author: CLAY, COMMISSIONER.

text:
    COMMONWEALTH LIFE INSURANCE COMPANY, Appellant, v. Arthur ELLIOTT et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 26, 1968.

      Logan E. Patterson, Robert Berger, Pineville, Charles A. Robertson, Ogden, Robertson & Marshall, Louisville, of counsel, for appellant.
    Lohren F. Martin, Jr., H. M. Sutton, Sutton, Martin & Forcht, Corbin, for ap-pellees.
   CLAY, COMMISSIONER.

Appellees as beneficiaries recovered a judgment of $7,000 against appellant on a life insurance policy issued in the name of their grandson Donald Elliott who was killed in an automobile accident. The principal defense was that the policy had lapsed for nonpayment of premium.

Appellees had taken out four insurance policies with appellant, three on their own lives and one on their grandson. The premiums were payable on a weekly basis but were collected monthly in cash from ap-pellees.

On March 10, 1965, appellant’s agent stopped at appellees’ house to collect the monthly total of weekly premiums on all four policies, which would have required a payment of $17.75. (This would have included two past due weekly premiums and three premiums paid in advance.) The payment then made by Mr. Elliott, one of the appellees, was $13.80. The controversy in the case involves the factual and legal effect of this payment.

According to appellant’s agent, appellees wished to drop their grandson’s policy. The weekly premiums due on that policy for the month of March (the first of which was due March 1) would have been $3.95. Deducting this amount from $17.75 gives a figure of $13.80, which was the exact amount due to keep the other three policies in force. On the premium receipt book, which was returned to appellees and was in their possession at all times, the agent crossed out the name of Donald Elliott as an insured and listed five weekly premium payments of $2.76 (totaling $13.80 for the month), the total of weekly premiums payable on the other three policies.

The following month, on April 7, the agent collected $11.04 and entered in the receipt book four weekly premium payments of $2.76, the exact amount of premiums payable on the other three policies for that month. At no time did appellees pay or offer to pay the required premiums to keep all four policies in force after March 1. The premium receipt book is documentary evidence that no premiums were paid on the grandson’s policy after March 1.

The reason for the payment of $13.80 on March 10, instead of $17.75 which was then due (according to the customary way appel-lees paid these premiums), is explained by appellee Elliott in the following manner. He stated there was no discussion of dropping the grandson’s policy but it just happened that $13.80 was every penny he had at the time. He also said he told the agent that the balance of the premiums would be paid in April. (He made no tender of this balance when the agent made his collection on April 7.)

Appellees’ theory of recovery is that if appellant’s agent had applied the $13.80 pro rata on all four policies, this would have kept them in force until March 15, and with the grace period, the grandson’s policy would have been in force when he was killed on April 10.

Though several questions are raised on appeal, we believe the controlling issue is whether appellant was entitled to a directed verdict on the ground the evidence conclusively shows a default in the payment of premiums on the grandson’s policy after March 1.

No one questions the requirement of the policy that premium payments be made in advance. The appellees admit a failure to pay on March 10 the full amount collectible on all policies. The premium receipt book, which was in appellees’ possession and with respect to which no notation is disputed, shows that the listed policy issued on the life of the grandson was marked out in ink and this obliteration of the policy notation was on the book when it was returned to appellees on March 10. This book also showed that for the month of March, and the following April, appellant’s agent had collected weekly premium payments of $2.-76, which was the aggregate of premiums due on the three policies on their own lives. These premiums were listed and totaled in the front of the book. This documentary evidence clearly establishes that no premium payments after March 1 were being applied on the grandson’s policy, and fully supports appellant’s agent’s version of the March 10 transaction.

To overcome the consistent and apparently normal course of conduct on the part of the insurance company, we have the testimony of the appellees to the effect that they did not intend to drop the insurance on Donald. Here is a case, however, where the documentary evidence and the actions of appellees speak louder than this lone statement of intent. We have already discussed what the premium receipt book shows. While it is true appellees were unable to read or write, they must be bound by what the unquestioned notations in that book disclosed (just as the insurance company was bound), particularly since there is no proof of misrepresentation, bad faith or overreaching on the part of appellant’s agent. Having entered into a contractual business relationship with appellant, and after a voluntary default which they made no attempt to rectify, appellees cannot avoid on the grounds of illiteracy a proper handling of their account.

The only evidence for appellees did no more than put them in an equivocal position. They do not say they advised the agent to apply part of the $13.80 payment to their grandson’s policy. They apparently knew that the agent could not waive the payment of this premium because their counsel’s brief specifically disclaims such a theory. Taking appellees’ evidence as true (although their reason given for the payment of $13.80 strains one’s credulity), it shows no more than the lack of a meeting of the minds with respect to the application of this payment. Yet the premium receipt book gave appellees notice of how it was accepted and applied.

The overwhelming evidence in this case supports appellant’s position that when appellees on March 10 tendered the agent the sum of $13.80, he applied that payment in the only reasonable way he could in the absence of specific directions to apply it otherwise. By virtue of the notations in the premium receipt book, appellant kept in full force and effect until April 1 the three policies on the lives of appellees. Had a subsequent claim arisen on one of those policies, appellant would have been estopped to claim that it had applied part of these premiums to the grandson’s policy. The rights of the parties were fixed on March 10 (and confirmed by the premium payments in April), and there is no evidence of substance to support the claim that the grandson’s policy was in full force and effect on April 10. (The extended insurance provision of this policy, which did not extend accidental death benefits, was still in force and appellant has paid the beneficiaries $1,000, the face amount of this policy.)

It is our opinion that the evidence was insufficient to prove a rightful claim on the policy sued on and a verdict should have been directed for appellant at the conclusion of all the evidence. Since this motion was overruled, appellant should have been granted judgment notwithstanding the verdict in accordance with its motion therefor.

The judgment is reversed, with directions to enter judgment for the appellant.

All concur.

      . It appears obvious it would have been to his interest to continue to collect premiums on all four policies.

      . Neither the record nor the briefs go into the mechanics of pro rating premium payments, or the authority of an agent to accept part payments.


source: Caselaw Access Project

author: MONTGOMERY, Judge.

license: Public Domain

text:
    Hilda T. HARRISON et al., Petitioners, v. Ben B. WRIGHT, Special Judge, etc., Respondent.
    Court of Appeals of Kentucky.
    Feb. 9, 1968.
    Jerry W. Nall, Nall & Stephens, Owens-boro, for petitioners.
    No appearance for respondent.
   MONTGOMERY, Judge.

Ben B. Wright, an attorney at law, was appointed on November 15, 1967, as special judge to try five certain cases indicated by name at a special term of the Webster Circuit Court. The petitioners, Hilda T. Harrison et al., were interested parties in one of the cases set for trial on November 27, 1967. This date was within a special term called by the regular judge to begin November 20, 1967, and to run through December 1, 1967. It is not certain whether the special term was called pursuant to KRS 23.110 or 23.120, but the order indicates that the special term was called to dispose of part of an excessive number of condemnation cases filed by the Commonwealth of Kentucky, Department of Highways.

On the trial date the case was continued and was reset for trial on December 18, 1967. On December 14, 1967, petitioners filed this original action to prohibit the respondent from trying the case on that date. They said that the respondent, as special judge, had, in effect, called a special term and was threatening to try petitioners’ case at a time other than at the special term for which he was appointed. It was insisted that respondent lost jurisdiction to try the case at the expiration of the special term ending on December 1, 1967, and that he had no jurisdiction to try the case on December 18, 1967. A temporary order of prohibition was granted. No response has been filed.

The position of the petitioners is sound. The rule is fully discussed in Hel-ton v. Commonwealth, Ky., 256 S.W.2d 14. See cases collected therein. The court held that the designation and commission of a special judge expired at the end of the special term. A trial conducted by him • after the expiration of the special term and of his authority was held to be a nullity. Since the respondent here would have been acting without authority and without jurisdiction on December 18, 1967, prohibition was appropriate. Chamblee v. Rose, Ky., 249 S.W.2d 775; Commonwealth ex rel. Breckinridge v. Wise, Ky., 351 S.W.2d 493. At the February 1968 term of the Webster Circuit Court the case load may be so reduced that the need for a special term or a special judge may not exist. Should the need exist, appropriate orders and designations can be made.

This case is distinguishable from Mills v. Broughton, Ky., 396 S.W.2d 310, and Wedding v. Lair, Ky., 404 S.W.2d 451, wherein the appointment' or designation was to try a single case without limitation as to time or term.

The temporary order of prohibition is made permanent.

All concur.


author: PALMORE, Judge.

text:
    Ed BARTON et al., Appellants, v. GAS SERVICE COMPANY, Inc., Appellee.
    Court of Appeals of Kentucky.
    Feb. 2, 1968.

      Joe Nagle, Denham, Ralston & Nagle, Middlesboro, for appellants.
    Grant F. Knuckles, James S. Wilson, Pineville, for appellee.
   PALMORE, Judge.

On July 16, 1964, a building owned by the appellant Barton and occupied by the appellants Nickens, French and their wives was destroyed by a fire which apparently originated in or with an explosion. The owner, the tenants, and the owner’s insurer brought this suit against the appellee, Gas Service Company, Inc., for property loss and damages, alleging in general terms that the fire was caused by its negligence. They appeal from a summary judgment in favor of the defendant company.

The single question to be decided is whether, from the information thus far developed in the proceeding, it is so clear the plaintiffs cannot win that a summary judgment is appropriate.

After commencement of the action the plaintiffs served interrogatories on the defendant company, which were answered in due course, and both sides took discovery depositions. In addition, an affidavit of the plaintiff Nickens was attached in support of the response to the defendant’s motion for summary judgment. It is conceded that none of the information so elicited indicates the cause of the explosion and that further evidence in this respect would be necessary in order for the plaintiffs to survive a motion for directed verdict in the event of a trial.

The building was constructed in 1950. It consisted of garage and storage space on the ground floor and two apartments upstairs. The ground floor space was rented to the Kerns Bakery Company. The Frenches and Nickenses occupied the two apartments. French was an employe of Kerns Bakery Company. He and his wife moved into their apartment on the morning of July 16, 1964, and the explosion occurred between 8:00 and 9:00 o’clock that night. The Nickenses had lived in the other apartment since 1960.

Each of the two apartments was equipped with a gas floor furnace, and the French apartment was furnished with a gas cook stove. The two apartments were separately metered for gas, which was provided by the defendant company from its gas main located across the street from the apartment house. The meters were located on the outside wall of the building. As was customary, the company had removed the meter for the French apartment when the previous tenants left, and during the afternoon of July 16 two of its service men installed another meter for the Frenches. One of these men testified that when the gas was turned on the hand on the meter dial remained stationary, indicating the absence of any gas leak in the metered premises, and that he then lighted the cook stove in the French apartment and found it to be in good order. Had he detected any evidence of a leak, his instructions from the company were to cut off the supply and notify the owner. The duties of a supplier of gas under such circumstances are set forth in Moore v. London Gas Company, Ky., 372 S.W.2d 270 (1963).

A gas hot water heater was located in the middle of the downstairs garage area. Evidently it was on the Nickens’ meter, because the evidence indicates it served both apartments. It was in use on the day of the fire. At the time of the fire two motor trucks were in the garage. Each had gasoline in its fuel tank. The hot water heater was located on the floor between them, about four feet from each. When discovered, the fire had enveloped the downstairs ceiling area over the trucks.

None of the witnesses professed to know how the fire originated, except insofar as it seems to have been accompanied by an explosion. The meter had been installed in the mid-afternoon. Mrs. French’s father was in and out of the apartment most of the afternoon and smelled gas after the gas service men came. He says he reported this to them when they came upstairs to light the stove, and that the odor of gas was not as strong after they left. Mrs. French made a trip to London, Kentucky, during the afternoon and returned at about 7:00 P.M. At that time, she says, she smelled gas “in the apartment and downstairs” and so told her husband. The explosion took place between one and two hours later.

In his discovery deposition Nickens, when asked if he knew of any witnesses who purported to know anything about the fire, read off a list of 14 names. None of these persons has testified and the record does not suggest what, if anything, can or cannot be proved by any of them.

What happened here is that the defendant took the testimony of the parties and witnesses who seemed most likely to have the information necessary to establish the plaintiffs’ case, and the information thus extracted is not enough to establish a case. Nor is the evidence obtained by the plaintiffs through examination of the defendant’s employes and representatives. Nothing, however, has been developed that is fatal to the cause of action the plaintiffs assert, nor is it clear that it cannot be established through other witnesses.

The question of when a summary judgment is proper continues to be one of the most difficult problems encountered under the Rules of Civil Procedure. A satisfactory rule of thumb to answer it seems to defy captivity. In this case we have concluded that the judgment was premature and should not have been granted because, although the facts and evidence thus far developed do not establish the existence of a genuine issue of material fact, neither do they establish the non-existence of such an issue.

“In determining whether the moving party has satisfied his burden it is helpful to refer to the theory underlying a motion for a directed verdict, for functionally the motion for summary judgment and the motion for a directed verdict are closely akin to each other. While the first is necessarily made on evidentiary materials largely derived from the moving and opposing papers and the second is based largely on live evidence proffered at trial, the moving party in making both motions takes the position that he is entitled to judgment as a matter of law on a set of facts that are not genuinely in dispute. In other words, if it is clear that a verdict would be directed for the movant on the evidence presented at the hearing on the motion for summary judgment, the motion for summary judgment may properly be granted. The operation of the motion, is then, essentially the same in reference to those issues upon which the movant for summary judgment would have, at trial, the burden of proof. The operation is, however, somewhat different where the motions are made by the opponent of the party with the trial burden. Assume, for example, that the movant is the defendant who is attacking the merits of plaintiff’s claim. On motion for directed verdict the party resisting the motion, i. e., the plaintiff, has had to and has presented his evidence, which is then scrutinized by the motion. On motion for summary judgment by a defendant on the ground that plaintiff has no valid claim, the defendant, as the moving party, has the burden of producing evidence, of the necessary certitude which negatives the opposing party’s (plaintiff’s) claim. This is true because the burden to show that there is no genuine issue of material fact rests on the party moving for summary judgment, whether he or his opponent would at trial have the burden of proof on the issue concerned; and rests on him whether he is by it required to show the existence or non-existence of facts.” (Emphasis added.) 6 Moore’s Federal Practice Par. 56.15 [3], p. 2341 (2d ed. 1966). In a footnote (Id., p. 2342) to the statement thus quoted, the author comments further as follows: “In analogizing the summary judgment to a directed verdict it should be borne in mind that summary judgment, to avoid a trial, should not be granted if there is the slightest doubt as to the facts * * . And hence the grant of summary judgment may be improper where at the trial the grant of a directed verdict may be proper.”

It was observed in Robert Simmons Const. Co. v. Powers Regulator Co., Ky., 390 S.W.2d 901, 905 (1965), that in some cases the party opposing a motion for summary judgment may be forced to show his hand, or enough of it to defeat the motion, before trial on the merits; but only when the moving party has first established the apparent non-existence of a genuine issue of material fact. Normally, and usually, that situation would come about in the following manner: If the moving party “by affidavit or otherwise presents materials which would require a directed verdict in his favor, if presented at trial, then he is entitled to summary judgment unless the opposing party shows that affidavits are then unavailable to him, or he comes forward with some materials, by affidavit or otherwise, that show there is a triable issue of material fact.” Id., § 56.11 [3], p. 2171. See, for example, Tarter v. Arnold, Ky., 343 S.W.2d 377 (1961).

Another situation in which a party becomes entitled to a summary judgment commonly occurs when it is clear that the evidence before the court on the motion for summary judgment represents all the responding party can do, in that he could show nothing more or different to strengthen his case upon a trial. To illustrate, see Payne v. B-Line Cab Company, Ky., 282 S.W.2d 342 (1955); American Ins. Co. v. Horton, Ky., 401 S.W.2d 758 (1966); and Haywood v. Allen, Ky., 406 S.W.2d 721 (1966).

In the present case it is not clear that the plaintiffs cannot produce the necessary showing of causation at a trial on the merits. Neither this nor the trial court can know, from the record, what the other witnesses named in the Nickens deposition will be able to contribute to a solution of that question. The testimony of Mrs. French’s father that he smelled gas and reported it to the gas service men is enough to indicate a genuine issue on the question of negligence.

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

All concur.

       That is, if it is clear that the evidence before the court on the motion for summary judgment is substantially the same as it would be on a motion for directed verdict. (Our comment.)


author: CULLEN, Commissioner.

text:
    James Howard GOODMAN, Appellant, v. Commonwealth of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 2, 1968.

      Roy L. Steers, Franklin, Nathan Harsh, Gallatin, Tenn., for appellant.
    Robert Matthews, Atty. Gen., Joseph H. Eckert, Asst. Atty. Gen., David Martin, Commonwealth’s Atty., Franklin, for appel-lee.
   CULLEN, Commissioner.

James Howard Goodman appeals from a judgment imposing a ten-year sentence for armed robbery. He asserts three grounds of error.

The first ground consists of an alleged improper invasion of the privacy of the jury room by the trial judge, with a potential of prejudicial effect.

The jury retired for deliberation at 2:30 p. m. on the day of the trial. Approximately one hour later the trial judge knocked on the door of the jury room and when the door was opened he was heard by persons in the courtroom to say that he would give the jury fifteen more minutes in which to deliberate. Counsel for appellant made an immediate objection and moved to discharge the jury, but his objection and motion were overruled. The jury did return its verdict within the next fifteen minutes.

Objections to the alleged improper invasion of the jury room were reasserted in a motion for a new trial. A hearing was conducted on the motion at which the foreman of the jury was interrogated. He testified that when the judge knocked on the door he came to the door by himself; the judge asked “if we were going to be able to come to a verdict, and I told him that I thought we were, that we had just about reached a verdict;” the judge then asked “Do you think you can finish it or come to a verdict in fifteen minutes ?” and the foreman replied that he thought they could. It was not made clear by the foreman’s testimony whether the other members of the jury heard the foreman’s conversation with the judge.

Under the holdings in Puckett v. Commonwealth, 200 Ky. 475, 255 S.W. 124, 125, 34 A.L.R. 96; Byerly v. Commonwealth, 297 Ky. 782, 181 S.W.2d 429, and Smith v. Commonwealth, Ky., 321 S.W.2d 786, the trial judge’s actions here were improper. The only question, then, is whether they .were prejudicial. The decisions in Puckett and Byerly seem to stand for the proposition that prejudice will be assumed in the absence of a showing that there could not have been any prejudice. Those decisions also say that this court will not stop to weigh probabilities or try to discover whether there was in fact a prejudicial effect.

In the instant case the judge’s actions could very well have been interpreted by the jurors as a direction to hasten or shorten their deliberations — to cease calm and mature consideration of the case and rush to a decision. The fact that the foreman said he did not himself so interpret the actions is not controlling, because we do not know what the other jurors thought. In fact, we do not know to what extent the other jurors heard or were informed of the conversation between the judge and the foreman. If they did not hear or were not properly informed there is no way to know what impression they received from the judge’s appearance at the door. This points up the impropriety of a judge’s talking with one juror out of the hearing of the others, even in the courtroom. See Harris v. Commonwealth, Ky., 411 S.W.2d 924.

The very fact that the trial judge felt it necessary to conduct a hearing to establish what happened and what was said illustrates the problem of determining whether or not prejudice could have occurred.

Certainly it has not been shown here that prejudice could not have resulted. Accordingly, we must hold that the error was prejudicial, such as to require a reversal of the judgment.

Appellant’s second and third points relate to his alleged unlawful arrest in Tennessee and transportation to Kentucky for trial without compliance with the extradition laws. It is sufficient to quote the following universal rule:

“Where a person accused of crime is found in the territorial jurisdiction where he is charged, and is held under process legally issued from a court of that jurisdiction, neither the jurisdiction of the court nor the right to put him on trial for the offense charged is impaired by the manner in which he was brought from another jurisdiction, whether by kidnapping, illegal arrest, abduction, or irregular extradition proceedings. * * 21 Am.Jur.2d, Criminal Law, Sec. 381, p. 401.

The judgment is reversed with directions to grant a new trial.

WILLIAMS, C. J., and MILLIKEN, OSBORNE, PALMORE and STEIN-FELD, JJ., concur.


author: EDWARD P. HILL, Judge.

text:
    W. C. STORY, Appellant, v. Virginia STORY (Brannan), Appellee.
    Court of Appeals of Kentucky.
    Feb. 2, 1968.

      Richard M. Compton, Todd & Compton, Lexington, for appellant.
    Weldon Shouse, Shouse, Barker & King, Lexington, for appellee.
   EDWARD P. HILL, Judge.

This is an appeal from a judgment for appellee, the former wife of appellant, in the amount of $5960 for 298 weekly child support payments of $20 each found to be in arrears on the date of the judgment appealed from. The original agreed judgment approved by the court was entered in 1958.

In October 1961, appellant discontinued the weekly payments, which he says he did pursuant to an agreement reached by telephone with appellee. He states that on this date, and from sometime previous thereto, he had difficulty enjoying visitation rights contained in the judgment; that his son, William Curtis Story, was becoming nervous and upset by the visits; that appellee called appellant at his home, where appellant’s second wife answered; that it was definitely agreed during that telephone conversation that if appellant would give up his rights to have the child visit him, ap-pellee would forego and forgive the $20 weekly payments.

The telephone conversation was admitted by appellee, but she denied any agreement was reached to discontinue payments.

There are significant circumstances supporting appellant’s theory. However, the conflicting evidence presented a factual question for the chancellor. His findings may not be disturbed unless found to be clearly erroneous. CR 52.01. This we do not find.

The most potent “significant circumstance” supporting appellant’s position is the time elapsing between October 1961 and May 1967 (the date of the judgment appealed from), during which appellee made no protest or objection so far as the record discloses. Neither did she ask that appellant be cited for contempt for failure to pay, which she had done once previously. Nevertheless, court judgments, including those for child support, must command dignity and respect. There is a well-known method of modifying them, which was spelled out in the 1958 judgment in question. Controversies as a result of out-of-court modifications and negotiations congest the divorce courts. An agreement to modify a judgment should be shown with “reasonable certainty” as announced in Schofield v. Schofield, Iowa, 149 N.W.2d 810, cited by appellant. In the light of the findings of fact by the chancellor, we cannot say appellant showed with “reasonable certainty” that the judgment of 1958 was modified.

The judgment is affirmed.

All concur.


author: DAVIS, Commissioner.

text:
    Carl CABE, Commissioner of Labor, Commonwealth of Kentucky, etc., Appellant, v. LEXINGTON LAUNDRY COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 2, 1968.
    Paul D. Rehm, Versailles, Thomas R. Emerson, Dept, of Labor, Frankfort, for appellant.
    D. G. Lynn, Boehl, Stopher, Graves & Deindoerfer, Darrell B. Hancock, Fowler, Rouse, Measle & Bell, Lexington, William P. Swain, Louisville, for appellees.
   DAVIS, Commissioner.

The narrow question presented in this workmen’s compensation proceeding is whether there is any liability against the Special Fund in case of an “open-end” award for temporary disability as opposed to permanent disability.

On July 12, 1965, Larma D. Pinkerton sustained an injury to her right hand while engaged in her employment as a presser for the Lexington Laundry Company. After considering lay and medical testimony, the Board rendered an “open-end” award in which it recited that the claimant has “temporary total disability.” The opinion of the Board has this language:

“There is not sufficient evidence in this record to make a finding on the permanency of this disability.”

The award was granted against the Lexington Laundry Company for appropriate payments “ * * * for such period she remains totally disabled, not to exceed a period of 425 weeks, * * KRS 342.-095(1).

The employer appealed to the Fayette Circuit Court seeking a review of the action of the Board. The circuit court affirmed that part of the Board’s award which found the claimant to suffer temporary total disability but reversed that portion of the Board’s award which imposed sole responsibility on the employer. The circuit court remanded the proceeding to the Board with directions to apportion the award between the employer and the Special Fund. The Special Fund has appealed here, testing the propriety of that portion of the circuit court’s order which remanded the case for apportionment.

It is not disputed that there was medical evidence of a prior nondisabling arthritic condition which was aroused into disabling reality by the compensable injury sustained on July 12, 1965. The Special Fund bases its appeal on its contention that KRS Chapter 342 does not create any liability against the Special Fund for temporary disability to the body as a whole. The chief basis for this argument is the Special Fund’s interpretation of KRS 342.120(3), which is quoted for convenient reference:

“If it is found that the employe is a person mentioned in subsection (1) (a) or (b) and a subsequent compensable injury or occupational disease has resulted in additional permanent disability so that the degree of disability caused by the combined disabilities is greater than that which would have resulted from the subsequent injury or occupational disease alone, and the employe is entitled to receive compensation on the basis of the combined disabilities, the employer shall be liable only for the degree of disability which would have resulted from the latter injury or occupational disease had there been no pre-existing disability or dormant, but aroused diseased condition.” (Emphasis added.)

It is observed that the quoted statute refers to “additional permanent disability.” It is reasoned by the Special Fund that the restriction thus imposed absolves it from responsibility, absent a finding of permanent disability vis-a-vis temporary disability-

Countering this argument the employer calls attention to Green Valley Coal Company v. Carpenter, Ky., 397 S.W.2d 134, and Clay Coal Corporation v. Abner, Ky., 401 S.W.2d 56, together with KRS 342.005.

In Green Valley Coal Company v. Carpenter, there was an “open-end” award, and this court directed that the proceeding be remanded to the Board for procedure looking toward an apportionment. It does not appear that, the contention was made in Green Valley Coal Company v. Carpenter that the Special Fund could not be held without a finding of permanent disability.

In Clay Coal Corporation v. Abner, Ky., 401 S.W.2d 56, another “open-end” award was involved, and it was held that there was substantial evidence supporting the Board’s finding that the disability had resulted solely from the injury, so that no apportionment was required. In each of the cases just cited, this court assumed that apportionment was a proper issue in an “open-end” award situation.

It will be observed that KRS 342.005(2) is couched in this language:

“The board shall apportion the aggregate extent and duration of disability among the contributing causes including, but not limited to, the following:
(a) ‘Traumatic injury by accident’ ;
(b) Pre-existing disease previously disabling ;
(c) Pre-existing disease not previously disabling but aroused into disabling reality by the injury or occupational disease.”

We think it is significant that the just quoted portion of the statute relates to the “extent and duration of disability” as regards the matter of apportionment. It would appear futile to require determination of the “duration” of disability only in instances of permanent disability. In any event, it is our view that an “open-end” award of the type involved here is equivalent to an award for permanent disability for the purposes at hand. We are unable to perceive any reasonable basis for interpreting the statute as narrowly as urged by the appellant. We conclude that the circuit court correctly remanded the case for apportionment proceedings.

The judgment is affirmed.

All concur.


author: W. MAJOR GARDNER, Special Commissioner.

text:
    C. Leslie DAWSON, Commissioner, Department of Economic Security, Appellant, v. Melvie HENSLEY, Appellee.
    Court of Appeals of Kentucky.
    Jan. 26, 1968.
    Paul E. Tierney, Forest Smith, Frankfort, for appellant.
    Karl S. Forester, Harlan, for appellee.
   W. MAJOR GARDNER, Special Commissioner.

Appellee, Melvie Hensley, applied for public assistance, claiming he was physically unable to work. The Division of Public Assistance determined that he was not incapacitated and denied his claim. The referee and the appeal board concurred in the findings. The case was appealed to the circuit court, where it was remanded to the board for another hearing “with proof to be taken by deposition in the proper manner.” Written reports and statements of several physicians were made parts of the record. No attempt was made to take the deposition of the doctors, nor were they called on to give oral testimony before the examining officers.

Judicial review of the board’s action is limited by KRS 205.234(3) to whether or not: (a) there was sufficient probative evidence to support the appeal board’s order; (b) the regulations upon which the order was based are reasonable; and (c) the appeal board acted arbitrarily, unlawfully, or in such a manner as to constitute an abuse of discretion. Apparently the trial judge was of the opinion that since there was no evidence presented in the usual trial manner there was no “probative evidence” to support the board’s findings.

We do not find any authority limiting the term “probative evidence” to testimony presented by deposition or oral statement made in open court. As stated in Globe Indemnity Co. v. Daviess, 243 Ky. 356, 47 S.W.2d 990, “Probative evidence is testimony carrying the quality of proof and having fitness to induce conviction of truth. It consists of fact and reason co-operating as co-ordinate factors.” From a reading of the provisions of Chapter 205, we are convinced the legislature did not intend to require that only evidence presented by deposition or oral hearing before the referee or board could be reviewed by the court. From the filing of the application through the various steps of determination by the Division of Public Assistance, the referee, and the appeal board, it is contemplated that the evidence will be by statements, reports, and affidavits. Depositions are permitted but are not required. While the precise question was not in issue in Department of Economic Security, Division of Public Assistance v. Mills, Ky., 391 S.W.2d 355, the court held that the appeal board’s order could be reviewed by the court only to determine “whether there was any substantial evidence that supports the finding of the Appeal Board.” In that case the board decided that applicant had ceased to be eligible for aid for his dependent child, the determination being made “upon the basis of the two medical reports.” No deposition evidence was in the record.

In Cabe v. City of Campbellsville, Ky., 385 S.W.2d 51, it was held to be the duty of the court to sift and sort the evidence to determine if there was “some reliable and substantial evidence” on which to base the decision in question. See also Dawson v. Driver, Ky., 420 S.W.2d 553.

Appellee insists that this being a judicial review all proof must conform to the Kentucky Rules of Civil Procedure. We find the code making provision for just this kind of procedure. As recited in CR 1, the rules govern the procedure and practice in all courts of this state, “with the exception that they do not govern procedure and practice in any special statutory proceeding insofar as they are inconsistent or in conflict with the procedure and practice provided by the applicable statute.” So, we find that where the statute, as in the present case, sets forth the procedure, the rules must give way to it if they are in conflict or inconsistent with the statute. Chapter 205 provides the manner of presenting the evidence, that the evidence be certified to the court by the commissioner, and that the court shall hear the record as certified by the commissioner.

The judgment is reversed and the case is remanded for review as prescribed by KRS 205.234.

All concur.


text:
    OMAN CONSTRUCTION COMPANY, Inc., Appellant, v. Bertha M. MILLER, Executrix of the Estate of Maurice L. Miller, Deceased, Appellee.
    Court of Appeals of Kentucky.
    Nov. 10, 1967.
    As Modified on Denial of Rehearing March 1, 1968.
    James W. Stites, Charles W. Porter, King & Porter, Louisville, for appellant.
    Raymond C. Stephenson, Louisville, Ernest G. Baxter, Stanford, for appellee.
   CULLEN, Commissioner.

In an effort to avoid a barricade in the form of a large sign which the appellant, Oman Construction Company, had placed across the inner lane of the two westbound lanes of 4-lane U.S. Highway No. 60 east of Middletown, Kentucky, one Maurice L. Miller, Sr., who had approached the scene from the east, applied the brakes on his car and it skidded across the median area into the path of and was crushed by an east-bound truck. Miller sustained fatal injuries and his passenger, Bruce De Rossett, sustained injuries of a serious nature.

Miller’s personal representative sued Oman. De Rossett sued Oman and Miller. Oman cross-claimed against Miller for contribution or indemnity on De Rossett’s claim. The jury found against Oman on the Miller claim and the De Rossett claim and on the cross-claim. The jury found for the Miller estate on De Rossett’s claim. Miller’s personal representative recovered $17,500 and De Rossett recovered $15,000,-from Oman Construction Company. Oman paid the De Rossett judgment and appealed only as against the Miller estate, claiming (1) that Oman was entitled to judgment n. o. v. on the Miller claim because Oman was as a matter of law not negligent or Miller was as a matter of law contributorily negligent; and (2) that Oman was entitled to indemnity from Miller’s estate on the De Rossett claim because the accident was caused solely by Miller’s negligence, or Oman was at least entitled to contribution from the Miller estate because Miller was a joint tortfeasor.

It is our opinion that the evidence presented jury questions both as to Oman’s negligence and as to Miller’s negligence. Wherefore we are affirming the judgment.

Prior to the day of the accident work had been carried on for several months at a point on U.S. Highway No. 60 where access roads to and from Interstate Highway No. 1-64 were being connected to U.S. 60. Approaching this point from the east the highway makes a downhill slope for a distance of around 1100 feet, beginning at a crest of a hill where the highway comes out of a curve. About at the crest of the hill, some 1100 to 1200 feet from the point where the road work was being done, there was a diamond-shaped sign on a metal post standing on the right (north) shoulder, bearing the words “ROAD CONSTRUCTION AHEAD.” This sign had been there all of the months the work had been going on.

The access roads being connected with U.S. 60 came into U.S. 60 from the south, so most of the construction work as it affected U.S. 60 was limited to the east-bound lanes. The evidence in the instant case was that at no time prior to the day of the Miller accident had the construction work interfered with the regular, flow of westbound traffic at 60 miles per hour past the construction site. Miller had traveled the road several times a week for a period of months and was familiar with the nature of the work.

On the day of the accident Oman was engaged in work on a deceleration lane in the median area on U.S. 60, which work necessitated some movement of construction vehicles in the inner west-bound lane. The Oman foreman therefore placed in the inner west-bound lane, 900 feet east of the work point, .a large sign, 4 feet 61/⅞ inches high and 5 feet 8 inches wide, bearing the words “DANGER-ROAD UNDER CONSTRUCTION.” The sign substantially blocked the inner west-bound lane. The point at which it was placed was below and west of the crest of the hill. The evidence was that a motorist coming from the east, in a passenger vehicle, could see the top of the sign when some 430 feet away, but at that point could not tell where the sign was sitting (that is, whether in the median or elsewhere). The evidence further was that when within 300 feet a motorist could see the entire sign and its location, if there was no traffic to block the view.

At the same time that he placed the above-mentioned sign on the roadway, the Oman foreman also placed a similar sign on the right (north) shoulder around 150 to 200 feet east of the diamond-shaped, permanent sign mentioned at an earlier point in this opinion.

The accident occurred around 1:00 p. m. The day was clear, the sun was shining and the road was dry. Miller, with De Rossett as his passenger, approached the scene from the east. The testimony for the plaintiffs was that as the Miller car came around the curve approaching the crest of the hill it was behind a large cattle truck, which was straddling the center line of the west-bound lanes. The truck pulled over into the right lane and Miller then undertook to pass the truck. De Rossett’s testimony was: “We pulled out in this lane to pass and before we got straightened up, well, there sat that sign * * * when we saw the sign I’d say we was about 100 feet from the sign when we pulled out from behind the tractor and trailer.” Miller applied his brakes and his car skidded across the median area into the path of an east-bound truck.

As concerns the question of Oman’s negligence, we think reasonable minds could conclude that Oman did not use ordinary care in placing the sign as a barricade across the inner traffic lanp. The sign was below the crest of a hill and was not visible for any appreciable distance to a motorist traveling behind a truck, the other temporary sign placed by Oman on the shoulder of the road was not calculated to constitute an effective warning because motorists had been lulled into a feeling of security by reason of the fact that a permanent warning sign had been there for months and there never had been any condition at the work site requiring even a reduction of speed. The traffic lanes had never been barricaded or impeded. Without regard to the foregoing, we think reasonable men could conclude that the barricading of a traffic lane is such a radical and dangerous thing as to demand specific warnings of the existence of the barricade — large, clear and unmistakable. It is a matter of common experience that in many instances when a traffic lane ends or is blocked, warning is given by frequent, multiple signs, barrels, painted lines, etc. As an alternative, in temporary situations flagmen have been used. In the instant case there were flagmen near the site of the work but none at a place to give warning of the barricade.

We conclude that the question of Oman’s negligence properly was submitted to the jury. For the same reasons we think that the question of Miller’s negligence (both as concerns his right to recover from Oman and as concerns his liability on De Rossett’s claim) was for the jury. Reasonable men could believe that Miller could not and did not see that there was a barricade until he started to pass the truck; that his failure to be alerted by the temporary sign on the shoulder of the road was not negligence because the construction work warned of by the permanent sign which had been at that place for months had never been such as to present any impediment to traffic; and that Miller reasonably was not required to anticipate that a traffic lane would be blocked without distinct and specific warning thereof. Also, we think that reasonable men could find that Miller’s action in abruptly applying his brakes, rather than attempting to fall back in behind the truck, was excusable emergency action.

The judgment is affirmed.

WILLIAMS, C. J., and HILL, MILLI-KEN and STEINFELD, JJ., concur.

PALMORE, J., not sitting.

MONTGOMERY and OSBORNE, JJ., dissenting.


author: ONION, Judge.

text:
    Ex parte F. M. MARCH.
    No. 40999.
    Court of Criminal Appeals of Texas.
    Feb. 14, 1968.
    V. F. Knickerbocker, Vern F. Martin, Midland, for relator.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

This is an original application for Writ of Habeas Corpus brought by applicant seeking his release from the Texas Department of Corrections. He alleges the order cumulating the sentences by virtue of which he is confined is insufficient. Applicant first presented his habeas corpus application to the convicting court as required by Article 11.07, Vernon’s Ann.C.C.P. See Ex parte Young, 418 S.W.2d 824. The Trial Judge, the Hon. Archie S. Brown, has made the writ returnable to this Court.

From the record before us it appears that the applicant was convicted of a felony on January 27, 1954, in Cause No. 53369 in the Criminal District Court of Bexar County, Texas (now the 144th District Court) and assessed a punishment of three years confinement in the penitentiary. Sentence was never imposed and the trial court suspended the imposition of the sentence and the applicant was placed on probation subject to certain conditions and terms.

On September 29, 1955, during the probationary term, applicant was convicted of another felony in Cause No. 54449 in the Criminal District Court of Bexar County, and sentenced to serve not less than two nor more than three years in the penitentiary. On this same date following a hearing pursuant to the state’s motion to revoke probation previously granted in Cause No. 53369, the court ordered the probation revoked, and for the first time imposed sentence in Cause No. 53369. In said sentence the court provided for cumulation of the sentence with the sentence imposed in Cause No. 54449.

It is this order of cumulation that the applicant attacks.

The record further reflects that applicant was committed to the penitentiary by virtue of said sentences, later was released on parole, and subsequently became a fugitive parole violator but was arrested and returned to the Texas Department of Corrections on January 1, 1967. It appears from the record that the applicant now has credit in excess of four years in the Texas Department of Corrections and has completed serving the sentence in said Cause No. 54449. It is his contention that he is entitled to release as the cumulation attempted is void and the two three-year sentences must be interpreted as having run concurrently.

Applicant first claims that the trial court was without authority to cumu-late the sentences on September 29, 1955. Here, we must be careful to distinguish between the methods available to the trial court in granting probation. Under the provisions of former Article 781b, Sections 1 and 3, V.A.C.C.P., enacted in 1947, and in effect at the time of applicant’s probation and on September 29, 1955, the trial court in granting adult probation was authorized to suspend either the imposition or the execution of the sentence. These same provisions were contained in former Article 781d, Sections 1 and 3, V.A.C.C.P., enacted in 1957 repealing Article 781b, supra. See also Article IV, Section 11 A, Texas Constitution, Vernon’s Ann.St.

Under such statutes when the court suspended the execution of the sentence, the sentence was actually pronounced and imposed, but the execution or carrying out of the sentence was suspended and the defendant released subject to conditions and terms of probation. Upon revocation of probation under this method, the trial court would order the sentence previously imposed to be executed or carried out as if probation had never been granted without the necessity of sentencing or re-sentencing the defendant at that time.

If the other method of granting probation was employed, the court would suspend the imposition of the sentence, and no sentence was ever pronounced or imposed except upon revocation of probation. In other words, when probation was revoked sentence would be imposed for the first time.

In Ex parte Minor, 167 Tex.Cr.R. 170, 319 S.W.2d 114, the trial judge utilized the suspension of the execution of the sentence method of granting probation to Minor in 1954. Upon revocation of probation in 1955 the court attempted to re-sentence the defendant and at that time also attempted to cumulate such sentence with other outstanding sentences imposed while the defendant was on probation.

In holding the cumulation void this Court said:

“When the term of court adjourned at which the 1954 sentence was imposed, the trial court lost all power to alter, change or amend the same, and the only order he could enter was to revoke it. He could not add further conditions to such sentence which were not, and under the facts could not have been, a part of such sentence at the time it was imposed.”

See also Ex parte Tucker, 168 Tex.Cr.R. 308, 325 S.W.2d 703; Ex parte Scott, 168 Tex.Cr.R. 353, 328 S.W.2d 190; Ex parte Rutherford, 171 Tex.Cr.R. 302, 350 S.W.2d 31; Ex parte Downey, 171 Tex.Cr.R. 296, 350 S.W.2d 20; Ex parte Hernandez, Tex.Cr.App., 364 S.W.2d 688; Ex parte Green, Tex.Cr.App., 375 S.W.2d 312; Ex parte O’Connor, Tex.Cr.App., 394 S.W.2d 815; Anderson v. State, Tex.Cr.App., 421 S.W.2d 667.

In Ex parte Minor, supra, the Court was careful to point out that we were not dealing with a case where the imposition of the sentence was suspended when probation was granted. When such method is utilized, as in the case at bar, and sentence is imposed for the first time following revocation, the court is free to cumulate the sentence with prior outstanding sentences. See Article 42.08, V.A. C.C.P. Therefore, applicant’s first contention is without merit.

It is interesting to observe that under the provisions of Article 42.12, Sections 1 and 3, 1965 Code of Criminal Procedure, the court, in placing a defendant on adult felony probation, is authorized only to suspend the imposition of the sentence. The method of suspending the execution is no longer available to the court. Anderson v. State, supra.

Applicant next contends that even if the trial court had the authority to cu-mulate, the recitals as to the prior conviction in the order of cumulation were insufficient and the order was therefore ineffective. Citing Ex parte Hamilton, 163 Tex.Cr.R. 283, 290 S.W.2d 673.

The cumulation order contained in the sentence in Cause No. 53369 reads as follows:

“It is further ordered by the court that said punishment herein shall begin and operate after the expiration of the present term of imprisonment which he is now serving in Cause No. 54449.”

In Ex parte Hamilton, supra, this Court did point out that any order of cumulation should give

1. The number of the prior conviction,
2. The correct name of the court in which the prior conviction was had,
3. The date of the prior conviction, and
4. The term of years assessed in the prior case.

See also Ex parte Collier, 156 Tex.Cr.R. 377, 243 S.W.2d 177; Ex parte Richmond, 163 Tex.Cr.R. 321, 290 S.W.2d 909; Ex parte Cox, 29 Tex.App. 84, 14 S.W. 396. Only recently in Ex parte Lewis, Tex.Cr.App., 414 S.W.2d 682, we further observed that it would seem desirable to include in the cumulation order the offense for which the defendant has been previously convicted. See Willson’s Criminal Forms, Anno.7thEd., Sections 2930, 2969.

Despite the lack of some of the specific and definite recitals recommended, this Court has held cumulation orders valid when such orders contained two, rather than three or more, details of the prior conviction. Ex parte Lewis, supra; Ex parte Shields, Tex.Cr.App., 371 S.W.2d 395; Ex parte Daffern, 162 Tex.Cr.R. 472, 286 S.W.2d 151; Ex parte Dyess, 161 Tex.Cr.R. 29, 274 S.W.2d 695; Ex parte Bell, 160 Tex.Cr.R. 490, 272 S.W.2d 530; Ex parte Collier, supra; see also Ex parte Pruitt, Tex.Cr.App., 385 S.W.2d 384; Ex parte Isom, 168 Tex.Cr.R. 434, 331 S.W.2d 753.

Further, this Court has held sufficient cumulation orders although reference is made only to the previous cause number provided the order was in the same court as the sentence to which it is made cumulative. Ex parte Lewis, supra; Ex parte Ogletree, 168 Tex.Cr.R. 429, 328 S.W.2d 446; Ex parte Lee, 161 Tex.Cr.R. 398, 278 S.W.2d 137. While such form is certainly not to be recommended, it has been held that the rule of certainty as to the beginning and ending of each sentence is not so strict as it is when the sentences sought to be cumulated are from different courts. Ex parte Hatfield, 156 Tex.Cr.R. 92, 238 S.W.2d 788; Ex parte Johnson, Tex.Cr.App., 218 S.W.2d 200; Ex parte Snow, 151 Tex.Cr.R. 640, 209 S.W.2d 931.

While recognizing the above-stated rule applicant contends it can have no application in the case at bar because, though the sentence containing the cumulation order was entered on the same day and in the same county as the sentence to which it is made cumulative, there is no showing that such sentence was entered in the same court. He points out that on September 29, 1955, Bexar County had a number of District Courts in addition to the Criminal District Court thereof, including a Criminal District Court No. 2. See Article 199-37, V.A.C.S. as amended by Acts 1955, 54th Leg., Chapter 262, p. 730. If the cumulation order was entered in a different court of the same county even on the same day, applicant would be correct in that a different rule applies, and that the cumulation order would be void. See Ex parte Wilkinson, Tex.Cr.App., 415 S.W.2d 426; Ex parte Lewis, supra; Ex parte Whitley, 171 Tex.Cr.R. 280, 347 S.W.2d 721; Ex parte Cannon, 161 Tex.Cr.R. 447, 278 S.W.2d 850; Ex parte Lucas, 275 S.W.2d 816, 161 Tex.Cr.R. 144; Ex parte McFarland, 160 Tex.Cr.R. 641, 274 S.W.2d 71; Ex parte Coleman, 159 Tex.Cr.R. 48, 261 S.W.2d 351; Ex parte McClain, 158 Tex.Cr.R. 115, 253 S.W.2d 863.

A careful study of the record convinces us that the sentence in Cause No. 54449, the hearing and revocation of probation in Cause No. 53369 and the order thereon, and the sentence in Cause No. 53369 which included the complained of cumulation order were all heard and entered in the Criminal District Court of Bexar County, Texas, on September 29, 1955.

While the sentence in Cause No. 53369, unlike the other instruments referred to, does not clearly reflect on its face in which district court it was pronounced, the record reveals that it was recorded in Volume 15 of the Criminal minutes of the Criminal District Court of Bexar County at Page 202. There is nothing in the record to indicate that this cause was ever transferred to another court or that Cause No. 53369 was heard at any time in another and different court.

We, therefore, reject applicant’s contention that cumulation order was insufficient.

The application for writ of habeas corpus is denied.


author: WOODLEY, Presiding Judge. MORRISON, Judge

text:
    Joseph Edward BIRD, Appellant, v. The STATE of Texas, Appellee.
    No. 40850.
    Court of Criminal Appeals of Texas.
    Dec. 13, 1967.
    On Motion to Reinstate Appeal Feb. 14, 1968.

      Robert E. McClendon, Amarillo, for appellant.
    Gene Compton, Dist. Atty., John W. Broadfoot, Asst. Dist. Atty., Amarillo, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is burglary; the punishment, enhanced by two prior convictions for a felony less than capital, life.

Sentence was pronounced June 16, 1967.

The only notice of appeal reflected by the record is that given on May 16, 1967, when judgment was rendered and June 9, 1967, when the motion for new trial was overruled.

Art. 44.08 Vernon’s Ann.C.C.P. requires that in cases such as this the notice of appeal necessary as a condition of perfecting an appeal to this court “shall be given or filed within ten days after sentence is pronounced.” (Sec. (c). Pointer v. State, Tex.Cr.App., 422 S.W.2d 439; Herbort v. State, Tex.Cr.App., 422 S.W.2d 456; De La Paz v. State, Tex.Cr.App., 424 S.W.2d 230; Hollingsworth v. State, Tex.Cr.App., 419 S.W.2d 854; Flores v. State, Tex.Cr.App., 419 S.W.2d 202.

The appeal is dismissed.

OPINION ON MOTION TO REINSTATE THE APPEAL

The record having been perfected and now reflecting that notice of appeal was given subsequent to sentence being pronounced, in compliance with Art. 44.08 Vernon’s Ann.C.C.P., the appeal is reinstated and the grounds of error set forth in appellant’s brief filed in the trial court will be considered.

Ground No. 1 is: “The evidence fails to prove that appellant ‘did by force break and enter’ the house allegedly burglarized.”

This ground of error is bottomed upon the fact that the testimony of the state’s accomplice witness, Jerry Keaton, was that the back door of the building was open and that “we walked in the back door and looted the safe.”

The evidence reflects that the building of the Cole Lumber Company alleged to have been burglarized was closed by the owner on September 26, 1966. About 3:30 A. M. a patrolman of the City of Amarillo noticed a rear window to a storage room had been knocked out or removed. The owner was called and upon arrival found that his building had been broken into and the safe which, according to one witness, weighed about four or five hundred pounds, had been taken. He testified that he had given no one consent to come on his property and take the safe which had been loaned to him. It had been unloaded with a mechanical lift when brought to the building.

Jerry Keaton, Floyd Collins Green, Billy Fred Mclntire and appellant Bird were each charged by separate indictment with the burglary. Keaton testified at appellant’s trial as an accomplice witness for the state. Appellant testified as a witness in his own behalf, and called as witnesses in his behalf his co-defendants who were occupying a jail cell with him.

Although his testimony did not include proof of a breaking and entry through a closed door or window, the testimony of the accomplice together with the evidence showing that the building which was closed was so entered and the safe which was found the next day was stolen from the building and “peeled” or broken into by the four indictees, is deemed sufficient proof of the breaking and entry by one or more of those who carried out the safe.

Ground of error No. 1 is overruled.

Ground of error No. 2 complains that the court erred in refusing to submit to the jury a charge on circumstantial evidence.

The record does not reflect compliance with the requirement of Art. 36.14 V.A.C. C.P. that the defendant or his counsel present his objections to the court’s charge before said charge is read to the jury.

The objections found in the record appear to have been filed long after the trial and there is no showing that such objections were called to the attention of the trial court or that the trial judge had any opportunity to rule on whether a charge on circumstantial evidence should be included.

Ground of error No. 2 is not before us. Sullivan v. State, Tex.Cr.App., 401 S.W.2d 246.

Ground of error No. 3 presents the most serious and what we deem to be the controlling question which is whether the evidence is sufficient to corroborate the testimony of the accomplice witness.

The facts relied upon by the state in this regard include the following.

Each of the four indictees had been recently released from the Department of Corrections. Each had two or more convictions for felonies less than capital.

Appellant registered at Elks Court, in Room 28, on September 19, and paid one week’s rent. The burglary was discovered about 3:30 A. M. on September 26.

Each of the four indictees testified that they were together during the night of September 26, but each denied that he participated in the burglary.

The accomplice witness, Keaton, who testified that the four were in the burglarized building and carried the safe out and put it in the 1965 blue Mustang Convertible, was found drunk in appellant’s apartment the next morning and was arrested for being drunk.

Later in the day the safe, which had been broken into and left in a culvert on a country road, was discovered and the Mustang Convertible, which had paint marks on the trunk lid and marks on the rear deck consistent with the safe being lifted into it, was stopped for a speeding violation while headed east away from downtown Amarillo. Appellant was, according to the arresting officer, lying on the back floor board. His testimony and that of his co-indictees Me-Intire and Green was that Mclntire was driving and appellant was lying on the back seat at the time the officer stopped them, and that they were headed for a bar.

Mclntire and Green testified that the Mustang had been borrowed by Mclntire from a friend in Dallas. Appellant testified: “I was told that it belonged to them (Mc-lntire and Green).” There was no testimony showing that the accomplice witness had the use of the Convertible when not in company with his co-indictees.

Appellant testified that when he, Green and Mclntire returned to his room the next morning, after having a sandwich and cup of coffee, buying some beer and visiting a bar, the landlady was getting his things together and “said the police had been there and told her to pick up all of my things, that they wanted them,” and that the three of them went back to the bar and had started to another when the Mustang Convertible was stopped, at which time he “had a hangover and was lying on the back seat.”

On cross-examination appellant testified that there was no question in his mind but that a burglary was actually committed; that he was asleep at the time and that he could not testify as to Keaton — “he was still up when I went to bed; he was up when I got up.”

The hypothesis that the accomplice witness alone committed the burglary, stole the heavy safe and drove away with it in the Mustang Convertible which was claimed by his co-indictee as belonging to or borrowed by one or more of them, is as unreasonable as is the hypothesis that without the knowledge of appellant or his other co-indictees who were sleeping in his room, he took said Convertible and looked elsewhere for assistance in committing the burglary.

The rule which we deem applicable is found in Cawley v. State, 166 Tex.Cr.R. 37, 310 S.W.2d 340:

“Proof that accused was at or near the scene oi the crime at or about the time of its commission is admissible in corroboration of the testimony of the accomplice, and may tend to connect the accused with the commission of the crime, so as to furnish sufficient corroboration to support a conviction when coupled with suspicious circumstances, such as * * * being in the company of the accomplice, * * * subsequent flight * * *.”

Applying such test, we find the evidence sufficient to corroborate the testimony of the accomplice witness Keaton.

The judgment is affirmed.

MORRISON, Judge

(concurring).

The fact that appellant left the motel where he had been staying for a week immediately after being informed that the police had been there investigating him is sufficient in my judgment to show that he was fleeing.

It is for that reason that I concur in the affirmance of this conviction.


author: WOODLEY, Presiding Judge.

text:
    Floyd Collins GREEN, Appellant, v. The STATE of Texas, Appellee.
    No. 41017.
    Court of Criminal Appeals of Texas.
    Feb. 14, 1968.

      Jones, Rittenberry & Moss by, Charles E. Moss, Amarillo, for appellant.
    Gene Compton, Dist. Atty., Bob D. Slough, Asst. Dist. Atty., Amarillo, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

This is a companion case to that of Bird v. State, 423 S.W.2d 919, this day decided, appellant having been tried for the burglary of the Cole Lumber Company building after he had testified as a witness for Bird.

The jury having found appellant guilty and the prior conviction alleged for enhancement having been proved, the court assessed his punishment at life.

Appellant’s grounds of error relate to the admissibility of appellant’s testimony at the Bird trial and the sufficiency of the evidence.

Appellant did not testify as a witness in his own behalf, nor did he call either of his co-indictees as witnesses.

The testimony of the accomplice witness Keaton did not materially differ from his testimony in Bird’s trial.

In addition to the evidence offered by the state at Bird’s trial, the state produced the testimony of the manager of Elks Motel that Bird, Mclntire and Green, upon learning that the police had been to the apartment and inquired about Joseph Bird, left in a hurry in a Blue Ford Mustang.

Also, the shipping weight of the safe was shown to be 300 pounds.

We find the evidence sufficient to corroborate the testimony of the accomplice witness and to sustain the jury’s verdict. See Bird v. State, supra, and authorities cited.

Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, cited by appellant, does not support his contention that the court erred in admitting in evidence his testimony at the trial of his co-indictee. To the contrary, the Supreme Court said in Miranda:

“Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.”

The record clearly reflects that appellant’s testimony at Bird’s trial was freely given in open court after he had been called as a defense witness (now permissible under the Texas Statute and the holding of the Supreme Court of the United States in Washington v. Texas, 385 U.S. 812, 87 S.Ct. 123, 17 L.Ed.2d 54) and had been advised by the trial court that he did not have to testify at all and had stated that he wished to testify.

The judgment is affirmed.


text:
    Ernest Rufus FULLER, Appellant, v. The STATE of Texas, Appellee.
    No. 40973.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1968.

      Grady Hight, Fort Worth, (on appeal) for appellant.
    Frank Coffey, Dist. Atty., Truman Power and Roland H. Hill, Jr., Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is Murder with Malice; the punishment assessed by the court after a verdict of guilty by the jury, ten (10) years confinement in the Texas Department of Corrections.

The indictment charged the appellant with shooting and killing his wife on March 27, 1954. Appellant’s trial commenced on December 13, 1966. The record reflects that on December 15, 1954, in a separate sanity hearing, a jury determined that appellant was insane at that time but was sane at the time of the commission of the offense. It appears from appellant’s own testimony that he was committed to the Rusk State Hospital and was restored at a hearing before a jury the day before his trial on the merits.

Initially, appellant urges that the trial court fundamentally erred in failing to charge the jury on the defense of appellant’s insanity at the time of the commission of the offense.

Every person is presumed to be sane (in absence of an unvacated judgment of insanity) and to have sufficient judgment and reason to be responsible for his acts until the contrary is established. It is by reason of this presumption that the law casts upon one relying on insanity as a defense to a crime the burden of establishing by a preponderance of the evidence that his intellect was so disordered that he did not know the nature and quality of the act he was doing, or if he did know that he was unable to distinguish between the right and wrong as to the particular act charged. Wenck v. State, 156 Tex.Cr.R. 50, 238 S.W.2d 793; Ross v. State, 153 Tex.Cr.R. 312, 220 S.W.2d 137; Ex parte McKenzie, 116 Tex.Cr.R. 144, 28 S.W.2d 133; McCaine v. State, Tex.Cr.App., 211 S.W.2d 190; Simpson v. State, 163 Tex.Cr.R. 385, 291 S.W.2d 341; Freeman v. State, 166 Tex.Cr.R. 626, 317 S.W.2d 726.

Therefore, mere mental deficiency or derangement, though it may constitute a form of insanity known to and recognized by medical science, does not excuse one for crime. McGee v. State, 155 Tex.Cr.R. 639, 238 S.W.2d 707; Ross v. State, supra. See McCune v. State, 156 Tex.Cr.R. 207, 240 S.W.2d 305 (mere feeble-mindedness short of legal insanity is not a defense to crime) ; Martinez v. State, 169 Tex.Cr.R. 229, 333 S.W.2d 370.

Since the issue of insanity at the time of the commission of the offense is primarily a defensive one, it ordinarily should be raised during the course of the trial. If such issue is properly raised by competent evidence, the court should charge thereon, Article 46.02, Sec. 2(c) (1), Vernon’s Ann.C.C.P.; Berry v. State, 58 Tex.Cr.R. 291, 125 S.W. 580, and under such circumstances reversal will follow if the court fails to respond to a timely presented written objection or requested charge. See Stoner v. State, 100 Tex.Cr.R. 16, 271 S.W. 616.

If, however, the issue of insanity at the time of the offense is not raised by the evidence, the trial court does not err in failing to instruct the jury upon the law of insanity as a defense. Morris v. State, Tex.Cr.App., 382 S.W.2d 259; Williams v. State, 170 Tex.Cr.R. 595, 343 S.W.2d 263; Cook v. State, 71 Tex.Cr.R. 532, 160 S.W. 465; Leeper v. State, 29 Tex.App. 63, 14 S.W. 398.

It is noted that the rales of evidence known to the common law as to the proof of insanity are to be observed in all trials where the issue is raised. Article 35, Vernon’s Ann.P.C.

Therefore, insanity cannot be proved by general reputation. Article 35, supra, Note 5. Further, mere proof that an accused was not bright or was of weak mind does not raise the issue of insanity. Kirby v. State, 49 Tex.Cr.R. 517, 93 S.W. 1030; Coffey v. State, 60 Tex.Cr.R. 73, 131 S.W. 216; Hogue v. State, 65 Tex.Cr.R. 539, 146 S.W. 905; Craven v. State, 93 Tex.Cr.R. 328, 247 S.W. 515; Banks v. State, 133 Tex.Cr.R. 541, 112 S.W.2d 745.

In a number of cases this Court' has held that the evidence was insufficient to raise the defense of insanity and that the trial court did not err in refusing to charge thereon over the timely presented objection or special requested charge of the defendant. Salter v. State, 159 Tex.Cr.R. 482, 264 S.W.2d 719 (habitual drunkard and drinking); Lyles v. State, 91 Tex.Cr.R. 400, 239 S.W. 616 (habitual user of morphine); Powell v. State, 37 Tex. 348 (low intellect); Mitchell v. State, 52 Tex.Cr.R. 37, 106 S.W. 124 (congenital mental incapacity). See also Yeager v. State, 109 Tex.Cr.R. 213, 3 S.W.2d 808; Steele v. State, 130 Tex.Cr.R. 198, 93 S.W.2d 150.

In the case at bar appellant offered no medical testimony, and only he and his brother testified as defense witnesses. While there was testimony as to appellant’s medical discharge from the military service due to some undisclosed “mental illness * * * from * * * nerves,” his “blackouts,” and a lengthy confinement in Rusk State Hospital beginning almost 9 months after the alleged offense, as well as to his restoration the day before the trial, neither appellant nor his brother testified that he was insane or of unsound mind on the date of the offense charged, or that at such time he was not capable of understanding right from wrong.

It is obvious that the trial judge did not consider the evidence sufficient to charge the jury on the issue. In fact in a qualification to one of appellant’s bills of exception the trial judge so certifies.

Article 46.02, Sec. 2(c), supra, provides in part:

“When the issue of insanity as of the time of the alleged offense is tried, the following rules shall apply:
“(1) The issue of insanity as of the time of the alleged offense shall be submitted only if supported by competent evidence tending to show that defendant was insane as of the time of the alleged offense.” (Emphasis Supplied)

If it be appellant’s contention that there was competent evidence raising the issue of insanity as a defense, then it was incumbent upon him to timely object to the court’s charge or present to the court a special requested charge as required by Articles 36.14 and 36.15, V.A.C.C.P. This he failed to do, so in absence of a showing of fundamental error, this ground of error is not before us for review.

We observe that this complaint as to the trial judge’s action was not registered until this ground of error was assigned in the appellate brief filed in the trial court by court appointed counsel on appeal.

We have ^further concluded that the failure of appellant’s court appointed counsel to object to the court’s charge or to request a charge on the issue of insanity did not deprive him of the effective assistance of counsel.

Appellant does not complain on appeal that his trial counsel was ineffective because he did not plead insanity as a defense, nor that he failed to present available and competent testimony raising the defense of insanity. His narrowly presented contention rests solely on trial counsel’s failure to request a charge on the issue of insanity at the time of the commission of the alleged offense as shown by the evidence presented in the case.

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 Caraway v. State, Tex.Cr.App., 417 S.W.2d 159; Ex parte Larkin, Tex.Cr.App., 420 S.W.2d 958.

In Williams v. Beto, 354 F.2d 698, the Fifth Circuit Court of Appeals 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.”

In Caraway v. State, supra, this Court further remarked:

“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.”

In light of appellant’s ground of error as. framed, the evidence before us, including a showing that subsequently to the offense charged the appellant was found sane at the time of the commission of the offense by a jury, we overrule appellant’s ground of error that he was deprived of effective assistance of counsel by the failure to request a charge on the defense of insanity. Even if such a requested charge had been presented, we conclude that the trial court, under the record, would not have erred in refusing the same. Williams v. State, 170 Tex.Cr.R. 595, 343 S.W.2d 263; Morris v. State, Tex.Cr.App., 382 S.W.2d 259.

Appellant finally asserts as a ground for reversal that the trial court erred in refusing to permit appellant’s brother to expound his opinion as to the mental condition of the appellant at or about the time of the killing of appellant’s wife.

The action of the trial court complained of is reflected in the transcription of the court reporter’s notes as follows:

“Q. I will ask you prior to March 27, 1954, when was the last time you saw Ernest, prior to that date, if you can recall?
“A. I believe it was about a week before, if I’m not mistaken.
“Q. Could you tell the jury, if you can recall, what his mental condition was, his outlook, his actions along in those days?
“A. It seemed that he was—
“MR. HILL: Just a minute. If it please the Court, we would like to object to that question. It is vague and indefinite. The skope (sic) is too broad for this man to understand the question. We feel it is also irrelevant and immaterial.
BY MR. MILLER:
“Q. I will ask you, after March 27, 1954, when was the next time you saw Ernest?
“A. About a week.
“Q. Where was he when you saw him at that time?
“A. In the County Jail.
“Q. Here in Fort Worth?
“A. Yes, sir.
“Q. Would you tell the jury on that particular occasion, your first meeting, what his condition was; how he acted and how he looked to you ?
“MR. HILL: Same objection, if it please the Court.
“THE COURT: I will permit him to answer the last part of the question as to how he looked, but what his condition was—
BY MR. MILLER:
“Q. How did he look?
“A. He looked as though he was in a stupor — blank. ‘Didn’t recognize or nothing.”

It is observed that the court made only one ruling permitting the witness to relate how the appellant looked, and the remainder of his ruling was interrupted with continued interrogation by appellant’s counsel. No objection to the court’s action was taken, and there is no showing in the record that appellant’s brother saw and observed him on the date of the alleged offense.

It is well established in Texas that evidence of the state of mind of a defendant, both before and after the act charged, is admissible. Webb v. State, 5 Tex.App. 596; Warren v. State, 9 Tex.App. 619; Cannon v. State, 41 Tex.Cr.R. 467, 56 S.W. 351; Lane v. State, 59 Tex.Cr.R. 595, 129 S.W. 353.

It is also well settled that a properly qualified nonexpert witness may express an opinion whether the accused knows right from wrong. Kindle v. State, 162 Tex.Cr.R. 395, 285 S.W.2d 740; Stout v. State, 142 Tex.Cr.R. 537, 155 S.W.2d 374; Wenck v. State, supra.

Further, it is error to exclude opinion of a nonexpert witness as to the sanity of the defendant, where such witness has first stated the facts on which his opinion is based, and it appears that his opinion will be justified by his opportunities for observing the conduct of the defendant. 2 McCormick & Ray, Texas Law of Evidence 253, Sec. 1421, 2nd Ed.; Thomas v. State, 40 Tex. 60; Holcomb v. State, 41 Tex. 125; McClackey v. State, 5 Tex.App. 320; Webb v. State, supra; Carr v. State, 24 Tex.App. 562, 7 S.W. 328. Nonexpert witnesses testifying to the insanity of the accused must state the facts upon which that conclusion is based so that the jury may have the benefit of those facts in weighing the testimony of the witnesses. Ross v. State, supra.

Nonexpert witnesses, however, are confined to their opinions at the time of their observations of the accused person and cannot be allowed to project their opinion as to the mental condition of such accused at a future time. Ross v. State, supra.

In Ross v. State, supra, this Court said:

“The rule seems to be well established that a nonexpert witness may delineate his observation of an accused, his attitude, both mental and physical, as compared to his previous attitude, etc., and draw his general conclusion or opinion therefrom, but nowhere have we been able to find any opinion that would allow such nonexpert to say what such opinion would be at a future time such as at the commission of the offense, if such be at a different time from his observation. To allow such an opinion would invade the realm of experts who, from their knowledge, study, and long experience, could therefrom fix a prognosis of such diseased condition of the mind and prophesy its future probable outcome.”

In view of the authorities cited, the record before us, the form of questions asked, the single ruling of the court, we hold the trial court did not prevent appellant’s brother from testifying as to the mental status of the appellant at or about the time of the killing.

Finding no reversible error, the judgment is affirmed.

      . “Blackout” was a term utilized by appellant’s attorney. It did not connote lack of physical mobility or unconsciousness. The evidence reflects that immediately after the shooting appellant was seen driving his car. walking, scuffling with the police, and making tne admission to a neighbor that he had just killed his wife.

      . Insanity as a defense is not to be confused with the issue of present insanity (insanity at the time of the trial) as was before the court in Pate v. Robinson, 383 U.S. 375, 15 L.Ed.2d 815, 86 S.Ct. 836.

      . There is no claim that appellant’s court appointed trial counsel knew of a psychiatrist at Rusk State Hospital or anywhere else or of any other witness who would have testified that appellant was legally insane on March 27, 1954, and that he failed to call such witness or make the proper investigation in connection therewith.


text:
    Phillip DEAL, Jr. and Herman Savage, Appellants, v. The STATE of Texas, Appellee.
    No. 41065.
    Court of Criminal Appeals of Texas.
    Feb. 14, 1968.

      Paxson & Santiesteban, Wellington Y. Chew, El Paso, for appellants.
    Jack N. Fant, County Atty., Enrique H. Pena, Asst. Dist. Atty., El Paso, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

Appellants were convicted in separate trials on October 31, 1966, in the Corporation Court No. 2 of the City of El Paso for the offense of interfering with an officer in violation of Section 15 — 31, Chapter 15 of the City Code of the City of El Paso. Each appellant was fined the sum of $200.

From the judgments entered in the said Corporation Court each appellant prosecuted an appeal to the County Court at Law No. 1 of El Paso County, Texas.

In the said County Court at Law No. 1 each appellant filed an identical motion to dismiss his appeal on the ground that the judgment entered in his case in the said Corporation Court was void for failure to comply with Articles 42.15 and 45.50, Vernon’s Ann.C.C.P.

Omitting the formal parts, the judgment entered in each case in the Corporation Court reads as follows:

“This case was called for trial on this the 31st day of October, 1966, and both parties announced ready for trial. The defendant plead nolo contendere to the accusation in the complaint and waived a trial by jury. The Court, having heard the evidence, is of the opinion that the defendant is guilty as charged. It is therefore ordered that the State of Texas, for the use and benefit of the City of El Paso, have and recover of the defendant, the sum of $200.00, and in default of payment, that the defendant be committed to the custody of the Chief of Police, City of El Paso, until said fine is paid, /s/ Sam W. Callan, Judge.”

The Hon. George Rodriguez, Judge of the said County Court at Law No. 1, overruled the motion of each appellant to dismiss his appeal. Thereafter appellants announced ready in their respective cases and a trial de novo was had in each cause. See Articles 44.17 and 45.10, Vernon’s Ann. C.C.P. Each appellant was fined $101, and it is from the judgment and sentence entered in each cause by the said County Court at Law that this appeal is prosecuted.

On appeal to this Court these two causes were consolidated. Four grounds of error are asserted by the appellants and all relate to Judge Rodriguez’s refusal to grant the said motions to dismiss the appeals from the Corporation Court.

In contending the Corporation Court judgments do not meet the requirements of Articles 42.15 and 45.50, supra, the appellants advance the claim that such judgments do not appear to levy a fine, do not assess court costs, do not provide for execution to issue against the property of each appellant for the amount of the fine and costs, and do not state that a capias should issue commanding the Sheriff to arrest each appellant. In support of such claim or claims the appellants cite Ex parte Leachman, 150 Tex.Cr.R. 145, 199 S.W.2d 661 and Ex parte Barstow, 169 Tex.Cr.R. 28, 331 S.W.2d 937.

The judgments clearly reflect that a fine was imposed, and appellants obviously overlook the provisions of Article 45.07, Vernon’s Ann.C.C.P., that no court costs can be collected by Corporation Courts. Further, Article 45.06, Vernon’s Ann.C.C. P., provides that the governing body of each incorporated city, town or village shall by ordinance prescribe the method, not inconsistent with State law, of enforcing the collection of fines in Corporation Court by execution against the property of the defendant or by imprisonment of the defendant. A reading of the judgments clearly reflects that appellants were present, and in absence of a showing to the contrary, no necessity exists for the judgments to have required that a capias issue for the arrest of the appellants. Ex parte Leachman, supra, and Ex parte Barstow, supra, are clearly distinguishable on the facts and forms of the judgments entered.

Further, it should be remembered that this is not a collateral attack upon Corporation Court judgments which have become final and by which the appellants are presently restrained.

Be all of that as it may, we have carefully examined the judgments in question and find them sufficient to confer appellate jurisdiction on the said County Court at Law for the purpose of the trials de novo. By giving notice of appeal the appellants caused the Corporation Court judgments to be deprived of any finality, and they have been given, by virtue of their voluntary action, the trials de novo they requested. Other than stated, they do not complain of any action taken during the trials de novo.

The trial judge did not err in refusing to grant the motions to dismiss the appeals.

The judgments are affirmed.


text:
    Shenandoah J. BRIDGES, Appellant, v. The STATE of Texas, Appellee.
    Nos. 41034-41037.
    Court of Criminal Appeals of Texas.
    Jan. 24, 1968.

      No Attorney on Appeal, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   ONION, Judge.

OPINION

These four cases are consolidated for the purpose of appeal. Speeding is the offense in each case; the punishment is a fine of $20 for each offense.

Appellant’s convictions resulted from trials de novo in the County Criminal Court at Law No. 1 of Harris County, Texas, after appeals from convictions in the Corporation Court of the City of Houston.

Article 4.03, Vernon’s Ann.C.C.P. reads as follows:

“The Court of Criminal Appeals shall have appellate jurisdiction coextensive with the limits of the State in all criminal cases. This Article shall not be so construed as to embrace any case which has been appealed from any inferior court to the county court, the county criminal court, or county court at law, in which the fine imposed by the county court, the county criminal court or county court at law shall not exceed one hundred dollars.”

Since these are appeals from causes originating in the Corporation Court and the fine assessed at the trial de novo in each case does not exceed $100, this Court is without authority to enter any order other than to dismiss the appeals. Taylor v. State, Tex.Cr.App., 396 S.W.2d 893; Butler v. State, Tex.Cr.App., 363 S.W.2d 469; Hoover v. State, Tex.Cr.App., 355 S.W.2d 527; Trull v. State, 169 Tex.Cr.R. 357, 334 S.W.2d 180.

The appeal in each case is dismissed.


author: BATEMAN, Justice.

text:
    McALLEN STATE BANK, Appellant, v. TEXAS BANK AND TRUST COMPANY, Trustee, Appellee.
    No. 17003.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 29, 1967.
    Rehearing Denied Feb. 2, 1968.

      Wilson Herndon, of Strasburger, Price, Kelton, Miller, Martin & Unis, Dallas, D. F. Martinak and Ralph L. Alexander, of Kelley, Looney, McLean & Littleton, Edinburgh, for appellant.
    Jay S. Fichtner, of Berman & Fichtner, Dallas, for appellee.
   BATEMAN, Justice.

Each party to this appeal claims the proceeds of a policy of insurance on the life of R. B. Welch, Jr. The appellant claims that the policy was pledged to it as collateral security to Welch’s indebtedness to it. Appellee is the trustee of an inter vivos trust of which Welch’s wife and children are the beneficiaries. At the end of a non jury trial, the court awarded the money to appellee. We affirm.

Facts

The note held by appellant is dated September 24, 1963, in the principal sum of $10,000, executed by Welch and payable to appellant. In the lower left corner of the note, opposite the printed word “Collateral,” appear the typewritten words “Renewal Note # 41035 (Financial Statement & Death Benefit Life Insurance).” This note had been given in renewal of Welch’s prior indebtedness to the bank, and in connection with it, as well as the previous notes of the series, Welch agreed orally to furnish the bank a policy of insurance on his life as security. The details of the insurance were not agreed upon, except that it was to be a term policy. In each of the first two promissory notes there was a statement that the maker “pledged” as security therefor “Financial Statement and Death Benefit Life Insurance.” There was a provision in the third and final note giving the bank or other holder the right “to sell at any time thereafter any collateral pledged as security hereto, etc.”

In August, 1964 Welch applied for the policy, naming appellant as beneficiary, and instructed the agent to send it directly to appellant, which was done. In the policy, under the heading of “OWNERSHIP,” the following appears:

‘‘Control of Policy — You [Welch] are the owner of this policy unless someone else is designated by endorsement. All of the insured’s rights belong to the owner.
“The owner may change the beneficiary at any time by filing an acceptable request. When we receive the request the change will take effect the date it was signed, subject to any action taken by us before receipt.
“Assignment — The owner may assign this policy. We will not be bound by an assignment unless duplicate signed forms are filed with us. The rights of the owner and beneficiary shall then be subject to the rights of the assignee. We assume no responsibility for the validity of an assignment.”

No express assignment of the policy was made. On January 18, 1965 Welch executed an indenture of trust to Republic National Bank of Dallas as trustee, whereby he placed in trust several policies upon his life, including the one above described. On September 3, 1965 Welch executed and sent to the insurance company a form changing the beneficiary of the policy in question from appellant to “Republic National Bank of Dallas, Texas Under Indenture of Trust Agreement Dated January 18, 1965,” but appellant was not informed thereof. After filing this suit on the policy, Republic National Bank of Dallas resigned and appellee was substituted for it as trustee and as plaintiff. Appellant was made a defendant and it filed its answer claiming the proceeds of the policy as pledgee thereof. The insurance company paid the proceeds of the policy into the registry of the court and was dismissed, leaving only appellant and appellee as the contending parties.

Other facts found by the trial court, in addition to those recited above, were that the life insurance policy was not required for securing the credit on the note in question and that appellant paid no part of the premiums for the policy; that appellant did not rely on Welch’s promise to provide the policy when it accepted his note and granted him credit; that appellant had knowledge of the contents of the policy including that portion providing that Welch was “the owner of this policy unless someone else is designated by endorsement. All of the insured’s rights belong to the owner. The owner may change the beneficiary at any time by filing an acceptable request”; that appellant knowingly accepted the policy subject to and in subordination to the rights of Welch to change the beneficiary without notice to appellant; that appellant gave nothing in value for the policy and suffered no detriment to obtain same; that on September 9, 1965 the insurer acted on Welch’s application and changed the beneficiary as requested; that Welch died on September 13, 1965, at which time, and at all times since, the policy was and has been in the physical possession of appellant; that at the time of Welch’s death the promissory note dated September 24, 1963 was past due and wholly unpaid.

The trial court’s conclusions of law were consistent with the facts found and need not be related in detail here.

Opinion

Appellant attacks the foregoing findings of fact and conclusions of law under seven points of error on appeal, all raising different aspects of what is conceded to be the ultimate issue of the appeal; viz., whether appellant’s rights under the policy could be and were effectually destroyed by the unilateral change of the beneficiary by Mr. Welch. We overrule all of these points.

The basic fallacy of appellant’s position lies in its assumption that its possession of the policy would make a change of beneficiary impossible without its consent and would entitle it to the proceeds regardless of the terms and provisions of the policy. The court found, upon sufficient evidence, that appellant knew of the contents of the policy, including the portion reserving to Welch the unqualified right to change the beneficiary from appellant to whomever he desired and was charged with knowledge that this could be done without disturbing its possession of the policy. If this was not satisfactory to appellant, or contrary to Welch’s agreement, it could then have insisted upon an assignment of the policy, or the proceeds thereof, with a duplicate thereof filed with the insurance company, or a written waiver of Welch’s retained right to change the beneficiary so long as his note remained unpaid. But it did neither of these things; it accepted the policy as tendered to it. Appellant does not charge that it was induced to do so by fraud or deception, nor that on equitable principles the policy should be reformed. Indeed, it could not very well do so for there is nothing in the record to indicate that Welch ever agreed or intended to assign the policy or its proceeds, or to waive his right to change the beneficiary. We know of no authority directly in point, but find an interesting discussion of some of these principles in the somewhat similar case of Spiro State Bank v. Bankers’ Nat. Life Ins. Co., 69 F.2d 185 (Cir.Ct., 8th Cir., Ark. 1934).

Both parties argue at length the question of whether the policy was actually pledged to appellant, as that term is known to the law; i.e., whether the essential elements of a pledge, as set forth in First Nat. Bank of Wichita Falls v. McCamey, 130 Tex. 148, 105 S.W.2d 879, 881(1937), existed. We need not be concerned with this argument for, assuming arguendo that the policy was pledged, appellant must be said to have taken it as it was written, including the unrestricted right of the insured to change the beneficiary without surrending the policy. The only vested right which appellant can be said to have acquired in the policy was to demand payment of the proceeds, to the extent of its claim against Welch, provided it mas still the beneficiary of the policy at the time of Welch’s death.

Appellant argues that Welch was estopped to change the beneficiary, and thus destroy its security for its loan, but we find nothing in the record to indicate that Welch did or said anything, or that anything was contained in the policy, to mislead appellant in any way or induce it to change its position, or that appellant knew less of the contents of the policy than Welch did. 22 Tex.Jur.2d, Estoppel, § 4, p. 664, and § 8, p. 669, where it is said, “The basis of estoppel is deception, and in its absence there can be no estoppel in pais.” We find no evidence of deception in this record. Therefore, we hold that the doctrine of estoppel is inapplicable.

We think the judgment was correct and it is, therefore,

Affirmed.