author: MAUGHMER, Commissioner.

text:
    Sandra Lynn GARDNER, by Her Next Friend, Dorothy E. Gardner, Plaintiff-Respondent, v. Ralph M. ANDERSON, Defendant-Appellant.
    No. 24536.
    Kansas City Court of Appeals. Missouri.
    April 3, 1967.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 5, 1967.
    Application to Transfer Denied Sept. 11, 1967.

      Jack G. Beamer, Robert J. Mann, McKenzie, Williams, Merrick, Beamer & Stubbs, Kansas City, for appellant.
    Lantz Welch, Kansas City, Quinn, Pee-bles & Hickman, Kansas City, of counsel, for respondent.
   MAUGHMER, Commissioner.

Dog bite case. There was a verdict and judgment for plaintiff in the sum of $15,000, and defendant has appealed.

The occurrence took place about 8:00 p. m. on August 13, 1963. The plaintiff, Sandra Lynn Gardner, is a little girl and at the time was nine years old. She lived with her parents near Grandview and not far from the home of defendant Ralph M. Anderson. Sandra was riding her bicycle down the street in front of defendant’s residence. She and her two young brothers stopped near the railroad tracks where they found some chalk or sheetrock and were “drawing on the street”. She said they were joined by defendant’s children; that they were all talking when Samantha, a female German Shepherd dog (three years old and weighing about 90 pounds) owned by defendant, “jumped up on me and bit me”. Plaintiff said the dog bit her first on the face and then on the hip. Sandra denied that she had “teased” or “been mean to the dog”. It was her testimony that the dog then went down the street and Mrs. Anderson (defendant’s wife) came out. She said that a few days earlier the Anderson children had “sicced” the dog on her but she had not been molested at that time.

Sandra was taken to the Baptist Memorial Hospital in Kansas City, where she was treated by Dr. R. E. Chandler, M. D., a plastic surgeon. He described her wounds as a laceration from the corner of the mouth, 1½ or 2 inches long, and another up the cheek approximately 2½ inches in length. The lower one was a through-and-through laceration, passing through all the layers of the soft tissues of the face. The teeth could be seen through the cut and the edges were ragged, jagged and torn. There were multiple punctuate wounds of the face with a laceration of the right cheek, lateral to the ear which was one inch in length. There were two wounds on the right buttocks, with abrasions over the knees and shins. The right angled tear on the mouth and cheek was repaired with five series of stitching. A sixth series of stitching was done around the lip. The wounds on the buttocks and in front of the ear were also stitched. The facial wounds were treated by surgery — plastic repair and reconstruction. Dr. Chandler last examined plaintiff on September 20, 1965, just over two years after the injury. At that time he found that the scars on the ear, cheek, eyelid and the right buttocks had “faded to a point to where they are not cosmetically objectionable”. With reference to the other scar which he described as “L” shaped, he recommended further surgery to be done when she was about 14 years old. He said that even though such procedure were followed, the scar would in part remain.

We shall first summarize the evidence adduced by plaintiff in support of the proposition that prior to the occasion when plaintiff was bitten, the dog Samantha possessed dangerous and vicious propensities and defendant kept or harbored the dog after he had knowledge, actual or constructive, of such vicious propensities.

(1)Deputy Sheriff Robert White was offered as a witness, but except for the fact that he had removed the dog, his proffered testimony was wholly hearsay and was properly excluded by the trial court.

(2) Sandra Sue Hughes, 12 years old in 1965, at the time of trial, lived across the street from defendant in the year 1963. She testified that on one occasion she saw Samantha jump out of or through a window; that one day in the spring of 1963, she was visiting in defendant’s home and watching television when the “dog started growling”, “I bent down to pet the dog and the dog bit me on my nose”. She was asked “Did the bite leave a mark on you?” Her answer was “No, sir”. On cross-examination, she was asked: “But the question is, it really didn’t bite you, did it?” Her answer: “I don’t know”. She said there was some blood on the bridge of her nose. She admitted ill feeling developed thereafter between her family and that of the defendant, but it did not arise out of this incident. Sandra received no medical attention because of this injury.

(3) Mrs. Charles P. Hughes, mother of Sandra, testified. She said the dog growled a lot” and defendant told them not to pet her too much. She said Sandra came home on the day the dog bit her, crying, and with her hand up to her mouth. Mrs. Hughes described how she washed or wiped the blood away, “that it was just a scratch, I guess, but the skin was broken”. She said there was just one mark on the bridge of her nose and you couldn’t tell from looking at it whether she had bumped into something or had been bitten.

(4) Mr. Charles P. Hughes, father of Sandra, stated that the defendant told him he was “training the dog to be a watch dog and for us not to pet him because he didn’t want him to be friendly”. He said he was working in his garage one day and the dog “came up and growled at me, so I just asked Andy if he would please keep the dog over there * *

(5) The plaintiff herself testified. She was eleven years old at the time of trial. In addition to describing the attack on August 13, 1963, she said that on two other occasions when she was riding her bicycle down the street she heard defendant’s children say to the dog: “Sic ’em, sic ’em” and then they grabbed her by the collar or fur so that she stayed in the yard. She said the dog never chased her. It was her testimony that she was kneeling and drawing with chalk on the road when Samantha suddenly attacked and bit her. She denied that she had teased the dog or thrown things at her. She recounted no misbehavior prior to the one when she was injured.

(6) On rebuttal, plaintiff produced the testimony of Mr. Arthur Stein, a stenotype reporter, who made notes when plaintiff’s attorney interviewed Jenine McKinney, defendant’s step-daughter. His testimony was that Jenine at that time told them that the dog once “snapped at a girl named 'Kim’ ”.

There was no affirmative testimony that the incident where the dog either bit or bumped Sandra Hughes was called to the attention of the defendant, Robert M. Anderson. Neither Mr. Hughes, Mrs. Hughes nor Sandra ever told him, but Mrs. Hughes said she talked with Mrs. Anderson about it. Mrs. Anderson testified she did not remember if she did or did not tell her husband. The defendant said he first heard about it after the dog bit the plaintiff.

Defendant’s evidence was to the effect that the dog had been provoked. The defendant’s premises at the time were in a rural area and consisted of a small acreage. Frequently picnics were held there—by a boys’ baseball team and other groups. The dog ranged freely on those occasions and no picknicker was attacked or bothered. However, in determining whether or not plaintiff made a submissible case and if defendant’s motion for directed verdict should have been sustained, we must view the evidence in the light most favorable to plaintiff and we must accept plaintiff’s evidence with all reasonable inferences deducible therefrom as true. Maxwell v. Fraze, Mo.App., 344 S.W.2d 262, 263, 265. We shall disregard defendant’s evidence unless it aids plaintiff’s case. Robidoux v. Busch, Mo.App., 400 S.W.2d 631.

In an action against the owner or harborer of a dog for injury inflicted by it, an essential element of the cause of action is defendant’s actual or constructive knowledge of the vicious or dangerous propensities of the dog. Maxwell v. Fraze, supra, 344 S.W.2d page 264; Clinkenbeard v. Reinert et al., in Banc., 284 Mo. 569, 225 S.W. 667, 669, 13 A.L.R. 485. Mitchell v. Newsom, Mo.App., 360 S.W.2d 247 is a dog bite case. Plaintiff there was a child eight years old. The dog was allowed to run loose. There was evidence that he “barked at the trash man” and that about one week before plaintiff was bitten, the dog “jumped at” and “snapped at” a boy in the neighborhood. It was held plaintiff failed to make a submissible case.

This court (Patterson v. Rosenwald et ux, 222 Mo.App. 973, 6 S.W.2d 664, syllabus 1) stated:

“In Missouri, a cause of action based upon the harboring or keeping of a vicious dog is not grounded on negligence, but the gist of the action is the keeping of a vicious dog after knowledge of his vicious propensities, and action is founded upon the theory of maintenance of a nuisance rather than upon negligence”.

Whether the fault be styled nuisance or negligence, the essence of the cause of action is the keeping of a vicious dog unrestrained, after knowledge, actual or constructive, of his vicious propensities.

In Humes v. Salerno, 351 S.W.2d 749, 752, our Supreme Court quoted with approval as follows from O’Neill v. Blase, 94 Mo.App. 648, 68 S.W. 764, 770:

“ ‘It is not essential to the owner’s liability that he should have notice of the particular sort of act which produces the injury by an animal in a case like this. He must not wait until his dog bites somebody before taking notice of his dog’s conduct, where it has been such as to warn a man of ordinary prudence that the animal is ferocious or vicious in disposition’

This Humes case had to do with a vicious stallion. There was ample evidence as to his vicious propensities. He would “fight in the gates”, “tried to flip on me — fall over backwards”. In the paddock he reared up and struck at the groom, tried to paw him with both feet. The horse “kicked back on me”, he did a “sun fish” at the starting gate “twisted and dropped me and when I hit the ground he tried to savage me”. He ran with his ears laid back, an indication that a horse is about to bite or “savage” in some other manner. He was mean. “The trainer and I (jockey) and the man who owns him, we didn’t know what was wrong with him.” The horse “went into a rage” and “nailed” plaintiff’s right leg between his teeth, stumbled and “still had me in his mouth, on the ground, and growling like a lion”. The acts of proved prior behavior showed viciousness and the court so ruled.

Plaintiff relies to a great extent on the decision of this court in Merritt v. Match-ett, 135 Mo.App. 176, 115 S.W. 1066, which was decided in 1909. In that case the dog followed defendant’s store delivery truck. The court summarized the evidence as to the vicious propensities of the dog and the actual injury of plaintiff as follows:

“Not only was he prone to attack dogs, and other domestic animals without provocation, but on some of his excursions with the delivery wagon he rushed at people as though he intended to do them bodily harm. There is no proof that he ever bit a person, but he is depicted, in the evidence of plaintiff, as being a canine bully that delighted in terrifying people and animals with ferocious demonstrations. On August 10, 1907, plaintiff, then in a pregnant condition, was sitting on the front porch of her residence when the delivery wagon passed along the street. The dog was following the wagon, and, when opposite the premises of plaintiff, suddenly, and without provocation, charged at her. He jumped the front fence, rushed up on the porch, and jumped at plaintiff in a ferocious and terrifying manner. Plaintiff, greatly excited, managed to push him away with her arms. He fell, striking his breast on the edge of the porch, got up, ran over to an adjoining house, snapped at a woman standing on the porch of that house, and then suddenly turned and ran after the wagon”.

In this Merritt case the court commented that under plaintiff’s evidence the dog had “acquired the habit of assailing people with the appearance of ferocity and viciousness”. The opinion on the question of notice, states:

“By showing, as she did, that the dog on a number of earlier occasions attacked people without provocation, she proved that the attack in question was the result of a fixed habit or propensity. In accepting plaintiff’s evidence the jury were entitled to infer that defendant, who had harbored the dog a long time, knew of its vicious or mischievous habits and propensities”. (Italics supplied).

In 3 C.J.S. Animals § 148, page 1249, the rule is set forth this way:

“Generally the owner of a domestic animal is under no obligation to guard against injuries which he has no reason to expect on account of some disposition of the individual animal different from the species generally if he has no notice of such disposition. Hence, if the injury has resulted from the exercise of a vicious propensity, which is not natural to the class of animals to which the offending animal belongs, the owner or keeper of the animal is usually not liable if he did not have previous knowledge or scienter of the vicious propensity”.

For the latest decision of a Missouri appellate court on this type of case see Boyer v. Callahan et al., Mo.App., 406 S.W.2d 805, in which the same principles, which we have herein recited, were reiterated and redeclared.

Among the contentions on appeal, defendant insists that he never learned about the Sandra Hughes incident until after the dog had bitten Sandra Gardner, and that the communication of that information to his wife, does not charge him with such knowledge. For the purpose of ruling on whether or not defendant’s motion for directed verdict at the close of all of the evidence should be sustained, let us assume that the jury might be authorized to charge defendant with knowledge of everything contained in plaintiff’s evidence, including all reasonable inferences deducible therefrom. From such a viewpoint, just what did plaintiff’s evidence show? We believe it might be said to show the following, but no more.

First. The dog barked at people on various occasions.

Second. Once the dog jumped through a window — no further details or explanations were given.

Third. The dog growled on a few occasions.

Fourth. The dog chased children who were riding bicycles in front of defendant’s house. She barked and snapped at the riders but never bit one.

Fifth. Once in defendant’s living room Sandra Hughes, a girl 10 years old, who was sitting in a chair “reached down to pet him” and the dog either bit her on the nose or bumped her on the nose. The girl was not sure which. The injury (as described by her parents) was just a scratch, was gone the next day and there were no visible teeth marks, but the “scratch” had blood on it. It is difficult to reasonably conclude that a large dog, such as Samantha, could bite a person on the nose and leave no teeth marks, or any wound except a “scratch”. Neither the child nor the parents asserted that she had been bitten. The testimony of plaintiff herself had to do almost entirely with the August, 1963 attack.

Sixth. The dog was allowed to roam freely and was present on defendant’s five acre tract when small groups were picnicking, but no incidents of biting, or attacks or evidence of viciousness were shown to have occurred.

Seventh. The rebuttal testimony ascribed to Jenine McKinney, who allegedly said that upon one occasion the dog had snapped at a girl identified only as “Kim”. There was no further evidence tending to indicate vicious behavior.

From this evidence could reasonable men conclude that this particular dog possessed vicious or dangerous propensities so as to require her owner, in the exercise of ordinary care, to keep the dog restrained or be liable in damages if she bit or attacked or injured some person? Does it show that she possessed a disposition different from her species generally and of vicious propensities? If the evidence presented is sufficient evidence under which reasonable men might conclude that the dog was possessed of vicious and dangerous propensities and that her owner, in the exercise of ordinary care, should not allow her to run loose so that she might have an opportunity to attack or injure or bite some person, then plaintiff presented a submissi-ble case and defendant’s motion for directed verdict was properly overruled. Otherwise, it was error to deny the motion.

There is a common expression that a dog is entitled to one bite and after that his owner is liable for any future bites. This is not the law and is not supported by the decisions. It is not necessary for the dog to have bitten someone before if the evidence discloses vicious propensities, which could include assaults or threatened attacks without biting. In addition, the bare fact of a prior bite does not in and of itself establish the vicious propensity. The controlling element is whether the dog has been shown to have a vicious propensity for biting or for assault or other vicious behavior. Maxwell v. Fraze, 344 S.W.2d pages 264, 265, supra.

The plaintiff, a little girl, suffered real and serious injury. However, we reluctantly conclude, under the law of Missouri as declared in the opinions cited herein, that defendant was not negligent. Defendant could not have known that the dog had exhibited vicious propensities, for the simple and primary reason that under the evidence there was no proof showing any such propensities. Specifically, we rule that under the evidence presented, reasonable men could not conclude that, prior to the time plaintiff was bitten, the dog was possessed of vicious or dangerous propensities, so as to require defendant, in the exercise of ordinary care, to either restrain the dog or have her destroyed. This being so, we conclude that defendant’s motion for directed verdict submitted at the close of the case should have been sustained, and that it was error not to do so. We believe that plaintiff failed to make a submissible case for the jury. The determination we have made on this point is decisive as to the case. It is not therefore necessary to consider the other assignments of trial errors.

The judgment for plaintiff is reversed and judgment for defendant is entered.

'SPERRY, C., concurs.

PER CURIAM.

The foregoing opinion of MAUGHMER, C., is adopted as the opinion of the Court.

All concur.


source: Caselaw Access Project

author: PALMORE, Judge.

license: Public Domain

text:
    HARRISON’S SANITARIUM, INC., Appellant, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HEALTH, Appellee. Virgia M. JACKSON et al., Appellants, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HEALTH et al., Appellees.
    Court of Appeals of Kentucky.
    June 30, 1967.

      William H. McCann, Brown, Sledd & McCann, Lexington, for Harrison’s Sanitarium.
    James E. Thornberry, Louisville, for Vir-gia Jackson.
    Robert Matthews, Atty. Gen., David B. Sebree, Asst. Atty. Gen., Edward F. Prich-ard, Frankfort, for Com., Dept, of Health.
    Paul E. Tierney, J. G. Childers, Frankfort, for Com., Dept, of Economic Security.
    Fred M. Goldberg, Goldberg & Lloyd, Louisville, for Louisville and Jefferson County Bd. of Health.
   PALMORE, Judge.

These consolidated actions challenge the validity, as applied to the complaining parties, of certain administrative regulations of the Department of Health, the Department of Economic Security, and the Louisville and Jefferson County Board of Health which have the effect of increasing the minimum room size and space per bed required in nursing homes and rest homes, thereby reducing the number of resident patients the various plaintiff institutions are licensed to accommodate.

The trial court denied temporary injunc-tive relief and dismissed the actions on the grounds that (1) the facts alleged in the complaints do not indicate irreparable injury with no adequate remedy at law and (2) the plaintiffs had failed to exhaust the administrative remedies available to them. We shall discuss these grounds in reverse order.

In Goodwin v. City of Louisville, 309 Ky. 11, 215 S.W.2d 557 (1948), Louisville and Jefferson County P. & Z. Comm, v. Stoker, Ky., 259 S.W.2d 443 (1953), and Kentucky Bd. of Hairdressers, etc., v. Stevens, Ky., 393 S.W.2d 886 (1965), it was recognized that a party may have direct judicial relief without exhaustion of administrative remedies when there are no disputed factual questions to be resolved and the issue is confined to the validity or applicability of a statute or ordinance. The appellees seek to distinguish this case on the fact that we are here concerned with administrative regulations rather than statutes or ordinances. Presumably an agency could find its own regulation invalid, or invalid as applied to a particular litigant, whereas it might be obliged to assume the validity of a statute. However, we do not perceive a substantial difference. Administrative regulations properly adopted and filed have the full effect of law and are required to be enforced. KRS 13.081. Procedures designed to afford hearings to licensees and applicants for licenses are not applicable to the formulation of legislative regulations. Once promulgated, an administrative regulation is final in the same sense that a legislative act is final. One does not appeal from an action that is essentially legislative in character.

Another basis on which some courts have held the exhaustion requirement inapplicable when the issue is the validity of a regulation is that the administrative proceeding probably would be an exercise in futility. Davis, Administrative Law Treatise, § 20.07 (Vol. 3, p. 99); Jaffe, Judicial Control of Administrative Action, p. 44-9. But a more practical rationale is that if a person immediately affected by a regulation must either comply with it or violate it and await the consequences he simply does not have a reasonable, and therefore adequate, alternative to initiating a challenge in court. Especially is this so when, as in these cases, a violation subj ects him to criminal sanctions as well as forfeiture of his license. He cannot reasonably be expected to live indefinitely under a sword of Damocles.

We realize, of course, that the same situation may exist by reason of factual circumstances that are in dispute, or which create uncertainty with regard to the applicability of particular regulations. This merely illustrates that there is a gray area which may have to be explored on a case by case basis as the need arises. The single issue presented by the cases now before us is the validity of regulations that have the effect of making it illegal for the several appellants to continue using their property in a manner that was not illegal before the promulgation or amendment of the regulations in question. They have no way of initiating or precipitating a challenge except by a proceeding in court. We hold the requirement of exhaustion to be inapplicable.

In Kendall v. Beiling, 295 Ky. 782, 175 S.W.2d 489 (1943), and Pritchett v. Marshall, Ky., 375 S.W.2d 253 (1964), this court declined to interfere in controversies which were already the subject of pending administrative proceedings. Aside from other differences, the salient distinguishing feature of those cases is that action had been taken to precipitate a resolution of the controversy through the administrative proceeding. In this case, we might be equally reluctant to entertain the actions if the administrative avenue had been opened first by some affirmative action to penalize or revoke the license of one or more of the appellants. Cf. Heyser v. Brown, 299 Ky. 82, 184 S.W.2d 893, 894 (1945).

The considerations applicable to a grant or denial of temporary injunctive relief are discussed in Oscar Ewing, Inc. v. Melton, Ky., 309 S.W.2d 760 (1958), and in Clay’s Kentucky Practice, CR 65.04, Comment 3. See also Jaffe, Judicial Control of Administrative Action, p. 687 et seq., mentioning additional factors such as the balancing of public and private interests and the likelihood, vel non, that the applicant will prevail on the merits. Though “irreparable injury” is the time-honored handle it is not easy to grip. “The Supreme Court has often assumed without discussion that enforcement of regulations may be enjoined whenever a violator is subject to criminal penalty, without any special showing of imminence of irreparable injury or of threat of enforcement.” Davis, Administrative Law Treatise, § 21.06 (Vol. 3, p. 150). We are inclined to the same view. The appellants are the ones who seek to maintain the status quo, and there is no emergency situation by reason of which the public interest is likely to suffer from a stay of enforcement pending disposition of this litigation in the trial court. Though we express no opinion as to the prospect that appellants may succeed on the merits, nevertheless we are of the opinion that they are entitled to injunctive relief pending the effort.

The judgment is reversed and the cause remanded for further proceedings consistent with this opinion.

All concur.

      I. See KRS 211.260; KRS 216.440; KRS 216.480; KRS 216.690.

      . Cf. KRS 211.990(2).

      . As a matter of fact, the decided case law on the subject, state and federal, gives the appearance of an impenetrable jungle.

      . Cf. City of Louisville v. Thompson, Ky., 339 S.W.2d 869 (1960).


text:
    CITY OF PIKEVILLE, Kentucky et al., Appellants, v. UNITED PARCEL SERVICE, INC., Appellee.
    Court of Appeals of Kentucky.
    June 30, 1967.
    Ó. T. Hinton, Pikeville, for appellants.
    George M. Catlett, Frankfort, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for appellee.
   PALMORE, Judge.

The City of Pikeville appeals from a judgment enjoining it from attempting to enforce its occupational license tax ordinance against United Parcel Service, Inc., which, according to stipulation, “is an irregular route common carrier by motor vehicle operating in intrastate commerce in Kentucky * * * under the authority of a certificate of public convenience and necessity issued by the Kentucky Department of Motor Transportation” and “is subject to the provisions of Chapter 136 of the Kentucky Revised Statutes in the reporting and payment of franchise and ad va-lorem taxes through the Kentucky Department of Revenue.”

The trial court found the carrier exempt under KRS 281.830 (2), which provides as follows:

“No city may impose a license fee or tax upon any motor vehicle operated under a certificate or permit, except that a city may impose a license fee or tax upon a taxicab as set out in subsection (5) of KRS 281.-815.”

KRS 92.281 authorizes cities to levy any and all taxes provided for in § 181 of the Constitution, subject to the following proviso :

“(3) This section shall not in any wise repeal, amend, affect or apply to any existing statute exempting property from local taxation or fixing a special rate on proper classification or imposing a state tax which is declared to be in lieu of all local taxation, nor shall it be construed to authorise a city to require any company that pays both an ad valorem tax and a franchise tax to pay a license tax.” (Emphasis ours.)

The ordinance in question imposes a license fee or tax “for the privilege of exercising the right to engage in trade, occupation or profession” in the city, in an amount equal to 1% of salaries, wages, commissions or other compensation earned or, in the case of business entities, 1% of net profits. Taxpayers doing business both in and out of the city are required to pay on the basis of an allocation formula. Each must pay a minimum. A minimum of $50 is applicable to: “Unloading, or loading, all commercial trucks using the streets of Pikeville for parking while loading or unloading and not operating under another license.”

The city contends that KRS 281.830 (2) is inapplicable because the levy is not a tax on a motor vehicle and that KRS 92.281 (3) applies only when the company pays an ad valorem tax or franchise tax directly to the city or to the state for the benefit of the city.

In City of Pineville v. Meeks, 254 Ky. 161, 71 S.W.2d 33 (1934), a regulatory “permit” fee based on the number and size of trucks was held to be in essence a license fee or tax on the vehicles. In Meeks Motor Freight v. Ballard, 283 Ky. 404, 141 S.W.2d 569 (1940), City of Russell v. Fannin, 296 Ky. 236, 176 S.W.2d 384 (1943), and Commissioners of Sinking Fund v. Our Own Deliveries, Ky., 382 S. W.2d 878 (1964), there was no doubt that the ordinances imposed license fees for the use of motor vehicles. These are the four decisions on which the carrier relies in contending it is exempt by virtue of KRS 281.-830 (2). It will be observed, however, that the levy in question has no direct relation to the use of vehicles upon the streets of Pikeville except insofar as the business of loading and unloading commercial trucks is placed in a classification for purposes of minimum fees. The ordinance is directed at the doing of business, not the use of vehicles. It would apply to United Parcel Service if it did business entirely on foot out of a packsack. It is our conclusion that an ordinance imposing an occupational license tax or fee the amount of which is based directly on compensation or profits received from business done in the corporate bounds of the municipality regardless of type of business or occupation does not become a tax upon motor vehicles merely because a particular business otherwise subject to the fee or tax involves the use of motor vehicles. We are of the opinion also that the identification of commercial trucking as a class of business for purposes of minimum fees does not have the effect of converting the levy to a license fee or tax upon motor vehicles.

KRS 281.830 (2) prohibits a city from taxing or requiring the licensing of certain motor vehicles. The ordinance in question does neither. It imposes a license fee on the doing of business. Cf. City of Louisville v. Sebree, 308 Ky. 420, 214 S. W.2d 248 (1948).' Hence we are unable to accept the premise on which the judgment is expressly founded.

KRS 92.281 is the statute by which the General Assembly has exercised its authority under Const. § 181 to delegate to cities the power of imposing license fees on “franchises, trades, occupations and professions.” Clearly subsection (3) is a reservation, or withholding, of that power with respect to companies that pay both ad valorem and franchise taxes.

We find no authority, and none is cited, for the proposition that KRS 92.281 (3) applies only when the company pays ad valorem and franchise taxes — whether one or the other or both — to the city in question. KRS 136.120, 136.170 and 136.-180 make provision for allocating and apportioning among local taxing units all assessments made by the Department of Revenue upon property (including franchises) subject to taxation by those local units. Presumably, therefore, the value of its franchise and other property is apportioned in accordance with KRS 136.120, 136.170 and 136.180. If the City of Pikeville is entitled to but does not participate in the apportionment, the problem is one of administration and does not affect the applicability of KRS 92.281 (3).

It is our opinion that the purpose of KRS 92.281 (3), insofar as it pertains to the type of case now before us, is to prohibit any city from imposing a license tax of any kind upon a company that pays ad valorem taxes on its property at its taxable situs and pays franchise taxes to the various local units to which its franchise assessment is apportioned and certified pursuant to the terms of KRS Chapter 136. On that basis, the judgment entered by the trial court is correct.

The judgment is affirmed.

All concur.


author: MILLIKEN, Judge. •

text:
    Pauline HUTCHINSON, Appellant, v. SKILTON CONSTRUCTION COMPANY, Appellee.
    Court of Appeals of Kentucky.
    June 30, 1967.

      Lasserre Bradley, Marvin Henderson, Lexington, for appellant.
    John W. Morgan, Allen, Duncan, Duncan & Arnold, Lexington, for appellee.
   MILLIKEN, Judge. •

This is an appeal from a judgment of the Madison Circuit Court affirming the action of the Workmen’s Compensation Board denying compensation. The appellant is the widow of Roy Hutchinson who resided in Lexington and worked in the construction trade on the campus of Eastern State College in Richmond, Kentucky. He died shortly after arriving upon the job on the morning of March 3, 1965. The medical proof is conclusive that the decedent met his death as a result of “advanced coronary artery arteriosclerosis.” An autopsy disclosed that the deceased had a very bad heart condition of long standing —that the wall of the left side of the heart was thickened and there was an aneurys-mal dilation of the left ventricle. The testimony is indefinite as to whether the deceased did any work on the morning of his fatal attack. He had had no breakfast except coffee and complained of being very sick at the stomach.

It is contended that we should hold the mere presence on the job, accompanied by the stress and strain that goes with construction employment, is sufficient to support an award where the death is caused by myocardial infarction, commonly referred to as heart attack.

This contention overlooks the fact that the law clearly requires an applicant to meet the burden of proof by showing that the decedent’s death from a heart attack was work connected as in Grimes v. Goodlett and Adams, Ky., 345 S.W.2d 47 (1961), and Young v. Eastern Coal Corporation, Ky., 408 S.W.2d 464 (1966), where the medical testimony established that the deaths were work connected, but in Kelly Contracting Company v. Robinson, Ky., 377 S.W.2d 892 (1964), we concluded there was not adequate proof that the fatal heart attack was work connected, commenting that the difference between the Grimes case and this case (Kelly) was in the medical testimony.

This record fails to sustain the burden of proof that the death of Roy Hutchinson was work connected.

The judgment is affirmed.

All concur.


text:
    Barney BENNETT, Appellant, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellee.
    Court of Appeals of Kentucky.
    June 30, 1967.

      J. Howard Holbert, Elizabethtown, for appellant.
    Robert Matthews, Atty. Gen., H. C. Smith, Frankfort, Dept, of Highways, Harold K. Huddleston, Tildón McMasters, Eliz-abethtown, for appellee.
   PALMORE, Judge.

Barney Bennett appeals from a judgment awarding him $37,250 for a portion of his property taken by the Highway Department. We reverse upon the ground of error in excluding evidence of comparable sales.

The appellant’s property consisted of 28 acres on U. S. Highway 31W in Hardin County. He had on it a 4-bedroom brick veneer residence, nine tourist cabins, a brick apartment building, and other buildings and improvements. Slightly over two acres were taken, and it was necessary to destroy the residence and one of the cabins. In support of their valuation figures Bennett and his witness Hays attempted to show the prices at which two other motel properties in Hardin County had sold, and to compare them with the Bennett property. Bennett had qualified sufficiently to testify as an expert, though not a professional, and Hays was a licensed real estate dealer. Each of them expressed in substance the opinion that the property about which he proposed to testify was sufficiently similar to the Bennett property to provide, with appropriate adjustment and allowance for the differences, a basis for comparison.

The property concerning which Bennett proposed to testify (and did testify by way of avowal), the Southern Trails Motel, was a 17-unit motel with 2-room living quarters on four acres of land located adjacent to U. S. 31W on the other side of Elizabeth-town. It sold for $165,000, whereas Bennett’s estimate of the value of his own property before the taking was $147,797. He had not inspected the interior of the Southern Trails Motel and did not know whether it had been sold as a “going concern.” He figured furnishings at $1,000 per unit.

The rejected testimony offered by Mr. Hays concerned both the Southern Trails Motel and the Shady Grove Motel, the latter having included a 15-unit motel, 7-room frame residence, and a restaurant on 11 acres of land also fronting on U. S. 31W south of Elizabethtown. Shady Grove sold for $75,000, as against a $121,243 valuation placed by Mr. Hays on the Bennett property. The sale included the motel furnishings and restaurant equipment.

It was said in Stewart v. Commonwealth for Use and Benefit of Dept, of Highways, Ky., 337 S.W.2d 880, 884 (1960), and has been reiterated in_a number of later opinions, that if properties are reasonably similar “and a qualified expert states his opinion that they are sufficiently comparable for appraisal purposes, it is better to leave the dissimilarities to examination and cross-examination than to exclude the testimony altogether.” Appellee seizes on the term “qualified expert” as meaning “an expert appraiser,” to the exclusion of Mr. Bennett. The argument is that Mr. Bennett was qualified to give his opinion of the value of his own property but not to compare it with other property. We do not agree with that viewpoint. The term “qualified expert” as it has been used by us in this context means one who is qualified to give an opinion. Since Commonwealth, Dept, of Highways v. Fister, Ky., 373 S.W.2d 720 (1963), the owner of property must qualify the same as any other expert witness. Once he does, there is no reason why he cannot cite sales of comparable property located within the range of his expert knowledge.

A more serious question is presented by the contention that not only did the Southern Trails and Shady Grove properties have substantial physical dissimilarities from the Bennett property, but also the sales included more than real estate alone. Nevertheless, we have consistently expressed the attitude that within the bounds of reason the expert witness must be allowed great latitude in determining the matter of comparability, that dissimilarities go more to the weight than to the competence of such testimony, Cf. Commonwealth, Dept, of Highways v. Oakland United Baptist Church, Ky., 372 S.W.2d 412 (1963). If the rule were otherwise, the Commonwealth’s own witnesses in this very case could not have cited a comparable sale, since not a single one used by them involved motel property.

Both Mr. Bennett and Mr. Hays attempted to account and allow for the differences between the properties under comparison. Whether the price at which a particular motel or tourist court sold included good will or other assets for which the witness has not made or cannot make due allowance is nothing more than an element of dissimilarity to be weighed by the jury. In the final analysis, it is far better for the jurors than it is for either the trial court or this court to make the ultimate determination. We are of the opinion that the testimony in question should have been admitted and that it was prejudicial error to exclude it.

The judgment is reversed and the cause remanded with directions for a new trial.

All concur.


author: NORVELL, Justice.

text:
    TEXAS DEPARTMENT OF PUBLIC SAFETY, Petitioner, v. John Smith CASSELMAN, Jr. and Odie Lavoy Morris, Respondents.
    No. B-128.
    Supreme Court of Texas.
    June 28, 1967.
    Willie B. DuBose, County Atty., Midland, for petitioner.
    Stubbeman, McRae, Sealy & Laughlin, Rush Moody, Jr., Midland, for respondents.
   NORVELL, Justice.

These are driver’s license suspension cases. John Smith Casselman, Jr. and Odie Lavoy Morris brought separate suits against the Texas Department of Public Safety praying that the affirmative findings of a Justice of the Peace that both of them were habitual violators of the traffic laws of the State of Texas be set aside and that the orders of the Texas Department of Public Safety suspending their operator’s licenses be held for naught. In both cases (No. 5820, Casselman, and No. 5838, Morris), the plaintiffs and the Department filed motions for summary judgment. See, Article 6687b, § 22(b) (4), and Article 6687b, and Texas Department of Public Safety v. Richardson, 384 S.W.2d 128 (Tex.Sup.1964), as to procedure. The Department relied upon abstracts of judgments duly certified in accordance with the provisions of Article 6701d, § 152. Cas-selman and Morris relied upon affidavits that they had not personally appeared in court when judgments of conviction were rendered against them. The County Court of Midland County rendered summary judgment for both Casselman and Morris. The Department appealed both cases and the Court of Civil Appeals affirmed. 410 S.W.2d 523.

The judgments of the Court of Civil Appeals and the County Court of Midland County are reversed and judgment here rendered in Cause No. 5820 (Cassel-man) and in Cause No. 5838 (Morris), granting the motions for summary judgment filed in said causes by the Department of Public Safety and decreeing that Cassel-man and Morris take nothing against said department. The validity of the orders suspending Casselman’s Texas Operator’s License No. 0404723 for four months and suspending Morris’ Texas Operator’s License No. 4010088 for two months is sustained.

In Texas Department of Public Safety v. Richardson, 384 S.W.2d 128 (Tex.Sup. 1964), a driver’s license case, we discussed both Article 580, Vernon’s Ann.Code of Criminal Procedure, and Padillo v. State, 159 Tex.Cr.R. 435, 264 S.W.2d 715 (1954), and said:

“[I]t should be made abundantly clear that in this case we are not concerned with criminal penalties but rather with an administrative and regulative power vested in the Texas Department of Public Safety which power has for its purpose the protection of the lives and property of those using the highways. A driver’s license is not suspended for the purpose of visiting additional punishment upon an offender but in order to protect the public against incompetent and careless drivers. * * * ”

Cases in which criminal punishments or enhancements of criminal punishment are sought to be avoided by attacks in courts having criminal jurisdiction are not apposite here. This is not a criminal case but one to determine whether a party’s privilege to drive a motor vehicle over the highways of Texas should be suspended in the interest of public safety. It may be that if a jail sentence were assessed because of the violation of a traffic safety rule, and a defendant could show upon the trial that he neither appeared in person nor by attorney, he could secure his release by writ of habe-as corpus issued by a court of proper jurisdiction, but such circumstance does not bear upon the issue involved in a driver’s license suspension case. Both petitioners cite an opinion by the Attorney General dated November 23, 1963 which is of no aid to them as it relates primarily to direct attacks by appeal and does not purport to discuss the statute relating to the suspension of a driver’s license. The judgments of conviction involved in this proceeding have not been attacked by motion for new trial, by appeal, bill of review, habeas corpus or other proceeding in a court having criminal jurisdiction.

In habeas corpus cases, courts have quite generally referred to the attack as being collateral in nature and if successful, the judgment is said to be “void”. This nomenclature has given rise to some misunderstanding. It has been said that a “void” judgment is “null within itself” and may be simply ignored. In Murchison v. White, 54 Tex. 78 (1880), it was said:

“It is believed that a careful analysis of the cases on this subject will show that, in a collateral proceeding, the only contingency in which the judgment of a domestic court of general jurisdiction, which has assumed to act in a case over which it might by law take jurisdiction of the subject matter and the person, can be questioned, is when the record shows affirmatively that its jurisdiction did not attach in the particular case. * * * ”

The inquiry upon application for writ of habeas corpus, however, extends beyond the questions of jurisdiction of the subject matter and of the person of the defendant. For a judgment to withstand the attack, the court rendering the judgment must have had authority to render the particular judgment which was rendered by it. In re Duncan, 42 Tex.Cr.R. 661, 62 S.W. 758 (1901), 27 Tex.Jur.2d 675, Habeas Corpus, § 12. When the question is properly raised, an examination of the evidence is ■conducted to determine if there is any evidence to support an order of incarceration or whether there has been a violation of constitutional rights. Ex parte Cardwell, 416 S.W.2d 382 (Tex.Sup.l 967) ; Ex parte Helms, 152 Tex. 480, 259 S.W.2d 184 (1953); Ex parte White, 154 Tex. 126, 274 S.W.2d 542 (1955). In a note relating to Ex parte Betherum, 153 Tex. 563, 272 S.W. 2d 85 (1954), it is said in Lowe & Archer, Injunctions and Other Extraordinary Proceeding, p. 206, Habeas Corpus, § 212, that:

“The inquiry which the courts make in determining whether or not an order committing a person for contempt is void, in habeas corpus proceedings, is much broader than in other proceedings where collateral attacks are made on judgments and orders of courts. The court will inquire into the evidence presented at the hearing of the contempt proceeding to ascertain whether or not there is any evidence to support the order, and if there is none, the order will be stricken down and the relator discharged. * * *”

Although the record supporting a judgment may carry the seeds of infirmity that prove fatal to the judgment when exposed upon a direct attack or in a habeas corpus proceeding, it cannot be said that any and all persons may ignore the judgment before it is pronounced invalid or void by proper authority. In this case, the County Judge was not considering a direct attack or conducting a habeas corpus hearing and was no more authorized to ignore the judgments of convictions than would a prison warden be justified in discharging a prisoner before the judgment convicting such prisoner had been declared invalid by a court of competent jurisdiction. There are proper methods and competent tribunals to accomplish the destruction of judgments, but a collateral attack in a proceeding such as this is not one of them.

Apparently the petitioners here did not take the trouble to contest the charges made against them in the criminal courts but contented themselves with paying comparatively small fines and allowing judgments of conviction to be entered against them. Then, based upon the record thus made or which they allowed to stand, they now seek to make the convenience afforded them a ground for attacking the judgments of convictions rendered against them. They have attempted to do what Richardson and Miller sought to accomplish in Texas Department of Public Safety v. Richardson, supra, and Texas Department of Public Safety v. Miller, 386 S.W.2d 760 (Tex.Sup. 1964), namely, show by affidavits that in the proceedings wherein they were convicted of moving traffic violations, they did not appear in person or by attorney. We need not set out the procedure whereby the suspension of automobile driver’s licenses is accomplished. That has been heretofore done in Richardson and Miller. Judging from the briefs, however, we may with some profit discuss a matter of evidence which is presented by the use of abstracts of judgment prepared in accordance with Article 6701d, § 152. This section provides :

“(a) Every magistrate or judge of a court not of record and every clerk of a court of record shall keep a full record of every case in which a person is charged with any violation of this Act or of any other law regulating the operation of vehicles on highways.
“(b) Within ten (10) days after conviction of forfeiture of bail of a person upon a charge of violating any provision of this Act or other law regulating the operation of vehicles on highways, every said magistrate of the court or clerk of the court of record in which such conviction was had or bail was forfeited shall prepare and immediately forward to the department an abstract of the record of said court covering the case in which said person was so convicted or forfeited bail, which abstract must be certified by the person so required to prepare the same to be true and correct.
“(c) Said abstract must be made upon a form furnished by the Department and shall include the name and address of the party charged, the number, if any, of his operator’s, commercial operator’s, or chauffeur’s license, the registration number of the vehicle involved, the nature of the offense, the date of hearing, the plea, the judgment, or whether bail forfeited and the amount of the fine or forfeiture as the case may be.
“(d) Every court of record shall also forward a like report to the department upon the conviction of any person of negligent homicide or any felony in the commission of which a vehicle was used.
“(e) The failure, refusal, or neglect of any such judicial officer to comply with any of the requirements of this Section shall constitute misconduct in office and shall be grounds for removal therefrom.
“(f) The department shall keep all abstracts received hereunder at its main office.”

The statute makes it mandatory for a magistrate or judge of a court not of record and every clerk of a court of record to keep a full record of all cases in which a person is charged with a violation of the Uniform Act Regulating Traffic on Highways. It is further made the duty of such magistrate, judge or clerk to prepare and forward to the Department of Public Safety upon a prescribed form an abstract of each judgment of conviction or forfeiture of bail, and the failure to comply with the requirements of said section is made a ground for removal from office.

The abstracts of judgments provided for by Article 6701d, § 152, are admissible in evidence under the provisions of Article 3731a, Vernon’s Ann.Tex.Stats., as they are certificates or reports made by an officer of this state or a governmental subdivision thereof in the performance of the functions of his office. See, Texas Department of Public Safety v. Richardson, supra, and authorities therein cited. Such abstracts of judgments, which are quite generally referred to as notices of conviction, purport to be statements of information disclosed by the record which the judge or magistrate is required to keep. They constitute prima facie evidence of the contents of a judgment. However, as we stated in Texas Department of Public Safety v. Miller, Tex., 386 S.W.2d 760, 1. c. 764:

“If the notice of a conviction be inaccurate it may be corrected by the use of properly authenticated copies of the docket of the justice of the peace or the corporation judge as was done in Department of Public Safety v. Guleke, Tex. Civ.App., 366 S.W.2d 662, no wr. hist. (1963). In fact, the notices or abstracts may be corrected by either party but until corrective measures are taken, such notices or abstracts are to be accepted as evidence of ‘the matters stated herein.’ ”

In Crowe v. Texas Department of Public Safety, 406 S.W.2d 201 (Tex.Sup.1966), we were confronted with an affidavit or sworn certificate executed by the magistrate in whose court Crowe had been purportedly convicted which stated that there was no record in his court showing that Crowe had been convicted of a moving traffic violation. Such certificate was admissible in evidence under the provisions of Article 3731a, § S, relating to “Proof of Lack of Record,” viz.:

“A written statement signed by an officer having the custody of an official record, or by his deputy, that after diligent search no record or entry of a specified tenor is found to exist in the records of his office, accompanied by a certificate as above provided, is admissible as evidence that the records of his office contain no such record or entry.”

The situation disclosed by Crowe is unusual. A conflict of certificates was involved. The magistrate certified to the Department of Public Safety that according to the records of his court, Crowe had been convicted of a number of moving traffic violations. Then upon the county court hearing relating to the suspension of Crowe’s license, the same magistrate certified that there were no records in his court showing that Crowe had been convicted of a moving traffic violation. A statement purportedly taken from a non-existent record lacks probative force. This was made clear by our statement in Crowe that:

“[Tjhese affidavits by the Judge show the absence of a record of any judgments as is required by Article 6701d, Section 152, V.A.C.S., and contradict the notices of conviction upon which the license suspensions by the Department were based; the presumption that such notices reflect judgments of a court is therefore destroyed. Cf. Texas Department of Public Safety v. Miller, 386 S.W.2d 760 (Tex. Sup.1964).”

Our conclusion in Crowe was that since the prima facie presumption of conviction ordinarily established by the abstracts of judgment was destroyed; and such abstracts constituted the only evidence in the record relied upon to show that Crowe had been convicted, there was no competent evidence of such convictions, and hence the suspension order could not stand.

There is no conflict between Richardson and Crowe. The Crowe case turns upon the lack of a record of conviction as an evidentiary matter. The present cases are controlled by Richardson and judgment is rendered as heretofore indicated.

Reversed and rendered.

      I. Article references are to Vernon’s Ann.Tex.Stats.


author: SMITH, Justice.

text:
    Roy D. ATKINS, Petitioner, v. Robert E. CROSLAND, Respondent.
    No. A-11733.
    Supreme Court of Texas.
    July 5, 1967.

      Rawlings, Sayers, Scurlock & Eidson, Lloyd Scurlock, Fort Worth, for petitioner.
    Cantey, Hanger, Gooch, Cravens & Scarborough, Robert A. Watson, Fort Worth, for respondent.
   SMITH, Justice.

On September 30, 1963, Petitioner, Roy D. Atkins, brought this suit against Respondent, Robert E. Crosland, to recover damages in the sum of $12,297.32. The parties will be designated as in the trial court. The question for decision is: Did the trial court err in granting defendant’s motion for summary judgment based on the ground that plaintiff’s cause of action was filed more than two years after December 31, 1960? The Court of Civil Appeals has affirmed the judgment of the trial court so holding. 406 S.W.2d 263. We reverse the judgments of the trial court and the Court of Civil Appeals and remand the cause for a trial on its merits.

In 1958 plaintiff was engaged in the business of owning and operating service stations as a sole proprietor. Near the end of 1958 the defendant, an independant accountant, was employed by the plaintiff for the primary purpose of preparing plaintiff’s income tax returns. The defendant relied upon the cash receipts and disbursements method of accounting rather than an accrual method. The method relied upon failed to show plaintiff’s inventories. Plaintiff takes the position that this method was improper.

It is undisputed that by the use of the cash method of accounting, the plaintiff’s income tax liability for 1960 would have been $20,627.69. Had the accrual method been successfully employed, on the other hand, the tax liability for that same year would have been only $8,340.37. In 1960 the defendant did in fact utilize the accrual method but failed to secure the consent of the Commissioner of Internal Revenue as required by Internal Revenue Code, 1954, § 446(e). The result of the failure to obtain the required consent was that the Commissioner required the plaintiff to retain the cash method for the year of 1960 thereby depriving him of a tax savings of $12,297.32. On October 20, 1961, less than two years from the institution of this suit, the Commissioner assessed the plaintiff with the tax deficiency of $12,297.32.

The plaintiff alleged that the defendant’s choice of accounting methods increased plaintiff’s liability in the amount sued for; that the defendant in relying upon the cash receipts and disbursements method of accounting rather than the accrual method was negligent in three particulars and that such negligence was a proximate cause of plaintiff’s tax loss. The specific allegations of acts of negligence and proximate cause follow:

“In the course of his employment as plaintiff’s independent accountant, defendant was guilty of the following acts of negligence which proximately caused plaintiff’s tax loss mentioned above:

(a) In originally adopting the cash receipts and disbursements methods of tax accounting for plaintiff’s business;

(b) In failing to obtain the Commissioner of Internal Revenue’s permission to change from the cash method to an accrual method of accounting for the 1960 tax year; and

(c)In failing to warn plaintiff of his tax problem in time for plaintiff to pay off his accounts payable prior to the end of the 1960 tax year.”

It is undisputed that the acts of the defendant alleged under subparagraphs (a), (b) and (c), supra, occurred prior to and by December 31, 1960. Defendant’s motion for summary judgment is supported by an affidavit that all alleged acts of negligence occurred more than two years prior to the commencement of the suit.

Plaintiff’s unsworn answer to defendant’s motion for summary judgment prays that the motion be overruled for the following reasons:

“Plaintiff would show that this is a suit for indemnity; hence, the statute of limitations did not begin running until plaintiff paid the excess taxes caused by defendant’s negligence. There is no evidence before the court to support a conclusion that payment occurred more than two (2) years before filing suit.

" * * *

“In the alternative, plaintiff says that the statute of limitations did not begin running until the excess taxes caused by defendant’s negligence were assessed against plaintiff by the Commissioner of Internal Revenue. There is no evidence before the Court to support a conclusion that assessment occurred more than two (2) years before filing of suit.”

We must first determine when the plaintiff’s cause of action accrued, for it is at that time that the two year statute of limitations began to run. Article 5526, Vernon’s Annotated Civil Statutes. The plaintiff argues that the statute did not begin to run until the tax deficiency was assessed by the Internal Revenue Service, i.e., only at that time was the tort complained of completed. We agree with this contention.

The general rule is that a cause of action sounding in tort accrues, in the absence of a statute to the contrary or fraudulent concealment, when the tort is committed. This rule obtains notwithstanding the fact that the damages, or their extent, are not ascertainable until a later date. Quinn v. Press, 135 Tex. 60, 140 S.W. 2d 4387128 A.L.R. 757 (1940); Blondeau v. Sommer, 139 S.W.2d 223 (Tex.Civ.App. 1940, writ ref’d); 54 C.J.S. Limitations of Actions § 168, p. 123; 34 Am.Jur. Limitations of Actions, § 160, pp. 126-127; 37 Tex.Jur.2d Limitations of Actions § 62, pp. 184-185. A legal injury must be sustained, of course, before a cause of action arises. It is said in 34 Am.Jur. Limitations of Actions § 160, p. 126:

“As regards the running of the statute of limitations applicable to torts, a cause of action accrues only when the force wrongfully put in motion produces the injury, the invasion of personal or property rights accruing at that time.” (citing the Quinn Case, supra.)

And see Houston-American Finance Corp. v. Travis, 343 S.W.2d 323 (Tex.Civ.App. 1960, writ ref’d n.r.e.). A helpful and often quoted test for determining when the cause of action accrues is found in 54 C.J.S. Limitations of Actions § 168, pp. 122-123:

“The test to determine when the statute of limitations begins to run against an action sounding in tort is whether the act causing the damage does or does not of itself constitute a legal injury, that is, an injury giving rise to a cause of action because it is an invasion of some right of plaintiff. If the act is of itself not unlawful in this sense, and plaintiff sues to recover damages subsequently accruing from, and consequent on, the act, the cause of action accrues, and the statute begins to run, when, and only when, the damages are sustained; and this is true although at the time the act is done it is apparent that injury will inevitably result.
“If, however, the act of which the injury is the natural sequence is of itself a legal injury to plaintiff, a completed wrong, the cause of action accrues and the statute begins to run from the time the act is committed, even where little, if any, actual damage occurs immediately on commission of the tort * * See
Tennessee Gas Transmission Co. v. Fromme, 153 Tex. 352, 269 S.W.2d 336 ' (1954).

Turning from general principles to the facts involved in the instant case, we have concluded that the plaintiff’s cause of action did not arise until the tax deficiency was assessed by the Commissioner of Internal Revenue. Prior to assessment the plaintiff had not been injured. That is, assessment was the factor essential to consummate the wrong — only then was the tort complained of completed. If a deficiency had never been assessed, the plaintiff would not have been harmed and therefore would have had no cause of action. Thus, the use of the cash method, as opposed to the accrual method, was not in itself the type of unlawful act which, upon its commission, would set the statute in motion. In short, in the absence of assessment, injury would not have inevitably resulted.

A case closely analogous to the case at bar is Linkenhoger v. American Fidelity & Casualty Co., 152 Tex. 534, 260 S.W.2d 884 (1953). In that case the plaintiff-insured brought suit against the defendant-insurer under the Stowers Doctrine. The plaintiff alleged that in a prior personal injury suit filed against him the defendant, as insurer, defended that suit and in so doing negligently rejected a number of reasonable settlement offers which were within the limits of his policy. The judgment rendered against the plaintiff in that suit exceeded his policy limits in the amount of $6,758.08, which amount the plaintiff was forced to pay off. Following this, the plaintiff sued the insurance company for the $6,758.08 and an equal amount in exemplary damages. In answer to this suit, the insurance company pled the two year statute of limitations and contended the statute began to run from the date it last refused to settle the prior offers. The trial court rendered judgment for the plaintiff in the amount of $6,758.08, but the Court of Civil Appeals reversed and rendered the cause for the insurance company on. the ground that the plaintiff’s claim was barred by the statute of limitations which had begun to run from the date the insurer last refused to settle. On appeal, this Court held that since the plaintiff’s liability in the first suit could not be determined until a-final judgment was rendered, the statute of limitations began to run from that date, not when the insurer last refused to settle. In so holding the Court said:

“The petitioner, Linkenhoger, could not have maintained this present suit until such time as his liability and the extent thereof had been determined by a final judgment in the former case. Until then his rights had not been invaded by respondent’s failure to accept the terms of settlement offered and the tort was not complete.”

The defendant in the present case, however, contends that the rule announced in Carrell v. Denton, 138 Tex. 145, 157 S.W.2d 878 (1942) and Stewart v. Janes, 393 S.W. 2d 428 (Tex.Civ.App. 1965, writ ref’d), governs the result to be reached herein. In both Carrell and Stewart a physician was charged with negligently failing to remove a gauze paid from a patient’s body. While we regard these cases as being distinguishable, the distinction is academic since they have this day been overruled in Gaddis v. Smith, 417 S.W.2d 577 (Tex.Sup. 1967).

The defendant also relies on Crawford v. Davis, 148 S.W.2d 905 (Tex.Civ.App. 1941, no writ hist.). In that case suit was brought against an attorney for his negligent failure to properly institute suit on a promissory note before it became barred by the statute of limitations. We have examined that case and determined that it contains language which conflicts with the holding we have made in the present case. Therefore, the language in Crawford that is in conflict with our holding here is expressly disapproved.

In disposing of the present case as we do, we are not unmindful of the policy behind the statute of limitations, to-wit: to prevent the litigation of stale claims. Our holding here does not violate that policy since it is provided by statute that the Commissioner of Internal Revenue must assess a deficiency within three years from the date the tax return is filed. Internal Revenue Code, § 6501, 1954.

The judgments of the trial court and the Court of Civil Appeals are reversed, and the cause is remanded to the trial court for trial.

      . G. A. Stowers Furniture Co. v. American Indemnity Co., 15 S.W.2d 544 (Tex.Comm.App. 1929, Opinion approved).


author: POPE, Justice.

text:
    Clyde E. BARBER, Petitioner, v. INTERCOAST JOBBERS & BROKERS, Respondent.
    No. B-84.
    Supreme Court of Texas.
    June 14, 1967.
    Rehearing Denied July 19, 1967.

      Warren Burnett and Robert E. Hoblit and Robert D. Pue, Odessa, for petitioner.
    Shafer, Gilliland, Davis, Bunton & Mc-Collum, Perry Davis, Jr. and Ray Stoker, Jr., Odessa, for respondent.
   POPE, Justice.

This is a venue case which arises under § 9a, art. 1995, Vernon’s Ann. Civ. St. Plaintiff, Clyde E. Barber, filed this suit in Ector County against Intercoast Jobbers & Brokers for the death of his wife in a collision between defendant’s truck and the car his wife was driving. The trial court overruled Intercoast’s plea of privilege, but the court of civil appeals reversed the trial court’s judgment and ordered the cause transferred to Dawson County. 410 S.W.2d 249. Intercoast, by a motion to dismiss, urges that Barber has failed to show that the decision of the intermediate court conflicts with “a prior decision.” Barber urges that the intermediate court erred in failing to hold that he proved the accident occurred in Ector County by proof that the accident occurred four miles north of downtown Odessa and that Intercoast’s driver was in the scope of his employment. In our opinion this court has jurisdiction and we affirm the judgment of the trial court.

Our first problem is one of jurisdiction. Barber’s application for writ of error asserts that the decision of the court of civil appeals is in conflict with the decision in Buckaloo Trucking Co. v. Johnson, 409 S.W.2d 911 (Tex.Civ.App.1966, no writ). The intermediate court in the instant case held that the trial court could not judicially know that a point four miles north of downtown Odessa was in Ector County. In Buckaloo, the court held that it could judicially know that the western boundary of Nueces County was several miles west of Robstown and that Clarkwood was located between Corpus Christi and Robstown in Nueces County. Intercoast’s argument is that Buckaloo was not “a prior decision” as required by section 2, art. 1728. It is settled that “a prior decision” which can serve as a basis for jurisdiction in the Supreme Court because of conflicts, must be a decision that was rendered before and not subsequent to that of the case in which the petition for writ of error is filed. Westchester Fire Ins. Co. v. Redditt, 109 Tex. 211, 204 S.W. 106 (1913).

The decision in Buckaloo was rendered on December 15, 1966. Since there was no motion for rehearing, the judgment was final after December 30, 1966. The intermediate court rendered its decision in the instant case on December 14, 1966, but there was a motion for rehearing which was not overruled until January 4, 1967. Intercoast’s motion to dismiss urges that Buckaloo cannot be “a prior decision” since the court handed down its opinion one day after the court’s opinion in this case. Barber contends, however, that Buckaloo was “a prior decision” because it became final prior to January 4, the time that the decision in this case became final.

The meaning of the term “decision” depends upon the context in which it is used and the purposes served. See Palmer Pub. Co. v. Smith, 130 Tex. 346, 109 S.W.2d 158, 159 (1937); Kidd v. Mc-Cracken, 105 Tex. 383, 150 S.W. 885, 887 (1912). Section 2 of art. 1728 is a basis for jurisdiction by the Supreme Court, because it affords the opportunity for the court to settle the law by resolving conflicts between decisions. As long as a decision is subject to withdrawal or change, it cannot be known whether a conflict between decisions will actually exist. It was not, therefore, until the time expired for filing a motion for rehearing that Buckaloo became a final decision and as such afforded a basis for the assertion of its conflict with a later decision.

Our conclusion that the term “a prior decision” means a final decision is fortified by Rule 483, Texas Rules of Civil Procedure, which states the powers possessed by the Supreme Court in acting upon an application for writ of error. It provides in part:

“In cases of conflict named in subdivision 2 of Art. 1728 of the Revised Civil Statutes of Texas, as amended, the Supreme Court shall grant the application for writ of error, unless it be in agreement with the decision of the Court of Civil Appeals in the case wherein the application is filed, in which event said Supreme Court shall so state in its order, with such explanatory remarks as may be deemed appropriate. In cases where the decision of the Court of Civil Appeals is in conflict with a previous opinion of the Supreme Court, the Supreme Court may, in its discretion, without the necessity of granting the writ and hearing the case, reverse the same on the application for writ of error, making, at the same time, such further orders as may be appropriate.”

The quoted portion of the rule directly refers to § 2 of art. 1728 and twice uses the term “decision” in the sense of a final decision since an application for writ of error can be filed only in a case in which the decision has become final. We conclude, therefore, that a conflict with “a prior decision” means a decision that is final. This court has jurisdiction.

Our second problem is one of judicial notice with respect to the location and boundaries of counties. Barber in discharging his burden to prove that the accident occurred in Ector County introduced evidence that it happened at the intersection of 81st Street and Highway 385, four miles north of downtown Odessa. The trial court then judicially knew that the point of the collision was in Ector County. In our opinion that fact is one which is “certain and indisputable,” Harper v. Killion, 162 Tex. 481, 348 S.W.2d 521 (1961) and may be judicially noticed with “verifiable certainty.” 1 McCormick & Ray, Texas Law of Evidence, § 211.

This court held as early as 1866 that a court may judicially know that the state is divided into counties, the location of the counties, their contiguity with each other and their boundaries, dimensions and extent when defined by public laws. Wright v. Hawkins, 28 Tex. 452, 472 (1866). In Southwestern Investment Company v. Shipley, 400 S.W.2d 304, 307 (Tex.Sup.1966) this court said, “we judicially know that Amarillo is not situated wholly within Potter County,” and in Harper v. Killion, supra, that a district court sitting in Cherokee County could “judicially notice the certain and indisputable fact of common knowledge that the entire city of Jacksonville is located in such county, * * Note, 35 Tex.L. Rev. 731. In those instances, not only the boundaries of counties but the general boundaries of municipalities within counties were judicially noticed. Facts about well known and easily ascertainable geographical facts concerning counties are frequently judicially noticed. It was judicially known that Matagorda County is bounded by the Gulf of Mexico, Giddings v. Day, 84 Tex. 605, 19 S.W. 682 (1892) '; Bowie County is bounded by Arkansas, Wade v. Crump, 173 S.W. 538 (Tex.Civ.App.1915, no writ) ; the Colorado River is the south boundary of Coleman County, Giddings v. Day, supra; and the Angelina River separates Nacogdoches and Angelina Counties, Fidelity & Casualty Co. of New York v. Branton, 70 S.W.2d 780 (Tex.Civ.App.1934, writ dism.).

In Buckaloo, supra, the court judicially knew as a certain and indisputable fact that the western boundary of Nueces County is several miles west of Robstown, and Clark-wood is between Corpus Christi and Robstown. Brown Express Co. v. Dieckman, 344 S.W.2d 501, 505 (Tex.Civ.App.1961, no writ) held that the court may judicially know that a collision point located one-eighth of a mile south of the city limits of Rockdale was in Milam County. Smith v. Conner, 211 S.W.2d 630 (Tex.Civ.App.1948, no writ) held that proof that an accident occurred “about two miles east of the town of Katy, Texas” established the location of the accident in Harris County, and Martin v. Turnbow, 96 S.W.2d 730 (Tex.Civ.App.1936, no writ) held that a point six miles from McKinney was in Collin County. The proximity of Harlingen and Mercedes was judicially known in Elli's v. Heidrick, 154 S.W .2d 293 (Tex.Civ.App.1941, writ ref.). In our opinion these cases state the present status of judicial knowledge concerning geographical facts about the location of places in counties.

The court of civil appeals relied upon the case of Miller v. Burke, 401 S.W.2d 852 (Tex.Civ.App.1966, no writ) for its holding that plaintiff failed to prove the county in which the accident occurred. The case is not in point. Unlike the instant case and those cited above, the plaintiff failed to prove the location of the accident with reference either to a county or any other place. The plaintiff alleged that the accident occurred in Houston, Harris County, but introduced no evidence concerning the place of the accident. In the present case Barber proved the location of the accident with reference to Odessa. This court judicially knows that Odessa is located in and is the county seat of Ector County. Burtis v. Butler Bros., 148 Tex. 543, 226 S.W.2d 825 (1950); Turner v. Tucker, 113 Tex. 434, 258 S.W. 149 (1924); Carson v. Dalton, 59 Tex. 500 (1883).

Our final problem is Intercoast’s insistence that the decision of the court of civil appeals was a correct one because all of the evidence showed that the driver of its truck was outside the scope of his employment at the time and place of the accident. The court of civil appeals discussed the point but reserved judgment. According to the evidence, the driver lived in Odessa but worked out of Lamesa. The day before the fatal accident he went to Lamesa and spent the night. The next day, about noon, he drove the truck from his employer’s business destined to pick up a load of grain at Three Leagues which he was to deliver to California. He completed loading the truck at three o’clock in the afternoon and then drove west until he intersected the Lamesa-Mid-land Highway. He drove to Midland and on toward Odessa. Instead of proceeding along the main highway, at a point several miles north of Odessa he turned west on a loop to avoid the city traffic and to go directly to his home where he planned to spend the night. The accident occurred about five o’clock in the afternoon.

The evidence further showed that the driver’s employer knew he would spend the night at home and leave early the following morning for California. One of the owners of Intercoast testified that the driver had been away from home and “had to go by the house and get the clothes. I told him to go by his home and get the clothes and spend the night and to leave tomorrow morning.” This was a customary practice. The driver was on a direct route to his home where he was authorized and needed to go, at least to pick up clothes he would need on the trip from Texas to California. There was evidence that he was in the course of his employment. United East & West Oil Co. v. Dyer, 139 Tex. 318, 162 S.W.2d 680, 683 (1942); Traders & General Ins. Co. v. Ihlenburg, 243 S.W.2d 250 (Tex.Civ.App. 1951, writ ref.); Southern Surety Co. v. Shook, 44 S.W.2d 425 (Tex.Civ.App.1931, writ ref.); Smith v. Conner, 211 S.W.2d 630 (Tex.Civ.App.1948, no writ).

The judgment of the court of civil appeals is reversed and that of the trial court is affirmed.

      I. “The Supreme Court shall have appellate jurisdiction co-extensive with the limits of the State, extending to all questions of law arising in the following cases when same have been brought to the Courts of Civil Appeals from appealable judgment Of trial courts:
      * * * * *
      “2. Those in which one of the Courts of Civil Appeals holds differently from a prior decision of another Court of Civil Appeals, or of the Supreme Court upon any question of law material to a decision of the case.”


author: MORRISON, Judge. ONION, Judge.

text:
    Connie Ray CARAWAY, Appellant, v. The STATE of Texas, Appellee.
    No. 40337.
    Court of Criminal Appeals of Texas.
    June 14, 1967.
    Rehearing Denied July 26, 1967.

      W. John Allison, Jr., Dallas (on appeal only), for appellant.
    Henry Wade, Dist. Atty., Charles L. Caperton, Don Koons and Kerry P. Fitz-Gerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is robbery with firearms; the punishment, 40 years in the Department of Corrections.

On September 14, 1966, appellant gave notice of appeal, filed a pauper’s oath and such - notice was entered on the docket of the Court of conviction.

On January 11, 1967, appellant’s court appointed counsel moved the trial court to permit the entry of notice of appeal. Counsel and trial court apparently overlooked Sections (d) and (e) of Article 44.08, Vernon’s Ann.C.C.P. which provide that the trial court’s docket entry of notice of appeal is sufficient compliance with such article, because the trial court overruled the motion. However, on May 5, 1967, the trial court extended the time for filing a brief on appeal, and one was filed within such time. The entire record is before this Court, and we will entertain the appeal under the notice given on September 14, 1966.

The sole ground of error presented in the brief is that appellant was denied his right to appeal.

We have examined this record and find no reversible error. If appellant’s court appointed counsel seeks to raise other grounds of error, he may set them forth in his motion for rehearing.

The judgment is affirmed.

OPINION ON MOTION FOR REHEARING

ONION, Judge.

Appellant in his motion for rehearing, as pointed out in our original opinion that might be done, seeks to raise two other grounds of error which we shall, under the circumstances, consider. Article 40.09, Section 13, Vernon’s Ann.C.C.P.

Appellant now contends that the trial court erred by its refusal to allow the appellant personally to make an opening statement in violation of Article 36.01, Section 5, V.A.C.C.P.

Article 36.01, Section 5, supra, provides as follows:

“The nature of the defenses relied upon and the facts expected to he proved in their support shall he stated hy defendant’s counsel.” (Emphasis Supplied)

At the end of the first day of trial, the State rested its case in chief. After the appellant’s motion for an instructed verdict was overruled, on the second day of the trial the record shows the following:

“THE DEFENDANT: Your Honor, I’d like to talk to the jury for a minute, if I may.
THE COURT: Well, when we get through with the testimony, why, you can make a talk to the jury.”

While the request was made in due order of procedure, no further effort was made to bring to the trial court’s attention appellant’s desire to state the nature of his defenses and facts he expected to prove in support thereof, if in fact that was his desire. It is obvious that trial court felt the request related to jury argument. Further, no exception or obj ection was taken to the court’s ruling. As noted above, this ground of error is raised for the first time on this motion for re-hearing.

The right of a defendant in a criminal case to an opening statement by his counsel is a valuable right, and the denial of a timely request by the defendant to make an opening statement constitutes reversible error. Crew v. State, Tex.Cr.App., 387 S. W.2d 898; Price v. State, 167 Tex.Cr.R. 105, 318 S.W.2d 648; Kennedy v. State, 150 Tex.Cr.R. 215, 200 S.W.2d 400; 56 Tex.Jur.2d 412.

However, a defendant is not entitled to personally make such opening statement in his own behalf in the absence of an explanation of counsel’s inability to speak for him. Foster v. State, 148 Tex.Cr.R. 372, 187 S.W.2d 575; Cameron v. State, Tex.Cr.App., 217 S.W.2d 23. The record does not reveal that any reason was assigned at the time of the trial why the defense counsel could not have made the statement.

Appellant now urges, on appeal, that his court appointed trial counsel was not sufficiently prepared on the facts of the case to make an intelligent opening statement, but there is no showing that any such explanation was made to the trial court at the time the appellant personally requested “to talk to the jury a minute”, nor can we conclude that record supports such claim. The ground of error thus presented is overruled.

Appellant next contends that he was denied the effective assistance of trial counsel.

The trial court appointed trial counsel to represent this indigent appellant on March 30, 1966. According to the docket sheet, the case seems to have been passed and re-set on April 4th and May 3rd, 1966. The trial commenced on May 16, 1966. No motion for continuance was made and appellant announced ready for trial. Just prior to testifying as the first witness in his own behalf, on the second day of trial, appellant personally addressed the court in the absence of the jury, complaining that he was being inadequately represented and asking that another attorney be appointed. In his unsworn statement to the court, he claimed his trial counsel had only spent “about fifteen minutes” discussing the case with him in jail on Friday before the trial began on the following Monday; that counsel had suggested he plead guilty; that he had not asked the names of any witnesses nor subpoenaed the same; that he failed to object to some of the proffered testimony. The request for new counsel was denied.

The trial court pointed out that the proffered testimony was objected to, but was admitted because it was material and observed that appointed counsel was doing “a very good job of it up to now”, (counsel had just successfully elicited from an eye-witness to the events just preceding the robbery that he might be mistaken in his identification of appellant) When it appeared that appellant’s main concern was to obtain the appearance of two police officers who had investigated the alleged robbery and their written report thereon, the court and counsel conferred, and such witnesses were called and subsequently testified as defense witnesses. The only other witness mentioned by the appellant was the foreman of the grand jury, but there is no showing as to what he could possibly have testified.

In Rodriguez v. State, 170 Tex.Cr. R. 295, 340 S.W.2d 61, we pointed out that it is the duty of the court in appointing counsel to select one who has sufficient ability and experience to fairly represent the defendant and protect his legal rights.

Whether an accused has been denied the benefit of effective assistance of counsel guaranteed to him by the 6th and 14th Amendments, U. S. Constitution, depends upon “the particular circumstances” appearing in the record. Avery v. State of Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377; Underwood v. Bomar, 335 F.2d 783, 786, n. 2 (6th Cir.).

This Court has on a number of occasions carefully examined the record in order to properly appraise the contention that an appellant had ineffective assistance of counsel. Drennon v. State, Tex.Cr.App., 395 S.W.2d 636; Jackson v. State, Tex.Cr. App., 395 S.W.2d 650, 651; Jones v. State, Tex.Cr.App., 389 S.W.2d 294; Dyches v. State, Tex.Cr.App., 382 S.W.2d 928; Williams v. State, 169 Tex.Cr.R. 496, 335 S.W. 2d 224; Rodriguez v. State, supra.

The test to be applied under such circumstances has been well stated by the United States Court of Appeals, Fifth Circuit, in MacKenna v. Ellis, 280 F.2d 592:

“We interpret the right to counsel as the right to effective counsel. We interpret counsel to mean not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.”

See also Fletcher v. State, Tex.Cr.App., 396 S.W.2d 393.

While the education, background, or experience of the court appointed trial counsel is not reflected, a review of the record in the case at bar convinces us that appellant’s counsel met the above quoted standard.

Appellant’s court appointed appellate counsel directs our attention to several pages of the record, particularly appellant’s unsworn statements to the court described above and concludes that trial counsel was unprepared and that many objections should have been made and evidence which should not have been admitted was introduced. These charges stand in mere conclusory terms. In Williams v. Beto, 5 Cir., 354 F.2d 698, in discussing such a contention, the Court said:

“The practice of law is an art as well as a science. As no two men can be exactly alike in the practice of the profession, it is basically unreasonable to judge an attorney by what another would have done, or says he would have done, in the better light of hindsight.”

See Morgan v. State, Tex.Cr.App., 403 S.W. 2d 150.

Appellant cites Brooks v. State of Texas, 381 F.2d 619, (Fifth Cir. C.A., July 10, 1967), which was reversed for lack of effective counsel. In Brooks, the Court, with benefit of an evidentiary hearing in a federal district court and'the record from the trial court (Criminal District Court of Dallas County), concluded the record evidenced Brooks’ appointed counsel’s totally inadequate preparation of Brooks’ only possible defense—that of insanity. The Court observed that Brooks’ counsel had failed to interview the Doctor who had given Brooks a mental examination and who had expressed an opinion that there was a good deal of impairment in Brooks’ ability to form judgments; had failed to subpoena the Doctor who was out of town at the time of the trial; had made an unsuccessful oral, rather than a proper written motion, for continuance; that there had been only limited pre-trial conferences between counsel and client (established by Brooks’ sworn and uncontradicted testimony); that a thorough and timely interview with Brooks by counsel would have disclosed commitments to at least three different mental institutions and two attempts to commit suicide.

In the case at bar, the record before us does not evidence a totally inadequate preparation of appellant’s only defense — alibi. The record does not support appellant’s unsworn remarks to the trial court. Even if appellant’s statement as to limited consultation was true, there is no showing that a more thorough and timely interview would have disclosed other witnesses to his alibi.

Appellant, testifying in his own behalf, related that on the night of the alleged robbery, he was at home with his wife and seventeen month old child. No complaint is made that the wife was not subpoenaed or called as a witness. No showing or claim is made that the wife if called as a witness would have supported appellant’s version of the facts. No suggestion is now urged that there were other witnesses to substantiate appellant’s alibi not mentioned in appellant’s testimony who could have been uncovered by more frequent pre-trial conferences or additional investigation. The record does not reflect that evidence vital and helpful to appellant’s defense was withheld from the jury.

It is noted that when certain witnesses were demanded it appears that counsel was far more familiar with the names of such witnesses than appellant. It may well have been, that after investigation, counsel had serious reservation about calling the two investigating officers who were so intimately connected with the prosecution. Nevertheless, the two police witnesses, requested by appellant, were called by appellant’s counsel and examined as to their investigation and police report made.

The careful trial judge is to be commended for having taken steps to insure the appearance of two of the witnesses requested. While the accused cannot and must not be allowed to claim the lack of effective assistance of counsel at such times as to disrupt the orderly procedure of a criminal trial, (Lee v. United States, 98 U.S.App.D.C. 272, 235 F.2d 219; Finch v. State, Tex.Cr App., 399 S.W.2d 544) it would have been preferable if the trial court had, for the purpose of the record, made further inquiry into the accusations made. In the absence of any such action by the trial court, it would seem to be in the interest of both the prosecution and the court appointed counsel for either to have taken the initiative in having the record reflect whether there was any basis for such charges.

An accused has a constitutional right to the effective assistance of counsel and our entire judicial system should always jealously safeguard that precious right. At the same time, in view of the great frequency with which lack of assistance of counsel is being raised on appeals and in collateral attacks upon convictions, each case must be carefully scrutinized on its merits and in light of the record available, so as not to leave the impression with defense counsel that in seemingly hopeless cases, the best defense or delaying tactic is to do nothing at all.

We are unable to conclude that appellant was deprived of his constitutional rights as guaranteed by the 6th and 14th Amendments to the federal constitution.

The motion for rehearing is overruled.


author: WOODLEY, Presiding Judge.

text:
    Bobby Don McCALLUM et al., Appellants, v. The STATE of Texas, Appellee.
    No. 40428.
    Court of Criminal Appeals of Texas.
    July 19, 1967.
    James H. Martin, Dallas, for appellants.
    Leon B. Douglas,. State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

This is an appeal from an order overruling petition for bill of review filed by John T. Boyce, Surety on the appearance bond of' Bobby Don McCallum, forfeiture of which was affirmed by this court in McCallum et al. v. State of Texas, Tex.Cr. App., 411 S.W.2d 361.

The ground upon which the surety sought to have the trial court set aside the judgment entered against him after affirmance by this court is that at the time the judgment nisi was made final the principal was. in custody of the sheriff.

We find no merit in such contention.

Judgment nisi was entered when the principal failed to appear on August 3, 1966, and was made final on September 22, 1966. Appellant John T. Boyce filed super-sedeas bond on appeal from this judgment, with Bill McMahan and Marvin Shwiff as his sureties.

A similar supersedeas bond on this appeal with the same sureties was filed and approved.

The judgment is affirmed.

Appellant having superseded the judgment by supersedeas bond, judgment is rendered against his sureties thereon for the performance of the judgment of forfeiture. Rules of Civil Procedure 435.


author: DICE, Judge.

text:
    Ex parte Hilla B. DARDEN.
    No. 40567.
    Court of Criminal Appeals of Texas.
    July 12, 1967.

      Wardlow & Cochran, Fort Worth, for relator.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

This is a habeas corpus proceeding attacking the validity of a life sentence for burglary assessed petitioner in the Criminal District Court of Tarrant County in the year 1951, wherein two prior convictions were used to enhance the punishment.

From the record made at the hearing before the trial judge, which resulted in the granting of the writ returnable to this court, it appears that in one of the prior convictions for the offense of burglary, in the 86th Judicial Court of Kaufman County, on May 9, 1949, petitioner waived a jury and pleaded guilty before the court without being represented by counsel.

Art. 10a, V.A.C.C.P. (now Art. 1.13, Vernon’s Ann.C.C.P. of 1965), in effect at the time of the 1949 conviction in Kaufman County, provided that before a defendant who has no attorney can agree to waive a jury, the court must appoint an attorney to represent him.

Under recent opinions of the Supreme Court of the United States, applying Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, the 1949 conviction was void and could not be used to enhance the punishment. See: Greer v. Beto, 384 U.S. 269, 86 S.Ct. 1477, 16 L.Ed.2d 526, and cases there cited.

The provisions of Art. 62, Vernon’s Ann. P.C., were applicable, and the other prior conviction for burglary in 1947 authorized a punishment of twelve years.

The record reflects that the petitioner has served in excess of twelve years and is entitled to be released from further confinement under the life sentence affirmed by this court in Darden v. State, 156 Tex. Cr.R. 527, 244 S.W.2d 231.

It is so ordered.


text:
    Francisco RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 40516.
    Court of Criminal Appeals of Texas.
    July 12, 1967.

      Arturo R. Aguirre, El Paso, for appellant.
    Barton Boling, Dist. Atty., Robert D. Earp, Asst. Dist. Atty., El Paso, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is for burglary; the punishment, six years.

It was shown by the state’s testimony that on the night in question during an electrical blackout in the city of El Paso, the appellant and his co-indictee, Enrique Granados, were stopped by Officer Williams when he observed them jaywalking and staggering across a street from the B. F. Goodrich store. The two had come out of an alley which ran behind the store. At the time, appellant and Granados were carrying some articles, consisting of a perculator and transistor radios. Appellant was carrying the perculator and one radio. Some of the articles bore tags of the B. E. Goodrich Company. An immediate investigation revealed that the Goodrich store building had been burglarized.

Appellant did not testify but called as a witness his co-indictee, Granados, who had been convicted of the burglary in a separate trial and was serving a six-year sentence in the Department of Corrections.

Granados swore that it was he (Grana-dos) who committed the burglary and that he acted alone in the commission of the offense. He swore that he stashed the stolen articles in a trash can and that later he returned to the scene with appellant and gave him some of the articles to- carry away. On cross-examination, Granados admitted that after his arrest he gave a statement to the police in which he implicated appellant in the burglary by stating that appellant was waiting on the sidewalk for him when he (Granados) came out of the building.

The issue of appellant’s guilt was submitted to the jury upon a charge on the law of principals and circumstantial evidence.

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

He first complains of the court’s refusal to grant his motion for a mistrial when the state’s attorney, in his final argument to the jury, stated:

“ * * * Is it reasonable ? It’s possible, but is it reasonable? Now, you’re not the first jury in this world or even in this. State that’s been faced with the very problem we’ve got here today. A lot of juries have had this kind of problem, and every time — or a lot of times they’ve stood up and they’ve said ‘guilty,’ and this is what’s called a recent unexplained possession of stolen goods case.”

The bill of exception and record reflect that at the time such argument was made, the following transpired:

“MR. AGUIRRE: We object to that, and move for a mistrial.
“THE COURT: Overrule the mistrial. It will be overruled, but I sustain the objection to that line of argument.”

No request was made by appellant that the court instruct the jury not to consider the argument.

In his brief, appellant insists that such argument presents reversible error because it constituted a reference to his failure to testify and also to his silence while under arrest.

It should first be noted that appellant stated no grounds of his objection to the complained-of argument. Such an objection, without stating the grounds or reason therefor, is insufficient to predicate error. See: Ingram v. State, Tex.Cr.App., 363 S.W.2d 284, and cases therein cited.

We observe, however, that the argument, when viewed in light of the evidence, does not reflect error. Berry v. State, 87 Tex.Cr.R. 559, 223 S.W. 212; Vineyard v. State, 131 Tex.Cr.R. 476, 100 S.W.2d 362. Had the trial court overruled appellant’s objection there would have been no error.

In his second ground of error, appellant insists that the court erred in admitting evidence showing that windows were found broken at the scene of the burglary, over the objection that there was no testimony connecting him with the breaking.

To sustain appellant’s conviction it was incumbent upon the state to first prove a burglary. Evidence that windows of the building were broken was admissible in making such proof. The proof of appellant’s unexplained possession of the recently stolen property, taken from the building, was sufficient to sustain his conviction for the burglary. Adame v. State, Tex.Cr. App., 372 S.W.2d 545.

In Ray v. State, Tex.Cr.App., 80 S.W.2d 973, cited by appellant, the question presented was the sufficiency of the evidence to sustain a conviction for attempt to commit burglary and not the admissibility of evidence. The case is not here controlling.

The ground of error is overruled.

The judgment is affirmed.