is contrary to the purposes of CR 34 and other discovery rules.

Even if the interlocutory order was erroneous, the extraordinary remedy here sought may not ordinarily be invoked. Bender v. Eaton, Ky., 343 S.W.2d 799. As pointed out in that case, the petitioner must not only show error, but that a substantial miscarriage of justice will result and correction of the error is necessary and appropriate in the interest of orderly judicial administration. Petitioner has failed to establish either, much less both, of the latter two necessary elements which would make it appropriate to grant relief.

Relief by way of an order of prohibition is denied.


author: HILL, Judge.

text:
    Romal FERGUSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Dec. 10, 1965.
    Rehearing Denied April 29, 1966.

      Charles E. Keller, Louisville, for appellant.
    Robert Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., Frankfort, for ap-pellee.
   HILL, Judge.

Appellant, Romal Ferguson, was convicted of armed robbery and given a life sentence. He appeals.

Counsel for appellant has furnished us with an exhaustive brief, containing six “points” and thirty-nine subheads. The grounds relied on for reversal may be summarized as follows:

1. The arrest was invalid

2. The confession was incompetent

3. The confession was not corroborated

4. The instructions were erroneous

5. There was improper joinder of offenses

6. The defendant was denied a speedy trial

7. Defendant was twice placed in jeopardy.

8. And miscellaneous other errors were committed.

Appellant complains that his arrest was illegal. He and one Oval Brooks were arrested as suspects in connection with two previous robberies, at a time when the arresting officers knew nothing of the Jasper Lindsey robbery. There was no evidence obtained incident to the arrest. No search was made that disclosed any incriminating evidence. Appellant was in no way prejudiced by the arrest.

It is next contended the confessions were incompetent because made involuntarily and without counsel having been previously appointed.

On appellant’s motion to quash the confession, 137 pages of testimony were taken in the absence of the jury. The jailer, county judge, county attorney, sheriff, and a deputy sheriff testified appellant asked to be taken before the county judge or county attorney so he could confess. They stated appellant was advised that he did not have to testify; that any statement he made could be used against him; and that he was entitled to have an attorney appointed to represent him. The substance of their testimony was that on the day following the arrest of appellant and his companion, appellant voluntarily gave a confession at which time he stated that he could not write. This was on February 10, 1964. The jailer later reported to the county judge that appellant was able to write his name on the walls of the jail. On February 13, 1964, appellant was called into the office of the county judge and reminded of his ability to write; whereupon, he signed another confession. Appellant contradicts the testimony of all of the above named officials. It is significant that in giving his testimony in chambers on his motion to quash the confession (for he did not testify before the jury), appellant was positive and responsive when answering questions favorable to his contention, but he was incoherent and evasive when answering questions unfavorable to his position.

Whether the confessions were voluntarily made and appellant waived right to counsel presented questions of fact. The great weight of the evidence supports the findings of the trial judge. Therefore his findings will not be disturbed. Indeed, to hold otherwise would amount to the virtual disfranchisement of all the trusted public servants who testified for the Commonwealth. Bauer v. Commonwealth, Ky., 364 S.W.2d 655 (1963), and Carson v. Commonwealth, Ky., 382 S.W.2d 85 (1964).

Appellant argues his conviction was not warranted because the confessions, even if voluntary and competent, were not accompanied by other proof that such an offense was committed. RCr 9.60 is cited. It provides: “A confession of a defendant, unless made in open court, will not warrant a conviction unless accompanied with other proof that such an offense was committed.’” Jasper Lindsey, the victim of the crime, was in a nursing home and was physically and mentally unable to attend the trial. His son testified that Lindsey told him the facts as they were detailed in the confessions-This is clearly hearsay evidence and incompetent, but there was no objection to it-

Arthur Ray Cardwell, a close neighbor of the aged and feeble Jasper Lindsey, testified that at about 1:30 a. m. the same night, and shortly after the crime was committed, Jasper Lindsey came to his home and reported what had recently occurred. Cardwell said:

“And I opened the door and he come in and he wanted to borrow some matches said somebody had broke in on him and treated him mean and took his matches and took his truss and his teeth, he told me, and said they put his fire out. Well, I loaned him some matches and he wanted me to take him home and I tried to make him understand that I would take him home and he couldn’t hear me and I wrote it down on a piece of paper and then I took him by the arm and put him in the car and took him home.”

We conclude this evidence was competent under the “res gestae” exception to the hearsay rule of evidence and was sufficient proof of the “corpus delicti” to meet the requirements of RCr 9.60 above quoted. Cf. Cook v. Commonwealth, Ky., 351 S.W.2d 187 (1961), and McCormick, Evidence, section 272, page 580 (1954).

Appellant next contends he was entitled to an instruction on lesser offenses and cites Combs v. Commonwealth, Ky., 378 S.W.2d 626 (1964). The Combs case involved a homicide. It held that: “ * * * if there is any evidence that .tends to show that the crime was of less magnitude than murder, it is the duty of the court to give an instruction on such other phases of the case.” In the present case, there is no evidence of a crime of less magnitude than armed robbery. Neither can there be an inference drawn from the evidence of a lesser crime. Hence, appellant was not entitled to such an instruction.

Complaint is made that the court erred in failing to require the Commonwealth to try together all of the indictments involving the Lindsey incident. He cites RCr 9.12 which vests in the trial judge a discretion in such situations. Appellant was not prejudiced by the ruling of the court, and the trial court did not abuse its discretion.

It is argued appellant was denied a speedy trial. In this connection it should be pointed out that appellant was first convicted on March 12, 1964. On appellant’s motion under RCr 11.42, this conviction was set aside on June 7, 1964. He was reindicted June 9, 1964, and tried on November 4, 1964. The criminal terms of the Butler Circuit Court are held in March, June, and November. Under these circumstances we find there is no merit in appellant’s contention that he was denied a speedy trial.

Appellant next charges that he was twice placed in jeopardy for the same offense. It is elementary that one may not complain of former jeopardy when he procured the setting aside of the earlier judgment. Rice v. Commonwealth, Ky., 387 S.W.2d 4 (1965). Cf. Terry v. Commonwealth, Ky., 371 S.W.2d 862 (1963), and Foster v. Commonwealth, Ky., 348 S.W.2d 759 (1961).

Finally, we come to the consideration of “miscellaneous” other errors assigned by appellant.

Objection is made to the testimony of the county judge, wherein he stated: “we had him in court — couple of months before” (the time of the trial). This testimony was given in connection with the pretense of appellant that he could not sign his name. There was no testimony that he was charged with any offense. We could just as easily presume that he was in court as a witness as the defendant, or that he was there for any number of other reasons. We think this testimony was not prejudicial.

It is charged that the Commonwealth Attorney made prejudicial reference to appellant as the “beast he has been in the past.” A reading of the Commonwealth Attorney’s closing argument leads us to conclude this reference pertained to the present crime and was fair argument. Holbrook v. Commonwealth, 249 Ky. 795, 61 S.W.2d 644 (1933), and Grigsby v. Commonwealth, 302 Ky. 266, 194 S.W.2d 363 (1946).

The failure of the trial court to instruct the jury that a unanimous verdict was required is not error. Commonwealth v. Redd, 196 Ky. 798, 245 S.W. 507 (1922).

Without specification appellant complains he was prejudiced by the court’s impatience with his defense. The record shows some justifiable impatience by the court during the hearing in chambers on appellant’s motion to suppress the confessions. The jury did not hear any of this proceeding. We find no substantial demonstration of impatience by the trial judge in the presence of the jury. Taylor v. Commonwealth, 240 Ky. 450, 42 S.W.2d 689 (1931).

We find no errors substantially affecting the appellant’s rights and hence affirm the judgment.


author: CULLEN, Commissioner.

text:
    Clyde W. COLES, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 18, 1966.
    Rehearing Denied April 29, 1966.
    James H. Highfield, Michael O. McDonald, Louisville, for appellant.
    Robert Matthews, Atty. Gen., George Rabe, Asst. Atty. Gen., Frankfort, for ap-pellee.
   CULLEN, Commissioner.

Clyde W. Coles, confined in the penitentiary under a life sentence for armed robbery pursuant to a judgment of April 1959, filed a motion under RCr 11.42 to vacate the judgment on the ground that he was denied effective assistance of counsel at the trial. On the hearing of the motion it was shown that counsel was appointed for Coles at 11:00 a. m. on the day of the trial and the trial began at 2:00 p. m., notwithstanding that counsel had moved for a continuance. However, the judge hearing the motion (who was successor in office to the judge who had presided at the trial) found as a fact, on conflicting testimony of witnesses as to their recollection of what took place on the day of the trial, that Coles had insisted that he be tried on the day set. The judge therefore concluded that Coles had waived his right to effective assistance of counsel, to the extent that effective assistance involved adequate time for preparation. An order was entered overruling the motion to vacate the judgment of conviction, from which order Coles, represented by appointed counsel, has prosecuted this appeal.

In our opinion the evidence was sufficient to support the finding that Coles had insisted upon immediate trial and had intelligently and understandingly waived the right of time for adequate preparation by counsel. There is no question but that such right can be waived. Tanner v. Commonwealth, Ky., 375 S.W.2d 694.

The order is affirmed.


author: WADDILL, Commissioner.

text:
    Earnest JOHNSON, Appellant, v. EASTERN COAL CORPORATION et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 25, 1966.
    Dan Jack Combs, Pikeville, for appellant.
    William J. Baird, Pikeville, for appellees.
   WADDILL, Commissioner.

This is an appeal from a judgment upholding an order of the Workmen’s Compensation Board which in effect refused to review an award of certain compensation benefits to appellant, Earnest Johnson.

Subsequent to sustaining a work-connected accidental injury in 1957 Johnson and his employer, appellee Eastern Coal Corporation, executed and filed with the Board an agreement settling Johnson’s workmen’s compensation claim. This was approved and thereby became an award of the Board. Pursuant to its terms compensation was paid by the company to Johnson.

Later Johnson moved to reopen the award (KRS 342.125) alleging a change of his condition due to traumatic neurosis. The motion was sustained and evidence was heard. On November 9, 1962, the Board found that Johnson was disabled by a neurotic condition stemming from the 1957 accident and injury and concluded that he should receive an additional award of compensation benefits. On October 13, 1964, Johnson filed with the Board an application for a full Board review of the award claiming it was inadequate. The Board refused to review the proceedings and Johnson then filed an appeal in the Pike Circuit Court pursuant to KRS 342.285. The circuit court examined the merits of the case and entered judgment unholding the award.

On this appeal Eastern Coal Corporation contends, as it previously contended before the Board and in the circuit court, that the Board was not authorized to consider the application for review because it was not timely filed. Since this contention is meritorious we do not reach the argument urged by appellant for reversal.

The applicable statute, KRS 342.-281, provides that an application for review of an award may be made within fourteen days from the date of the award. We have held that strict compliance with this section is mandatory to obtain a full Board review. Jones v. Davis, 246 Ky. 293, 54 S.W.2d 681.

In the instant case the award was dated November 9, 1962. The application for review of this award was filed October 13, 1964. Obviously the time for filing this application had expired and the Board properly refused to consider it. Inasmuch as Johnson was not entitled to the review he sought and since the circuit court refused to give appellant any relief, though for another reason, the judgment will not be disturbed.

The judgment is affirmed.


author: POPE, Justice.

text:
    Philip J. LEHNHARD, Relator, v. Honorable David MOORE, District Judge, Respondent.
    No. A-11035.
    Supreme Court of Texas.
    March 9, 1966.

      Otto A. Ritter, Longview, for relator.
    James H. Keahey, Austin, F. Wilbert Lasater, Tyler, Fred Erisman, Longview, for respondent.
   POPE, Justice.

Relator, Philip J. Lehnhard, by this original mandamus action, seeks to vacate certain orders which the Honorable David Moore, Judge of the 124th Judicial District, made in connection with a deposition and subpoena duces tecum issued in accordance with Rule 202, Texas Rules of Civil Procedure. Lehnhard moved to quash the subpoena duces tecum and alternatively sought a protective order which would limit both the scope and public disclosure of the data subpoenaed. See Rules 177a and 186b. Judge Moore, after hearing, denied the motion to quash but ordered some restrictions on the data which Lehnhard would be required to produce. Lehnhard urges that Judge Moore’s orders amount to a clear abuse of discretion for which a writ of mandamus may issue. Southern Bag & Burlap Co. v. Boyd, 120 Tex. 418, 38 S.W.2d 565 (1931); Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677 (1956). More specifically, he argues that the trial court abused its discretion because the documents sought by the subpoena duces tecum are not material to the main action and are confidential trade secrets which need not be disclosed and should be protected under Rule 186b, T.R.C.P. We deny the application for mandamus.

Relator, Lehnhard, is not a party to nor interested in the main action out of which the subpoena duces tecum issued. He is a disinterested expert possessed of recorded data which respondents say is the sole source of basic information that is material and necessary to the truthful development of the main action. Lehnhard is employed by and is Field Chairman for East Texas Engineering Association, hereinafter called Engineering. Engineering is a nonprofit, noncorporate association of certain producers of minerals in the East Texas Field. Engineering is not a party to the main action, and none of the parties to the main action are members of Engineering. This proceeding, therefore, does not concern the right of a party to obtain data from an adversary or his expert witness. Sachs v. Aluminum Co. of America, 167 F.2d 570 (6th Cir. 1948). It does not concern the right of a party to the work product of an attorney. Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947); 2A Barron & Holtzoff, Federal Practice & Procedure, §§ 652, 652.1, 652.2; 14 Stanford L.Rev. 455 (1961). It is not a proceeding in which the one seeking information calls upon the expert to perform additional research or spend time preparing himself for examination.

Respondents challenge the record that relator, Lehnhard, has filed and state that it is incomplete'. Respondents insist that there was an earlier and similar hearing which Judge Moore could and did take into consideration. Relator, Lehnhard, denies that there was an earlier hearing, but he says that if there was one, it was conducted before a different judge. The court reporter’s certificate to the record of the hearing on relator’s motion to quash the subpoena is ambiguous. The internal evidence from the statement of facts shows that there was some kind of prior hearing, and it indicates that relator Lehnhard testified at that hearing. This collateral argument is not significant, since, accepting the statement of facts upon which relator, Lehnhard, relies, we are unable to say that Judge Moore clearly abused his discretion, as Lehnhard contends.

By his first point, relator urges that Judge Moore abused his discretion in holding that the documents named in the subpoena duces tecum are material to the proof of the main action. Martha Barton King and husband instituted suit in Gregg County against East Texas Salt Water Disposal on February 5, 1965. They alleged that Salt Water Disposal since 1942 has collected and injected some half billion gallons of water into the Woodbine sands on the west of the East Texas Oil Field. This, they assert, has artificially displaced the oil in the reservoir by moving it toward the east, and all the wells on 390 acres of land that they leased are now nonproducing. They assert that twelve injection wells are located to the west and within three miles of the King wells and that Salt Water Disposal has gathered water from the north, south and east of their lands for injection into the water wells. For this trespass they claim damages.

The documents which the Kings designated in their subpoena duces tecum and which are in the possession of the relator, Lehnhard, are (1) nine designated reports entitled “Factual Analysis of Water Level Rise” as well as other reports which may have been prepared by Engineering since 1956, (2) lists of bottomhole pressures used in preparation of isobaric maps prepared annually since 1935, (3) a 1961 “Top-of-Sand Map,” (4) a 1961 “Base-of-Sand Map,” (5) East Texas Field Base Map, (6) eleven isobaric maps. Except for the fifth item which Lehnhard willingly produced, the reports, maps, and data are available from no other source except Lehnhard and Engineering. The information they have which respondents seek, is not only the best and most reliable that is available, it is the only source suggested by anyone. The Kings do not ask that Lehnhard perform future engineering services. The Kings have their own engineers. They contend that they need the basic information that is in the possession of Lehnhard without which their own engineers are unable to make their own studies, and form their own opinions. The documents will disclose facts about the thickness, pressure, fluctuations, and the position of oil and water in the reservoir. These facts are material to the subject matter of the main case and Judge Moore did not clearly abuse his discretion in so holding.

Relator’s second point is that the maps and reports subpoenaed are secret processes, trade secrets, and developments of research, which need not be disclosed under Rule 186b. Relator does not assert an absolute privilege such as exists between an attorney and client, husband and wife, or the privilege against self incrimination. He says that he has shown good cause under Rule 186b why he should not be required to disclose the data. Relator’s employer, Engineering, from information supplied by its members over a span of many years, has assembled maps and reports about the East Texas reservoir which are for the exclusive use of its members. Engineering’s bylaws prohibit disclosure to nonmembers and the Kings are nonmembers. Salt Water Disposal, the defendant in the King action, is also a nonmember.

As a general rule, every citizen has the testimonial duty to give a court of law the information he has. Wigmore justifies the rule upon the principle that “He who will live by society must let society live by him, when it requires to. * * * The pettiness and personality of the individual trial disappear when we reflect that our duty to bear testimony runs not to the parties in that present cause, but to the community at large and forever.” 8 Wig-more, Evidence, § 2192, pp. 72, 73. Wig-more states, however, that trade secrets are entitled to protection and that courts probably require a disclosure only to the extent that it appears indispensable for the ascertainment of truth. The privilege, says Wigmore, should be sparingly permitted because “ * * * no man is to be denied the enforcement of his rights merely because another possesses the facts without which the right cannot be ascertained and enforced.” 8 Wigmore, Evidence, § 2212, pp. 156-157. In re Ebbets’ Will, 155 Misc. 870, 280 N.Y.S. 710 (1935). 58 Am.Jur., Witnesses, § 29. The bylaws of Engineering, of themselves, do not excuse compliance with the subpoena. Mr. Justice Hand rejected the idea that one can create a privilege by an agreement of secrecy, saying, “[T]he very fact that testimonial privileges are based upon specified confidential relations, is proof that they do not extend to all, and it hardly needs to be said that nobody by contract, express or implied, can abridge public duties.” McMann v. Securities and Exchange Commission, 87 F.2d 377, 109 A.L.R. 1445 (2d Cir. 1937). Wig-more on the same subject, says, “No pledge of privacy nor oath of secrecy can avail against demand for the truth in a court of justice.” 8 Wigmore 528, Evidence, § 2286.

Rule 186a outlines a broad area for taking evidence on deposition. Rule 186b then provides for judicial limitations and protective orders. Relator, Lehnhard, is a disinterested expert, and he urges that he should not, against his will, be brought into the action and compelled to disclose information even though it is not otherwise available. The point was presented in Application of Consumers Union of United States, Inc., 27 F.R.D. 251, 253 (S.D.N.Y.1961). The court held that a disinterested person should produce confidential letters about a product it had evaluated, saying:

“The fact that the petitioner is a nonprofit membership organization and desires to preserve the anonymity and confidence of its membership, particularly those who send letters of complaint about various marketed products, including those which Consumers Union has tested, does not exempt it from the duty ‘which the citizen owes to his government * * * to support the administration of justice by attending its courts and giving his testimony whenever he is properly summoned.’ Undoubtedly the duty so imposed at times involves material sacrifice, even invasion of personal privacy, and is carried out at great inconvenience, but this is part of the price we pay to secure the effective administration of justice. The Court, after considering the arguments advanced, finds no constitutional barrier or statutory privilege which, upon the facts here presented, requires that the subpoena be quashed.”

In holding that trade secrets may in the court’s discretion, be disclosed in a discovery proceedings, it was said in United States v. National Steel Corporation, 26 F.R.D. 603 (S.D.Tex.1960):

“One major objection of defendants remains. Defendants assert plaintiff ought not inspect and thereby expose their trade secrets, particularly color processes unique to defendants. While it is true that ‘privileged’ matters are not open to discovery, secret trade processes are not so privileged. 2 Barron & Holtzoff, Federal Practice and Procedure, Sec. 798 (1950). It has been repeatedly held that a party has no absolute right to refuse information upon the sole basis that it involves disclosing trade secrets. Cities Service Oil Co. v. Celanese Corporation, D.C. D.Del.1950, 10 F.R.D. 458, 460. The disclosure of trade secrets rests in the court’s discretion. Our problem is one of weighing the need for discovery against the desirability of maintenance of secrecy of processes. In my opinion the government’s need for the information to be gotten by inspection outweighs defendants’ secrecy requirements on these particular facts.”

Summers v. State, 5 Tex.App. 365, 32 Am.Rep. 573 (1879) was recently cited with approval in State v. Biggers, 360 S.W.2d 516 (Tex.Sup.1962). in Summers a physician refused to testify without compensation on the grounds that his expert knowledge was his property. He had performed an autopsy on the body of his fatally wounded patient, but refused to divulge his findings on the grounds that his knowledge was obtained by professional skill which he considered his own property. The court said, “A medical expert could not be compelled to make a post-mortem examination unless paid for it; but an examination having already been made by him, he could be compelled to disclose the result of that examination.” Accord: Swope v. State, 145 Kan. 928, 67 P.2d 416 (1937); Philler v. Waukesha County, 139 Wis. 211, 120 N.W. 829, 25 L.R.A.,N.S., 1040 (1909). See 29 Tex.L.Rev. 376. Since respondents proved that the facts they seek are material and necessary to their action and that they are unavailable from any other source, the Judge did not clearly abuse his discretion in ordering disclosure. Annotation, 17 A.L.R.2d 383.

Relator also asked Judge Moore to order certain protective measures authorized by Rule 186b. Judge Moore ordered respondents, Mr. and Mrs. King, to pay for the Base Map which relator willingly disclosed, and authorized relator to submit a bill for his expenses and time in taking the additional information from his files. He excused relator from producing most of the data. A grid map was in evidence before the trial judge. It showed that the East Texas Field is divided by Engineering into thirty-one geographic areas which are numbered from north to south. Judge Moore required relator, Lehnhard, to produce data bearing on only the six areas which are nearest the Kings’ land, and which embraced the area of the injection wells about which the Kings complain. Judge Moore refused relator’s request that the information be disclosed with only Lehn-hard, the Kings and their counsel present and that the data be sealed with the court papers. We can not say that these orders were clearly an abuse of discretion. The record shows that the Kings already have a number of the items prepared by Lehn-hard and Engineering. They have the 1965 report of the water level rise, many of the bottom-hole-pressure lists, and most of the isobaric maps. The well pressures are indicated on the isobaric maps but in such density that they are difficult to read. The Kings do not have the maps which show the top and bottom of the reservoir. The record shows that the attorney for the Kings displayed several of these items to the trial judge during the hearing on the motion to quash. The remaining reports and maps are essential to filling in factual gaps. Under these circumstances the trial judge did not clearly abuse his discretion in failing to order other protective measures.

Relator’s prayer for mandamus is accordingly denied.

GRIFFIN and GREENHILL, JJ., dissent.

      . “I, VIRGINIA SCOTT, official Court Reporter in and for the 124th District Court of Gregg County, Texas, do hereby certify that the foregoing pages of typewritten matter is a true and correct transcript of the portion of the hearing reported by me on September 10, 1965, in the foregoing entitled and numbered cause, as well as a true, correct and complete transcript of the testimony of the witnesses, Phillip J. Lehnhard and James H. Keahey, as well as copies of the documentary evidence introduced, remarks of the court and attorneys regarding the ruling on said Motion.”

      . “After notice is served for taking a deposition on written interrogatories or by oral examination, upon motion seasonably made by any party or by the person to be examined and upon notice and for good cause shown, the court in which the action is pending may make an order that the deposition shall not be taken, or that it may be taken only before the court or at some designated place other than that stated in the notice or subpoena, or that it may be taken only on written interrogatories, or that it may be taken only by oral examination, or that certain matters shall not be inquired into, or that the examination shall be held with no one present except the witness and his counsel and the parties to the action and their officers and counsel, or that the deposition shall not be taken by or before the officer having the commission, or that after being sealed the deposition shall be opened only by order of the court, or that secret processes, developments or research need not be disclosed, or that the parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court; or the court may make any other order which justice requires to protect the party or witness from undue annoyance, embarrassment, oppression, or expense.”


author: DICE, Commissioner.

text:
    Timothy A. O’CONNER, Appellant, v. The STATE of Texas, Appellee.
    No. 39496.
    Court of Criminal Appeals of Texas.
    April 13, 1966.
    Richard W. Vaughan, Houston (Court Appointed on Appeal Only), for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Frank Price, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant was convicted under Art. 725b, Vernon’s Ann.P.C., as a second offender, of the offense of unlawful possession of heroin and his punishment was assessed at confinement in the penitentiary for fourteen years.

Trial was before the court — a jury being waived — upon appellant’s plea of guilty to the indictment.

At the trial, a prior alleged felony conviction of the appellant for violation of the Uniform Narcotic Drug Act was stipulated.

It was further agreed and stipulated between the parties that appellant waived the appearance, confrontation, and cross-examination of all witnesses in the case and that the state could offer and the court consider the sworn testimony given by Officer L. W. Moore at an examining trial and the testimony of Chemist-and-toxicologist Floyd E. McDonald “as reflected by a report made by him from a chemical analysis made on several items which were submitted to his laboratory on December 11, 1964.” It was also stipulated “that the testimony as reflected by the examining trial and the report of Floyd E. McDonald is true and correct.”

Pursuant to such stipulation, counsel for the state stated in open court that at the examining trial Officer Moore testified to certain facts, which, in substance, were that on the date alleged in the indictment the officer observed appellant run out the back door of a house and when he “hit” a fence and stumbled he dropped a package described as a yellow paper napkin which contained “two spoons, one medical syringe and one eye dropper, with needles affixed.” The package was picked up by Detective LaFont.

Counsel then stated that if Detective La-Font were present in court he would testify —among other things — that he turned the articles in the package over to Chemist Floyd E. McDonald.

Counsel further stated that if Chemist Floyd E. McDonald were present in court he would testify that he made an analysis of one syringe and needle and one eyedropper and needle and two spoons submitted to the laboratory by Officer LaFont —which examination revealed that the two spoons contained, respectively, 3.05 milligrams and 1.44 milligrams of heroin, that the eyedropper contained 4.58 milligrams of morphine and the syringe contained 0.54 milligrams of heroin, and that heroin is a narcotic drug.

It is insisted that the evidence presented by the state was not authorized by the stipulation entered into between the parties and was therefore insufficient to show appellant’s guilt, as required by Art. 12, Vernon’s Ann.C.C.P.

Specifically, appellant contends that the stipulation which permitted the state to offer and the court to consider the testimony given by Officer Moore at the examining trial and that of Chemist McDonald from his chemical analysis report did not authorize state’s counsel to merely paraphrase Officer Moore’s testimony and state what Chemist McDonald would testify, if present, at the trial. Appellant also points out that the stipulation did not refer to what the testimony of Officer LaFont would have been if he had been present in court to testify.

It is the rule that stipulations are reasonably and liberally construed with a view of effectuating the parties’ intentions. 53 Tex.Jur.2d 327, Sec. 14.

The record shows that appellant, in person, agreed to waive “the appearance, confrontation and cross examination of all witnesses” in the case and stipulated that the state could offer testimony of the witnesses without their being present in court to testify.

No objection was made by appellant to the manner in which the state offered proof under the stipulation.

The evidence offered by the state, under the stipulation, was — contrary to appellant’s contention — of probative value and sufficient to establish his guilt. Ex parte Nash, 165 Tex.Cr.R. 87, 304 S.W.2d 121; Hernandez v. State, Tex.Cr.App., 378 S.W.2d 311.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Leroy PIERCE, Appellant, v. The STATE of Texas, Appellee.
    No. 39603.
    Court of Criminal Appeals of Texas.
    April 27, 1966.
    Rehearing Denied June 1, 1966.

      M. Gabriel Nabas, Jr., Raeburn Norris, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Ted Hirtz and Gerald Applewhite, Asst. Dist. Attys., Houston, Texas and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for burglary; the punishment, enhanced under Art. 63, Vernon’s Ann.P.C., by reason of two prior convictions for felonies less than capital, life imprisonment.

The indictment charged the burglary of a house occupied and controlled by John Strohmer.

Two prior convictions of appellant for felonies less than capital were also alleged for enhancement and stipulated by the parties at the trial.

It was shown by the state’s testimony that the. prosecuting witness, Strohmer, lived in an apartment in the city of Houston. The witness testified that when he woke up on the morning of January 21, 1965, at approximately seven o’clock, he discovered that his television set was missing. Upon investigation it was ascertained that someone had' broken into the apartment and had taken the television set. The witness stated that when he retired the apartment was locked; that he did not give appellant permission to. break into the apartment and take the set; and that he later received the television set back from the police department.

It was further shown by the state’s testimony that subsequent to the date of the burglary, appellant sold the missing television set to the witness Holcomb.

In a conversation with Officer Black which led to the recovery of the stolen television, appellant orally confessed that he had committed the burglary.

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

Appellant’s sole contention on appeal is that the court erred in entering judgment finding him guilty of ordinary burglary, as-defined in Arts. 1389 and 1390, V.A.P.C., because the proof showed that if any offense was committed it was burglary of a private residence at night, as defined in Art. 1391, V.A.P.C., which is a separate and distinct offense.

While it is held that burglary of a private residence at night is a separate and distinct offense from that of ordinary burglary, we do not agree that the evidence is insufficient to support the conviction.

There is no direct proof that the burglary was committed at night.

Although an issue was raised by the evidence as to whether the burglary was committed at night or in the daytime, no request was made by appellant that such issue be submitted to the jury.

“Daytime” is defined in Art. 1396, V.A. P.C., of the burglary statute as meaning “any time of the twenty-four hours from thirty minutes before sunrise until thirty minutes after sunset.”

The term “nighttime,” as it relates to burglary, means any time of the twenty-four hours from thirty minutes after sunset until thirty minutes before sunrise. Parrish v. State, 134 S.W.2d 271.

This court can take judicial notice that sunrise on January 21, 1965, in the city of Houston was at 7:16 a. m. Converse v. State, 141 Tex.Cr.R. 273, 148 S.W.2d 424.

Under the state’s evidence, the burglary could have been committed within the thirty minutes before sunrise and therefore in the daytime.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Timothy A. O’CONNER, Appellant, v. The STATE of Texas, Appellee.
    No. 39498.
    Court of Criminal Appeals of Texas.
    April 13, 1966.
    Richard W. Vaughan, Houston (Court Appointed on Appeal Only), for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Frank Price, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for felony theft; the punishment, ten years.

Trial was before the court, a jury being waived, upon appellant’s plea of guilty to the indictment.

The indictment charged that appellant did take and steal cigarettes of the value of over fifty dollars from one S. L. Cooper, the owner.

The sufficiency of the evidence offered by the state to show appellant’s guilt, as required by Art. 12, Vernon’s Ann. C.C.P., is challenged.

At the trial it was agreed and stipulated by and between the state and appellant that the state could offer into evidence and the court consider the testimony of two witnesses, S. L. Cooper, Jr. and Tommy Matthews, given at an examining trial. It was also stipulated that the testimony was true and correct, and appellant expressly waived the presence of the witnesses in court and his right to cross-examine them.

Pursuant to such agreement and stipulation, counsel for the state in open court stated that S. L. Cooper, Jr., testified at the examining trial that he was manager of Dugan’s Drug Store in the city of Houston; that on a certain date some cartons of cigarettes were removed from the store without his consent and permission; that the value of the cigarettes was in excess of $50; that the person who removed the cigarettes was pointed out to the witness and at the examining trial he identified such person as the appellant, Timothy A. O’Conner.

Counsel for the state further stated in open court that at the examining trial the witness Tommy Matthews testified that on the day in question he was in Dugan’s store and saw the appellant put three or four cartons of cigarettes in his pocket and walk out and that he reported it to the manager.

We overrule appellant’s contention that the narration by the prosecuting attorney lacked probative value because it was not authorized by the agreement entered into between the parties. See: O’Conner v. State of Texas, Tex.Cr.App., 401 S.W.2d 237, this day decided.

We also overrule appellant’s contention that the stipulated testimony fails to show that appellant did steal cigarettes of over the value of $50 from S. L. Cooper, the owner, as charged in the indictment.

The judgment is affirmed.

Opinion approved by the Court.


author: MORRISON, Judge.

text:
    William Coats HODGES, Appellant, v. The STATE of Texas, Appellee.
    No. 39411.
    Court of Criminal Appeals of Texas.
    March 2, 1966.
    Rehearing Denied April 27, 1966.
    Ben Henderson, Dallas, for appellant.
    Henry Wade, Dist. Atty., Don Koons, Arch Pardue, Mike Buckley and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while intoxicated; the punishment, 10 days in jail and a fine of $150.00.

Officers Zachry and Hunicutt of the Dallas Police testified that while on patrol after midnight on the night in question they saw a Thunderbird automobile abruptly cut across a median strip and then bump a curb on Garland Road and that they pursued the Thunderbird which they estimated was traveling 60 miles per hour in a 40 mile zone. After bringing the automobile to a halt, they informed appellant, who was the driver, that they were stopping him for speeding and thereupon asked for his driver’s license. At this juncture, the officers stated that they detected a strong odor of alcohol on appellant’s breath and asked him to step out of the automobile. According to the testimony of the officers the appellant appeared unsteady on his feet as he walked to the rear of his automobile and used the side of his automobile for support. In the automobile with appellant were his wife and another couple; the officers testified that the other male passenger stated, “I know that he’s had too much to drink to be driving”, and asked that he be permitted to drive appellant home. They described appellant’s speech as slurred and incoherent and expressed the opinion that appellant was intoxicated. Since appellant’s wife had no driver’s license, his automobile was carried to the police pound. The officers stated that on the way to the pound and then to the station appellant became belligerent and profane and that he was issued several traffic tickets in addition to being charged with driving while intoxicated.

Appellant established that he had never been convicted of any of the other traffic violations named by the arresting officers, and all four occupants of the Thunderbird gave a detailed account of their activities on the night in question. They explained that they had been to a dance and that each had consumed three drinks of whiskey. They all categorically denied that appellant or any of them were intoxicated and gave as their version of the reason for the arrest that appellant had inadvertently hit the traffic median as they drove away from the club where they had been dancing and had disputed the officers’ word when they accused him of speeding.

The jury chose to accept the officers’ version of appellant’s condition of intoxication and to reject that of appellant and his witnesses, and we find the evidence sufficient to sustain the conviction.

By brief appellant contends that the evidence is insufficient to support the conviction because the State had issued subpoenas for the other couple who, when called as witnesses by appellant, testified that he was sober. He admits that he can find no authority to support his contention, and we are aware of none.

Appellant next contends that the prosecutor erred in eliciting an answer from the appellant that his driver’s license had been suspended. If this was error, it was waived when appellant’s counsel challenged the prosecutor to make proof of such fact.

No reversible error appearing, the judgment is affirmed.


author: McDONALD, Presiding Judge. BELCHER, Commissioner.

text:
    George Pinkney WAITES, Appellant, v. The STATE of Texas, Appellee.
    No. 39029.
    Court of Criminal Appeals of Texas.
    Jan. 26, 1966.
    Rehearing Denied March 23, 1966.
    Second Motion for Rehearing Denied April 27, 1966.
    Roy H. Garwood, Jr., James C. Onion, San Antonio, for appellant.
    Leon B. Douglas, State’s Atty., Austin, Earle Caddel, Uvalde, for the State.
   McDONALD, Presiding Judge.

The offense is driving while intoxicated; punishment was assessed at a fine of $50.00 and confinement in jail for three days.

The statement of facts reveals that at about 11:30 p. m. on April 17, 1964, Patrolman Charles Scoggin of the Texas Department of Public Safety observed an automobile driven by appellant which appeared to be speeding about three miles east of Uvalde in Uvalde County, Texas. After observing appellant for about three-fourths of a mile, during which time he drove from one side of the road to the other about three times, the patrolman stopped appellant.

Patrolman Scoggin testified that appellant was unsteady on his feet; that he smelled of alcoholic beverages; and that based on the manner in which he drove his car, the manner in which he stood, and the manner in which he walked, he (Patrolman Scoggin) was of the opinion that appellant was under the influence of alcohol.

The testimony of Deputy Sheriff J. P. English revealed that he saw appellant when he was brought to the county jail in Uvalde approximately 20 minutes later, and that appellant’s legs were wobbly, his speech was slurred, his breath smelled of alcoholic beverages, and that in his opinion appellant was drunk.

Appellant’s wife testified that she and her husband were traveling from Alpine to San Antonio; that appellant had been drinking beer but was not intoxicated; that she observed nothing unusual about the manner in which appellant walked and talked at the time he was arrested, or in the manner in which he was driving, just prior to his arrest.

Appellant testified that he left Alpine around 3:30 p. m.; that he stopped in Com-stock where he ate and had two beers; that he had one other beer at Brackettville; and that these three beers were all he had to drink that day; and that he was not intoxicated.

The cafe operator at Comstock testified that appellant was not intoxicated when he saw him, and other witnesses testified that appellant had a good reputation as a peaceable, law-abiding citizen.

The fact issue was resolved against appellant, and we find the evidence sufficient to sustain the conviction.

It is appellant’s contention that the court accepted an illegal verdict. The facts, as certified by the trial court in appellant’s Formal Bill of Exception Number One, which was not accepted by appellant, reveal the following:

After deliberating for approximately one hour and fifteen minutes, the jury returned to the courtroom and reported that they were unable to reach a verdict. The court stated that he had no desire to hold them if this were true, but asked them as a body if they felt they could reach a verdict with further deliberation. Several of the jurors expressed the opinion that further deliberation might prove fruitful, and the court instructed the jury to return to the jury room and deliberate further. Approximately 20 minutes later the jury returned to the courtroom and informed the court that a verdict had been reached, but that the verdict had not been signed. Quoting from the formal bill of exception, the following then transpired:

“Whereupon the Court asked him if they had reached a verdict and the foreman said, ‘Yes, we have, we have decided to give the Defendant a minimum sentence of a fifty dollar fine and three days in jail,’ but asked the Court to suspend the jail time. Whereupon the Court advised him that he could not suspend the jail term and that he would have to declare a mistrial. The foreman then stated that they had actually reached the verdict of fifty dollar fine and three days in jail and only wanted to ask the Court to suspend the jail sentence and if he could not do so, they still wanted their verdict to stand, Whereupon the Court polled the jury and asked them if this was actually their verdict and they all said it was, Whereupon the Court instructed the foreman that it would be necessary that he fill out and sign their verdict, but due to the fact that it would be necessary for the jury to climb the stairs to the third floor to the jury room the Court instructed him that he could do so while the jury was in the jury box. Whereupon the foreman stated that he was so nervous he could not fill out the verdict and turned to the County Clerk who was standing in front of him and asked the Clerk to fill out the verdict showing fifty dollar fine and three days in jail, which the Clerk did. After which the foreman signed the verdict in open court. Whereupon the Judge again polled the jury asking them if this was their actual verdict and they all stated that it was. Whereupon the verdict was received by the Court and the jury discharged.”

We overrule appellant’s contention that the action of the trial court amounted to direction of the verdict. From the facts set out above, it appears that the able trial judge was careful to afford appellant every consideration throughout jury deliberations and acceptance of the verdict, and that the verdict he accepted represented the untrammeled conclusion of each member of the jury. The procedure followed by the trial court is in accordance with the provisions of Article 696, Vernon’s Ann.C.C.P., then in effect, and we fail to see that appellant was denied any substantial right. We note also that the formal bill of exception fails to show that appellant made any objection or registered any sign of disfavor with these proceedings. Shaver v. State, 155 Tex.Cr.R. 395, 234 S.W.2d 863.

The trial court refused to include in his charge an instruction that a person convicted of driving while intoxicated would automatically lose his driver’s license for a period of six months. Appellant’s contention that such refusal constituted reversible error was overruled by this Court in Harward v. State, Tex.Cr.App., 398 S.W.2d 127, handed down on January 19, 1966, and in cases cited therein. This cause was tried November 4, 1964. The amendment to Art. 6687b, Vernon’s Ann.Rev.Civ.St., referred to by appellant was not effective until August 30,1965.

Over appellant’s objection, Patrolman Scoggin testified that enroute to the jail about 10 minutes after appellant was stopped, and “about a half mile away between where I stopped Mr. Waites and Uvalde”, the following words were exchanged between the officer and appellant:

“Mr. Waites said, ‘If you want to get tough about this, we will,’ and I asked Mr. Waites, I said, ‘Are you threatening me, Mr. Waites?’ He said, ‘No, if you want to get tough about it, we will. If you want to settle this, we will.’ ”

This testimony was objected to by appellant on the grounds that it was inadmissible under Article 727, Vernon’s Ann. C.C.P., and further that it was not admissible as part of the res gestae. We first observe that the statements of appellant do not appear to be in the nature of a confession. We further note that the trial court was careful to exclude statements made after appellant arrived at the jail about 20 minutes after his arrest which the judge felt were not admissible as part of the res gestae. The statements of appellant were made shortly after he was placed in the patrol car in close proximity to the time and place of his arrest, and appear to have been spontaneously made incident to that arrest and while appellant was still excited from the events which had transpired at the scene of his arrest. We do not think the trial judge erred in admitting these statements into evidence. See Fowler v. State, Tex.Cr.App., 379 S.W.2d 345. The statement found inadmissible in Lindsey v. State, 172 Tex.Cr.R. 101, 353 S.W.2d 444, cited in appellant’s brief, is distinguishable from the statement made by appellant in the present case. In Lindsey the statement manifested a cool mind and studied reflection by the speaker, whereas the statement here appears to have been made on impulse. The other cases cited by appellant can be distinguished on their facts.

We have considered each of the remaining informal bills of exception and are convinced that appellant has presented no reversible error.

The judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

BELCHER, Commissioner.

Complaint is again made of the following definition given in the charge to the jury:

“By the term ‘under the influence of intoxicating Liquor’ is meant that a person has taken into his stomach a sufficient quantity of intoxicating liquor to deprive him of the normal control of his bodily or mental faculties.”

Appellant insists that reversible error is shown because the portion of the definition which reads “to deprive him of the normal control of his bodily or mental faculties,” should have been given in the conjunctive instead of the disjunctive. We do not agree.

It is re-urged that the trial court should have charged the jury that a person convicted of driving while intoxicated would automatically lose his driver’s license for a certain period of time.

This offense was alleged to have been committed on April 17, 1964, and the trial was had November 4, 1964. The punishment authorized for driving while intoxicated at said time is controlled by Art. 802, Vernon’s Ann.A.P.C. which was in effect at the time of the commission of the alleged offense. Kirk v. State, Tex.Cr.App., 401 S.W.2d 596, dated March 9, 1966. No error is presented.

The other contentions re-urged have been considered and they present no reversible error.

The motion is overruled.

Opinion approved by the court.


author: BELCHER, Commissioner.

text:
    Patrick J. SULLIVAN, Appellant, v. The STATE of Texas, Appellee.
    No. 38910.
    Court of Criminal Appeals of Texas.
    March 9, 1966.
    Rehearing Denied April 27, 1966.
    Bob L. Thomas, Waco, counsel on appeal, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for the possession of obscene photographs; the punishment, one year in jail.

The prior opinion dismissing the appeal is withdrawn, and the appeal is re-instated.

The testimony of the state reveals that Officer Powers advised the appellant at the door of his house that he had information that he had obscene photographs, and the appellant gave him consent to search his house. In searching the house on February 17, Officer Powers found a pack of forty-six photographs and two rolls of film which were close together in the ceiling of the kitchen of appellant’s house. Photographs had been seen in appellant’s house after his arrest on October 31, for having possession of obscene photographs which were found in the attic. The appellant had a darkroom and photography equipment in his house.

It was stipulated that the photographs were obscene. However, the photographs were introduced in evidence and exhibited to the jury. The term “obscene” as applicable to photographs was defined in the court’s charge to the jury.

Testifying in his own behalf, the appellant stated that on February 17, Officer Powers found some photographs and two rolls of film in the ceiling of his residence; that he did not know that the photographs were in the attic; that the officers found and seized all the photographs in the attic and house on October 31, and for such possession he had been convicted; that since October 31, he had not had any photographs and had no knowledge of any in the ceiling; and that he knew the two rolls of film were in the attic. He further testified that a photographer who lived at his house may have brought them there.

The jury resolved the issues of fact against the appellant and the evidence is sufficient to support their verdict.

The complaint of the failure of the court to respond to objections to the court’s charge cannot be considered because there is no showing that they were timely presented to the trial court or that he acted thereon. Marr v. State, Tex.Cr.App., 383 S.W.2d 928.

The judgment is affirmed.

Opinion approved by the Court.