author: CLAUDE WILLIAMS, Chief Justice.

text:
    Jack WIGLEY and Jennie Wigley, Appellants, v. Patricia WIGLEY and David Wigley, Appellees.
    No. 18814.
    Court of Civil Appeals of Texas, Dallas.
    Feb. 26, 1976.
    Rehearing Denied March 18, 1976.
    Mark Delk, Dallas, for appellants.
    Frank W. Stenger, Dallas Legal Services, Dallas, for appellees.
   CLAUDE WILLIAMS, Chief Justice.

Jack Wigley and Jennie Wigley appeal from a domestic relations court order appointing the natural mother Patricia Jane Wigley as managing conservator of their grandchildren Patricia Lynn Wigley and Jacqueline Michelle Wigley. However, we do not have jurisdiction of this appeal because appellants have failed to timely file an appeal bond or cash deposit in lieu thereof, as required by Tex.R.Civ.P. 356(a). This rule requires that a bond for cost, or cash deposit in lieu of bond, shall be filed with the clerk within thirty days after the rendition of judgment or order overruling the motion for new trial. The rule is mandatory and jurisdictional, and compliance cannot be waived. Glidden Co. v. Aetna Casualty and Surety Co., 155 Tex. 591, 291 S.W.2d 315 (1956); Flowers v. Muse, 427 S.W.2d 727 (Tex.Civ.App.-San Antonio 1968, writ ref’d); and Abington v. Goss, 408 S.W.2d 317 (Tex.Civ.App. — Dallas 1906, writ ref’d n. r. e.).

Judgment was rendered in this case on May 30, 1975. On June 6, 1975, appellants filed their original motion for new trial. An amended motion for new trial was filed on June 26, 1975. On July 2, 1975, the parties by their attorneys entered into a written stipulation which recited that the court was unable to hear the June 6 motion when presented on June 20 and that the time for hearing the motion would be extended. The agreement provided specifically:

6. It is agreed between the parties that .the time for determining the Motion for New Trial filed and presented by the Petitioners on June 6, 1975, shall be and it is hereby extended to ninety (90) days after such original Motion for New Trial was filed and the decision of the Motion is postponed until August 4, 1975, at 2:00 o’clock P.M., or until some other time convenient to the Court (if the Court is unable to hear the said Petitioners’ Motion for New Trial on August 4, 1975) within the ninety (90) day period from the filing of the said original Motion for New Trial on June 6, 1975. [Emphasis added.]

The court did not hear the motion for new trial on August 4, 1975. On August 14, 1975, Patricia Jane Wigley filed her motion to dismiss the amended motion for new trial, and on September 10, 1975, the court sustained that motion. On October 8, 1975, cash deposit in lieu of appeal bond was filed with the district clerk.

Subdivision 3 of Tex.R.Civ.P. 329b provides that:

All motions and amended motions for new trial must be determined within not exceeding forty-five (45) days after the original or amended motion is filed, unless by one or more successive written agreements of the parties in the case filed with the clerk of the court the decision of the motion is postponed to a day certain specifically set out in any such agreement. Any such day certain shall not be more than ninety (90) days after such original or amended motion is filed.

Subdivision 4 of this rule concludes:

. In the event the decision of the motion is postponed by any written agreement as provided in subdivision 3 of this Rule then any such original or amended motion, if not determined by the court, will be overruled by operation of law ninety (90) days after the same is filed or on the latest day certain agreed upon, whichever occurs first.

Appellants and appellees complied with rule 329b, subd. 3 by entering into a stipulation on July 2 to postpone the date for deciding the original motion for new trial. The stipulation cannot be construed as extending the time ninety days after filing the amended motion on June 26, 1975, because it expressly specifies an extension “within the ninety (90) day period from the filing of the said original Motion for New Trial on June 6,1975.” Although the stipulation may be subject to different constructions, it is not subject to any interpretation that would confer jurisdiction upon this court. The stipulation specifies August 4, 1975, as the time for the decision. If this is the “day certain” required by rule 329b, subd. 3, the deposit made on October 8 was too late. Even if the stipulation can be interpreted to make the ninetieth day from the filing of the original motion on June 6, 1975, the “day certain” required by the rule, that date is September 4, 1975, and consequently, the motion was overruled by operation of law on that date, since no order disposing of the motion had been signed. Accordingly, under this interpretation, the last date for filing an appeal bond would have been Monday, October 6,1975, and the cash deposit in lieu of bond filed on October 8, 1975, was too late.

Since this appeal was not perfected within the time prescribed by the rules, this court does not have jurisdiction.

Appeal dismissed.


source: Caselaw Access Project

author: GUITTARD, Justice.

license: Public Domain

text:
    Barbara Reynolds LOUWIEN, Relator, v. Hon. Greer DOWELL, Respondent.
    No. 21175.
    Court of Civil Appeals of Texas, Dallas.
    Feb. 26, 1976.
    Marvin L. Levin, Levin, Weinberg & Le-vin, Dallas, for appellant.
   GUITTARD, Justice.

Relator has moved for leave to file a petition for writ of mandamus ordering Hon. Greer Dowell, Judge of Domestic Relations Court No. 2 of Dallas County, Texas, to sign and enter a written judgment embodying the terms of an oral judgment pronounced from the bench, and further ordering him to set aside a subsequent order granting a new trial. The motion is overruled.

Relator avers that Judge Dowell orally rendered a judgment from the bench on. September 19,1975, dissolving the marriage of relator and Wilfred Henry Louwien and approving an agreed property settlement. The record shows, however, that the oral judgment was never embodied in a signed written order. After the oral judgment was rendered, respondent Wilfred Henry Louwien employed new counsel and contested relator’s motion for entry of a written judgment. At a hearing on October 20, 1975, Judge Dowell denied relator’s motions, set aside the previous judgment, and granted a new trial on the merits. A written order to this effect was signed on December 23, 1975.

In support of the petition for mandamus relator cites Dunn v. Dunn, 439 S.W.2d 830 (Tex.1969) for the proposition that the pronouncement by the court from the bench is effective as rendition of judgment in settlement of the rights of the parties. We agree that such a pronouncement is a valid judgment so long as it is not set aside. However, the court has power to set aside its judgment so long as the time for filing a motion for new trial has not expired. Tex.R.Civ.P. 306a provides:

In determining the periods within which the various steps of an appeal must be taken, the date of rendition of a judgment or order shall be deemed to be the date upon which the written draft thereof was signed by the trial judge as stated therein.

Under this rule, the Supreme Court has held that the date of signing of the judgment or order is the date from which the time to file a motion for new trial or to appeal is measured. Within thirty days after that date, the judge may on his own motion set aside the judgment and grant a new trial. Ex parte Godeke, 163 Tex. 387, 355 S.W.2d 701 (1962). A fortiori, he may grant a new trial or otherwise change his judgment at any time if no written judgment has been signed. Canales v. Salinas, 288 S.W.2d 207, 209 (Tex.Civ.App. — San Antonio 1956, writ dism’d). Consequently, Judge Dowell’s order setting aside his previous oral judgment was a matter of judicial discretion which cannot be controlled by mandamus.

Leave to file the petition for mandamus is denied.


author: McDONALD, Chief Justice.

text:
    James E. LEE, Appellant, v. James E. THOMAS, Appellee.
    No. 5534.
    Court of Civil Appeals of Texas, Waco.
    Feb. 26, 1976.
    Rehearing Denied March 31, 1976.

      Everett & Law, Jim Law, Dallas, for appellant.
    Blassingame, Osburn & Dominguez, Robert H. Osburn, Dallas, for appellee.
   OPINION

McDONALD, Chief Justice.

Proceeding on bill of review for relief from default judgment. Appellant Lee appeals from judgment of the trial court granting a bill of review in Cause 73-5320-L; setting such default judgment aside; granting appellee Thomas a new trial; and rendering judgment in such case that appellant Lee take nothing against appellee Thomas.

On June 13,1973 Thomas shot Lee with a pistol. Shortly thereafter Thomas was arrested and lodged in the Dallas County jail. On July 20,1973 Lee sued Thomas in Cause 73-5320-L for damages for assault. On July 23, 1973 Thomas was served with citation in the Dallas County jail. On August 13, 1973, answer date in Cause 73-5320-L, Thomas had filed no answer. On August 31, 1973 the trial court rendered default judgment against Thomas for $15,000. damage and $15,000. exemplary damage; such judgment being signed on September 25, 1973.

Lee’s attorney, pursuant to Rule 239 TRCP certified Thomas’ last known mailing address was 308 Winslett Drive, Dallas, Texas 75214, to which address the District Clerk mailed a copy of the judgment, when in fact Thomas was still in Dallas County jail.

On October 25, 1973 Thomas was found insane in the court having jurisdiction of his criminal case, and sent to Rusk State Hospital where he died June 30, 1975.

On November 8, 1974 this bill of review was filed by Thomas. On July 25,1975 trial was held before the court, which rendered judgment granting Thomas bill of review, and decreeing Lee take nothing by his original suit.

The trial court filed Findings of Fact and Conclusions of Law, pertinent of which are summarized:

Findings of Fact

IV.

On June 13, 1973 Thomas believed Lee had assaulted him and taken $250. from him.

V.

On June 13, 1973 Thomas shot Lee.

VI.

Thomas was arrested and confined in the Dallas County jail on June 13,1973 as result of the shooting.

VII.

On July 23,1973 Thomas was served with process in Cause 73-5320-L styled James Lee v. James Thomas.

VIII.

James Grigson, MD conducted an interview and mental examination of Thomas in the Dallas County jail on August 9, 1973 at request of Dallas County District Attorney. The examination consisted of: 1) General appearance and behavior; 2) Production of thought; 3) Affect and mood; 4) Content of thought; 5) Sensorium.

IX.

On August 9, 1973 Thomas had brain damage, rambled rather than being goal directed, and expressed a chronic brain syndrome with paranoid delusions; all contributed to by hardening of the arteries.

X.

On August 9, 1973 Thomas’ emotional response consisted of labile affect, meaning he would cry spontaneously and inappropriately; he had no control over his emotional responses; and he had impaired reasoning and judgment.

XI.

On June 13, 1973, the date of the shooting, Thomas suffered from a paranoid delusional system and chronic brain syndrome resulting from hardening of the arteries.

XII.

On June 13, 1973 Thomas was insane.

XIII.

On June 13, 1973 Thomas did not know the difference between right and wrong, and was not able to manage his affairs.

XIV.

On July 20, 1973 (date suit 73-5320-L was filed) and on July 23,1973 (date service had) Thomas was insane and did not know the difference between right and wrong and was not able to manage his affairs.

XV.

On August 9, 1973 Thomas was insane.

XVI.

On June 13, July 20, August 9, August 31, and September 25, 1973 and all dates between, Thomas was incapable of managing his business and financial affairs because of impairment in his reasoning and judgment resulting from chronic brain syndrome and .paranoid delusions.

XVII.

Thomas was in fear of Lee on June 13, 1973.

XVIII.

On August 14,1973 Richard Banks, attorney was appointed to represent Thomas in the criminal case resulting from the June 13, 1973. shooting.

XIX.

Banks is an expert in criminal law.

XX.

On October 25, 1973 a jury determined Thomas insane and he was committed to the Rusk State Hospital.

XXI.

Banks asserted, based on statements made by Thomas, that Thomas had a meritorious defense to his criminal case, such defense being self defense.

XXII.

Thomas died June 30,1975 while confined in Rusk State Hospital.

XXIII.

On August 31, 1973 Lee took $30,000. default judgment against Thomas, which was entered September 25,1973. The hearing was not reported by a court reporter, and no statement of facts were made.

XXIV.

Thomas was not appointed a guardian to represent him in Cause 73-5320 — L prior to judgment.

XXVI.

On December 28, 1973 Lee garnished funds from the Grove State Bank in Dallas to be applied on the $30,000. judgment.

XXIX.

In June 1974, Herb Sucherman was appointed Guardian of the person and estate of Thomas.

XXX.

In November 1974, Sucherman filed the instant Bill of Review to set aside the judgment in Cause 73-5320-L on behalf of Thomas.

XXXII.

The judgment in Cause 73-5320-L was set aside because the requirements of a Bill of Review were met.

XXXIII.

All parties announced ready in open court for a new trial of Cause 73-5320-L.

XXXIV.

The court heard all evidence, reviewed the pleadings and listened to argument of counsel and found the law and facts to be with Thomas and against Lee, and judgment was ordered plaintiff Lee take nothing in Cause 73-5320-L.

Conclusion of Law

VI.

Thomas was insane, incompetent, did not know right from wrong, did not know the nature and consequences of his actions, was not able to properly conduct his business affairs, and was not coherent enough to deal in any business on June 13, 1973, or any time thereafter.

IX.

. Thomas has the meritorious defense of self defense, to Lee’s suit against him in Cause 73-5320-L.

X.

Thomas was prevented from asserting his meritorious defense because he was insane at the time Cause 73-5320-L was filed, July 20, 1973; at time notice of the suit was served on him, July 23, 1973; at the time Dr. Grigson examined him, August 9, 1973; at the time Dr. Grigson notified 203rd District Court by letter that Thomas was insane, August 15, 1973; at time of trial August 31, 1973, and at time default judgment was rendered against him, September 25, 1973.

XI.

The service attempted on Thomas violated due process because he was incapable of waiving citation.

XII.

Thomas was prevented from asserting the meritorious defense of self defense because of fault, accident or wrongful act of Lee in that Lee gave no notice to the court on August 31, 1973 or September 25, 1973, of the proceeding in 203rd District Court.

XIII.

No request was made to the court by Lee on August 31, 1973, or September 25, 1973 to appoint a guardian to represent Thomas, as required by Rule 173 TRCP.

XIV.

No guardian was appointed to represent Thomas.

XV.

Lee offered no evidence that Thomas was insane, but did offer evidence of matters in the 203rd District Court.

XVI.

There was no fault or negligence of Thomas in his failure to assert a meritorious, defense because Thomas was insane at the time Cause 73-5320-L was filed, service had, and judgment taken.

XVII.

There was no fault or negligence in failing to assert the meritorious defense by Trudy Thomas because the first actual notice she had that judgment had been taken was by the bank in early 1974, at which time the time had elapsed for filing motion for new trial.

XVIII.

The judgment taken was voidable.

XIX.

Thomas being insane, could not waive service, nor could he waive the court reporter reporting Cause 73-5320-L.

XX.

No answer was filed by Thomas before the default judgment due to the fault,, accident and/or wrongful act of Lee in not offering evidence on the state of Thomas’ insanity.

Appellant Lee appeals on 44 points contending:

1) The trial court erred in granting the Bill of Review because there is no evidence, and insufficient evidence that:
a) Thomas had a meritorious defense to Lee’s cause of action, which
b) He was prevented from presenting because of fraud, accident or wrongful act on Lee’s part, with
c) No negligence on his own part or on the part of his agents;
and such conclusions are against the great weight and preponderance of the evidence.
2) There is no evidence and insufficient evidence to support Fact IV, (that Thomas believed Lee had assaulted him); Fact IX, (that on August 9, 1973 Thomas had brain damage); Fact XII, (that on June 13, 1973 Thomas was insane); Fact XIII, (that on June 13,1973 Thomas did not know the difference in right and wrong); Fact XVII, (that Thomas was in fear of Lee on June 13, 1973); Fact XXI, (that Attorney Banks could assert Thomas had a meritorious defense of self defense); Fact XXXII, (that the requirements of a Bill of Review were met); and such findings are against the great weight and preponderance of the evidence.
3) The trial court erred in its conclusion IX (that Thomas had the meritorious defense of self defense); Conclusion X, (Thomas was prevented from asserting his meritorious defense because he was insane); Conclusion XII, (that Thomas was prevented from asserting his meritorious defense because of fault, accident or wrongful act of Lee); Conclusion XVI, (Thomas was not negligent in failing to assert a meritorious defense because he was insane); Conclusion XVII, (Trudy Thomas was not negligent because the first actual notice she had of the judgment was by the bank in 1974, after time to file motion for new trial); Conclusion XX, (that no answer was filed by Thomas before the default judgment due to fault; accident and/or wrongful act by Lee in not offering evidence of Thomas’ insanity); Conclusion XI, (service on Thomas violated due process); because there is no evidence, and insufficient evidence upon which to make such conclusions, and same are against the great weight and preponderance of the evidence.
4) The trial court erred in failing to conclude as a matter of law that Thomas was barred by laches or estoppel from maintaining his Bill of Review.

The rules for granting a bill of review are set out in Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996; Hanks v. Rosser, Tex., 378 S.W.2d 31, and Gracey v. West, Tex., 422 S.W.2d 913. Such cases hold that before a litigant can successfully set aside a final judgment he must allege and prove:

1) A meritorious defense to the cause of action alleged to support the judgment;
2) Which he was prevented from making by fraud, accident or wrongful act of the opposite party;
3) Unmixed with any fault or negligence on his part.

Meritorious defense: Thomas alleged he had a meritorious defense to Lee’s cause of action. The trial court found Thomas believed Lee had assaulted him; that Thomas was in fear of Lee on June 13, 1973; that Attorney Banks, an expert in criminal law (who was appointed to represent Thomas in the criminal case) testified Thomas had the meritorious defense of self defense; that Thomas had the meritorious defense of self defense; and that Thomas was insane on June 13, 1973, and at all times thereafter. There is ample evidence to support such findings, and such are not against the great weight and preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W .2d 660.

One acting in self defense at the time of inflicting injuries on his assailant is not liable for damages therefor. Koons v. Rook, Com.Appls., 295 S.W. 592; and an insane person is not liable for exemplary damages for inflicting injury on another. Eidinoff v. Andress, CCA (El Paso) NRE, 321 S.W .2d 368; Ross v. York, CCA (El Paso) Er.Dismd., 233 S.W.2d 347.

Thomas had the meritorious defense of insanity as to the $15,000. exemplary damages, and the meritorious defense of self defense to Lee’s entire cause of action.

Was Thomas prevented from making such defenses by fraud, accident or wrongful act of Lee?

Lee filed his suit against Thomas on July 20, 1973, and caused Thomas to be served with process in the County jail on-July 23,1973. Thus Lee knew that Thomas was in jail. When Thomas filed no answer and the trial court proceeded to hear the case on August 31,1973, Lee did not advise the trial court that Thomas was in jail. When the trial court signed its judgment on September 25,1973, the District Clerk testified that a copy was mailed to Thomas at 308 Winslett Drive, Dallas, Texas 75214, “the address furnished the court by Lee’s attorney on the certificate provided for by Rule 239a TRCP.” At this time Lee’s attorneys knew Thomas was in the County jail.

Had judgment been mailed to him at that place it is possible Thomas would have filed or caused to be filed a motion for new trial, or proceeded for review of the judgment by writ of error. And while there is no affirmative evidence in the record that Lee or his attorneys knew Thomas was insane, Lee was the prosecuting witness in the assault to murder complaint against Thomas; knew he was in jail; knew he was about 83 years of age; filed civil action against him for the assault, and must have been keeping up with the criminal case. But be that as it may, when Lee’s counsel made the false certificate that Thomas’ last known address was 308 Winslett Drive, Dallas, Texas, this constituted extrinsic fraud which denied Thomas the opportunity to fully litigate, file motion for rehearing, writ of error, or to know of the trial and judgment. South Texas Development Co. v. Martwick, CCA (Waco) NRE, 328 S.W.2d 230; Hammond v. Hammond, CCA (Galveston) Er.Dismd., 210 S.W.2d 829; Alexander v. Hagedorn, supra; Seastrunk v. Kidd, CCA (Waco) NWH, 53 S.W.2d 678, and Dudley v. Lawler, CCA (Waco) NWH, 468 S.W.2d 160.

Was Thomas at fault or negligent? Thomas was insane at all material times. He thus could not be at fault or negligent in such situation, and appellant’s brief so concedes.

All appellant’s points and contentions have been considered, none present reversible error, and all are overruled.

AFFIRMED.


author: BREWSTER, Justice.

text:
    Marion Reese BERRY, Appellant, v. DAIRYLAND COUNTY MUTUAL INSURANCE COMPANY OF TEXAS, Appellee.
    No. 17695.
    Court of Civil Appeals of Texas, Fort Worth.
    Feb. 27, 1976.

      Hill, Branham & Graham, and Frank Hill, Arlington, for appellant.
    Brown, Crowley, Simon & Peebles, and Anne Gardner, Fort Worth, for appellee.
   OPINION

BREWSTER, Justice.

The trial court sustained the defendant’s plea of privilege and the plaintiff has appealed.

The plaintiff, Marion Reese Berry, filed this suit against the defendant, Dairyland County Mutual Insurance Company of Texas, seeking to recover upon the “personal injury protection” coverage sold by defendant to plaintiff in connection with the automobile liability insurance policy that Berry had purchased from the defendant.

Plaintiff had purchased the liability policy from defendant on July 2, 1973. On August 27, 1973, Art. 5.06-3 of the Texas Insurance Code became effective and by its terms the defendant Company provided “Personal Injury Protection” to every automobile liability policyholder upon renewal of his policy unless the insured rejected such coverage in writing.

Before the loss involved here occurred the plaintiff’s policy was renewed and he did not reject such coverage in writing. In addition to that, the evidence shows that each month after August 27, 1973, plaintiff was charged for and he paid $5.00 extra to defendant as a premium for the “personal injury protection” coverage.

After the statute referred to became effective and even though plaintiff each month thereafter paid to defendant the premium for such insurance, no endorsement was ever issued to plaintiff by defendant to evidence the fact that he had this “personal injury protection” coverage.

The defendant does not question the fact that plaintiff had such insurance in force with defendant at the time of the loss.

The defendant also admits that no question is involved on this appeal as to whether the notices and proofs of loss provided for in the policy were given by plaintiff to defendant in the required time. Such questions are not involved on this appeal because defendant did not file a sworn denial as is required by Rule 93(m) in order to raise such questions.

The undisputed evidence at the venue hearing showed that the plaintiff, Berry, sustained an injury on April 25, 1974, while in the process of alighting from his insured automobile. Berry was the named insured in the liability policy issued to him by defendant and the car that he was alighting from when hurt is the same automobile that is described in the liability policy involved as being the insured’s “owned automobile.” On the occasion when injured, Berry had been driving his car and had stopped it and turned off the ignition key. He had phlebitis in his left leg and was favoring it as he twisted in order to get out of the car and as he did so his right knee caught and the cartilage snapped while he was engaged in the act of getting out of the car. In treating the injury his leg was operated on and he was hospitalized causing him to incur an expense of $1,322.45. The injury caused him to lose $1,000.00 in wages also.

The plaintiff sought to maintain venue in Tarrant County under Subd. 23 of Art. 1995, V.A.C.S. The trial court sustained defendant’s plea of privilege on the grounds that the plaintiff had failed to carry his burden of proving at the hearing that the plaintiff had a cause of action against the defendant.

In this connection the defendant contends that plaintiff failed to prove that he had a cause of action against defendant, as he was required by Subd. 23, Art. 1995, V.A. C.S., to prove, in that he failed to prove that plaintiff sustained a loss insured against by reason of having sustained bodily injury caused by accident, “in a motor vehicle accident,” within the meaning of the policy sued on.

We reverse and render.

In plaintiff’s first point of error he contends that the trial court erred in holding that an injury sustained while alighting from a vehicle is not sustained in a motor vehicle accident. In his second and third points of error plaintiff contends that the trial court erred in sustaining defendant’s plea of privilege and in holding that plaintiff had not proved a cause of action.

We sustain those three points of error.

In defendant’s brief it says that the sole question to be determined on this appeal is whether an injury received while alighting from an automobile is a “bodily injury caused by accident, in a motor vehicle accident” within the meaning of the “personal injury protection coverage” afforded by defendant’s policy.

Article 5.06-3 of the Texas Insurance Code is the statute that relates to Personal Injury Protection Coverage that is involved here and it provides in part as follows:

“Personal Injury Protection Coverage (a) No automobile liability insurance policy . shall be delivered or issued for delivery in this state unless personal injury protection coverage is provided therein or supplemental thereto. The coverage provided in this article shall be applicable unless the insured named in the policy rejects the coverage in writing, and the coverage shall be provided in or supplemental to a renewal policy unless it is rejected in writing by the insured named in the policy, (b) ‘Personal injury protection’ consists of provisions of a motor vehicle liability policy which provide for payment to the named insured in the motor vehicle liability policy and members of the insured’s household, any authorized operator or passenger of the named insured’s motor vehicle including a guest occupant, up to an amount of $2,500 for each such person for payment of all reasonable expenses arising from the accident and incurred within three years from the date thereof for necessary medical, surgical, X-ray and dental services, including prosthetic devices, and necessary ambulance, hospital, professional nursing and funeral services, and in the case of an income producer, payment of benefits for loss of income as the result of the accident; . .” (Emphasis ours.)

It will be noted that this statute provides that the Personal Injury Protection will provide the coverage for the named insured, the members of his household, any authorized operator or passenger of the named insured’s car, and any guest occupant. The coverage will pay the reasonable medical expense, not exceeding $2,500, incurred by one of those persons in the treatment of injuries arising from the accident. It will also pay them for loss of income as a result of the accident Nowhere in the statute is it provided that the accident referred to must be a motor vehicle accident. It will also be noted that the statute provides for the same coverage to be afforded to each of the persons referred to above that the statute provides shall be covered by such insurance.

Defendant had a form 243 that it generally issued to insureds who purchased its “Personal Injury Protection Coverage.” The practice was to issue its form 243 as an endorsement to the liability insurance policies held by those insureds who on renewal desired the additional coverage. The evidence does not show whether or not this form had been approved by the Board of Insurance Commissioners.

As stated, the undisputed evidence in this case shows that although plaintiff did purchase such insurance, the defendant never did provide him with a form 243 as an endorsement to his policy.

The form 243 that defendant used to create such endorsements and to evidence the Personal Injury Protection coverage provided for by the statute contained the following provisions:

“In accordance with the provision of Article 5.06-3 of the Insurance Code of Texas and all Acts amendatory or supplementary thereto, the Company will pay:
“(1) the named insured or any member of the insured’s household who sustains bodily injury, caused by accident, in a motor vehicle accident, and
“(2) any other person who sustains bodily injury, caused by accident,
“(a) while occupying the insured motor vehicle, or
“(b) while using such vehicle with the permission of the named insured, or the spouse of the insured if a resident of the same household, for losses incurred by such injured person within three years of the date of such accident for:
“(1) all reasonable and necessary medical expenses incurred for services furnished, and
“(2)(a) if the person sustaining such bodily injury is an income or wage producer at the time of such accident, benefits for loss of income sustained by such person, while living, as a direct and proximate result of such accident, and . . . (Emphasis ours.)

We hold that the undisputed evidence shows that the plaintiff’s loss of income and the medical expenses that he did incur in treating his injuries did result from a bodily injury, caused by an accident, in a motor vehicle accident, within the meaning of the policy sued on.

Article 5.06-3 of the Insurance Code does not provide that the “accident” therein referred to can only be a “motor vehicle accident.” The statute simply says that coverage is afforded to the persons named for the losses referred to “arising from the accident,” or “as the result of the accident.” The statute does not purport to restrict the type of accident in which the injuries from which the loss resulted are sustained to a “motor vehicle accident.”

If the parties intended by adding the words “in a motor vehicle accident” to the endorsement No. 243 to narrow the coverage afforded to the insured to less than that which Art. 5.06-3 provides that the named insured shall have, then that provision of the endorsement would be repugnant to the statute.

In the case of American Nat. Ins. Co. v. Tabor, 111 Tex. 155, 230 S.W. 397 (1921) in considering an analogous set of facts, the court said at page 399: “The parties could not, by contract, put something into the policy which was repugnant to the mandatory statute, and thus destroy a benefit to the insured which the statute was designed to guarantee. Hence the attempted reservation by the insurer of the right to interpose fraud by way of defense to a suit to enforce payment of the policy after it had been issued more than two years was void.”

All that Art. 5.06 — 3 required was that the bodily injury from which the loss results be sustained in an “accident.” If, as was held by the trial court and as is contended by defendant, the effect of the insertion into the endorsement of the words “in a motor vehicle accident” was to make the policy mean that the insured was not covered under the facts of this case, then such addition would be repugnant to the statute and void under the holding of the case just cited.

In the case of Zurich General Accident & Liability Ins. Co. v. Thompson, 47 S.W.2d 663 (Tex.Civ.App., Amarillo, 1932, writ dism.) the Court in speaking of a Workmen’s Compensation Insurance Policy said: “The law supplies the terms such policy should contain.”

That holding is also applicable to the personal injury protection coverage involved here.

Other cases holding that provisions in an insurance policy that are contrary to or repugnant to applicable statutes are void are: American Fidelity & Casualty Co. v. Williams, 34 S.W.2d 396 (Tex.Civ.App., Amarillo, 1930, writ ref.); and American Nat. Ins. Co. v. Ingle, 129 S.W.2d 426 (Tex. Civ.App., Dallas, 1939, affirmed 137 Tex. 189, in 152 S.W.2d 1098).

Parties to an insurance contract are charged with knowledge of the applicable insurance statutes. Southland Life Ins. Co. v. Statler, 139 Tex. 496, 163 S.W.2d 623 (1942).

If the words “in a motor vehicle accident” were not contained in the endorsement No. 243, then no one would contend that there was no coverage afforded the insured because the bodily injury from which the medical expenses incurred by plaintiff and from which his loss of income resulted were unquestionably sustained in an “accident” as that word is used in Art. 5.06-3 of the Texas Insurance Code. See Southern Surety Co. v. Davidson, 280 S.W. 336 (Tex.Civ. App., Fort Worth, 1926 no writ hist.); American Indemnity Co. v. Jamison, 62. S.W .2d 197 (Tex.Civ.App., Texarkana, 1933, no writ hist.); Dorsey v. Fidelity Union Casualty Co., 52 S.W.2d 775 (Tex.Civ.App., Waco, 1932, writ dism.); and Standard Life & Accident Insurance Co. v. Hardee, 330 S.W .2d 544 (Tex.Civ.App., Texarkana, 1959, ref., n. r. e.).

Even if we disregard what we have here-' tofore said as a reason why the plaintiff’s loss was covered in this case, we are convinced that when the policy involved is properly construed giving effect to all language that it contains that plaintiff’s loss is covered by the Personal Injury Protection Coverage afforded by defendant’s policy.

It is settled that in cases where the language of an insurance policy is susceptible of more than one meaning, the policy provisions must be construed in the light of the facts of the case and a contract of. insurance is to be construed liberally in favor of the insured and strictly as against the insurer. Standard Life & Accident Insurance Co. v. Hardee, supra, and Southern Surety Co. v. Davidson, supra.

By the terms of the automobile liability insurance policy that defendant had issued to the plaintiff on July 2, 1973 (Plaintiff’s Exhibits 7 and 12) the defendant agreed to pay on behalf of the insured all sums that the insured became legally obligated to pay as damages because of (A.) bodily injury, etc., and (B.) property damage arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile.

Article 5.06-3 provided in part that no such policy: “. . . covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state unless personal injury protection coverage is provided therein or supplemental thereto.”

Article 5.06-3 provides coverage for all reasonable medical expenses and loss of income incurred by insured arising from or resulting from “the accident”.

The endorsement No. 243 for the first time inserts into the picture the words “motor vehicle accident”. That endorsement also provides that “In accordance with the provision of Article 5.06-3 of the Insurance Code of Texas and all Acts amendatory or supplementary thereto, the Company will pay: (1) the named insured or any member of the insured’s household who sustains bodily injury, caused by accident, in a motor vehicle accident, and (2) any other person who sustains bodily injury, caused by accident, (a) while occupying the insured motor vehicle . . . .” (Emphasis ours.)

By the express wording of the endorsement the statute is thus made a part of such endorsement.

The policy sued on does not define “motor vehicle accident.” There is no question but what a collision between two automobiles would be a motor vehicle accident. A collision between a car and a fixed or stationary object would also be a motor vehicle accident. And another reasonable construction of the meaning of that phrase as used in the policy would be an accidental injury sustained by a person while engaged in the use of or while occupying a motor vehicle. Because the phrase “motor vehicle accident” can be construed as having more than one meaning, as we have demonstrated, it is our duty in deciding this case to give the phrase the construction that is most favorable to the insured.

The insured when hurt was “occupying” the insured vehicle.

We hold that a proper construction of the personal injury protection endorsement No. 243 is that the accident sustained by plaintiff, the named insured, was a motor vehicle accident within the meaning of the policy for the reason: that the accident involved was an accident sustained in a motor vehicle while the insured was in the process of alighting therefrom after using same.

The insuring agreement of the endorsement No. 243 provides that: “(2) any other person who sustains bodily injury, caused by accident, (a) while occupying the insured motor vehicle” is covered. The endorsement defines “occupying” as meaning “in or upon or entering into or alighting from”. So by the express wording of the endorsement No. 243 the insureds described in the endorsement in the paragraph No. (2) just quoted as “any other person” would be expressly covered for the very loss that the plaintiff (the named insured) sustained in this case. The effect of the construction placed on the endorsement by the trial court and by the defendant (holding that plaintiff’s loss was not covered) would thus be to give the named insured (the plaintiff here) less coverage than the endorsement expressly provides to those other insured persons referred to in the endorsement in the quoted paragraph No. (2) that we here-inabove referred to.

When the policy is construed as we have indicated above, then the named insured is given the same coverage as are the other insureds while they are “occupying” the insured vehicle. We are convinced that it was the intention of the parties that the named insured be afforded that protection.

We are convinced that the real purpose of putting the words “motor vehicle accident” into the endorsement No. 243 at the point where it is located was to give the “named insured” more coverage than the insureds in the policy, other than the named insured, are given by such endorsement. This is true because the insuring agreement of the endorsement restricts coverage furnished the insureds, other than the named insured and members of his household, to losses arising out of bodily injuries sustained by such insureds while either occupying or using the insured automobile. A reading of paragraph (1) of the insuring agreement reveals that the coverage furnished to the named insured and to members of his household is not limited to accidents occurring to such insureds while occupying or using the insured vehicle but includes coverage for bodily injuries sustained by accident in connection with any motor vehicle, even though it is not the insured car.

In the case of Southern Surety Co. v. Davidson, supra, the insured had been using his car, had driven up to the curb, stopped his car, cut off his motor, started alighting from the car and in doing so stepped onto a brick and hurt his leg and ankle. The policy sued on provided coverage for accidental injury while operating an automobile. The Court in the Davidson case held that plaintiff was covered because: “The operation of an automobile necessarily implies doing all that is necessary to be done to successfully move the same from place to place. It must necessarily be entered and upon reaching his destination the operator must alight to the ground within a reasonable time after his arrival.”

Other cases that we believe support our holding that the plaintiff was covered by the endorsement sued on are: Standard Life & Accident Insurance Co. v. Hardee, supra; Dorsey v. Fidelity Union Casualty Go., supra; and National Life and Accident Insurance Go. v. Hunter, 519 S.W.2d 709 (Tex.Civ.App., Beaumont, 1975, ref., n. r. e.).

The judgment is reversed and here rendered overruling defendant’s plea of privilege.


author: CHADICK, Chief Justice.

text:
    James M. BILLS, Relator, v. Honorable Henry BRASWELL et al., Respondents.
    No. 8395-P.
    Court of Civil Appeals of Texas, Texarkana.
    March 4, 1976.
    C. V. Flanary, Paris, for relator.
   CHADICK, Chief Justice.

James M. Bills has filed a motion for leave to file, as an original proceeding in this court, a petition for writ of mandamus. Relator Bills heretofore filed an application in the County Court of Lamar County to probate the will of his mother, Inez Bills, deceased. H. E. Neblett filed a contest to the probate application and the proceeding was transferred to the District Court pursuant to Tex.Prob.Code Ann. Sec. 5. The matter became Cause No. 42029, In The Matter Of The Estate Of Inez Bills, deceased, on the docket of the Sixth Judicial District Court of Lamar County, Texas. The relief desired is that this court exercise jurisdiction granted by Tex.Rev.Civ.Stat. Ann. art. 1824 and issue a writ of mandamus directing the Honorable Henry Bras-well, Judge of the mentioned District Court, to set aside an order sustaining a plea to the jurisdiction of that court and proceed to trial and judgment on the probate application. The judgment of the trial court clearly shows that relator Bills’ application for probate, that is, Cause No. 42029, In The Matter Of The Estate Of Inez Bills, deceased, was dismissed and is not currently pending for trial in the court below.

In the trial court the parties urged different and inconsistent courses of action upon the trial judge. Relator Bills urged a trial on the merits, that is, probate of the proffered will. Respondent Neblett urged dismissal of the pending suit because a later will had been probated in the State of Arkansas and the Courts of Texas, in a spirit of comity, should defer to the Courts of Arkansas in determining the true last will and testament of the decedent. After consideration of the alternatives, the trial judge opted to dismiss.

The recent case of Williams v. Stewart, 525 S.W.2d 710 (Tex.Civ.App. Houston 14th Dist. 1975, no writ) dealt with a record where, for want of jurisdiction, the trial court had dismissed a suit with prejudice. On consideration of the whole record the appeals court concluded that the trial court actually had jurisdiction. Nevertheless, it further concluded that ordering dismissal was an exercise of judicial discretion. Whether or not in the instant case the judgment of the trial court was tantamount to sustaining a plea in abatement rather than a plea to the jurisdiction makes no decisive difference. An order merely sustaining a plea in abatement is, ordinarily, interlocutory and not appealable. However, the order here goes further; it dismisses relator’s cause of action. An appellate court may by mandamus require a district judge to perform a ministerial duty but, even when an appeal will not afford an adequate remedy, acts of discretion are not subject to review or correction by mandamus. Williams v. Stewart, supra, and cases therein cited.

The decisive question here is whether or not the judgment entered is the product of a determination of an issue, or issues, the.trial court had jurisdiction to decide. The record shows a hearing was held and the court considered whether or not it should defer to the Courts of Arkansas, etc. A decision was made that it should defer and the pending cause of action was dismissed. Since this court cannot in an Article 1824 mandamus proceeding review or correct error in the trial court’s action, the application for leave to file is refused.

Refusal does not run counter to Boswell v. Stewart, 531 S.W.2d 380 (Tex.Civ.App. Houston 14th Dist. 1975, no writ), cited by the relator. The opinion in that case states that an order disposing of a petition in intervention was void and proceeds on the theory that such disposition was a nullity and dismissal under the circumstances was a refusal to proceed to trial and judgment.

Motion overruled.


author: ROBINSON, Justice.

text:
    Carlos Javier MIJARES, Appellant, v. Maria Rosario PAEZ, Appellee.
    No. 8658.
    Court of Civil Appeals of Texas, Amarillo.
    March 8, 1976.
    Rehearing Denied March 29, 1976.

      Woodrow W. Bean, El Paso, for appellant.
    Hurley & Sowder, Madison Sowder, Lubbock, for appellee.
   ROBINSON, Justice.

Plaintiff Maria Rosario Paez brought a paternity suit against Carlos Javier Mijares in Lubbock County. Defendant Mijares filed his plea of privilege alleging that El Paso County was his residence and seeking transfer of the cause to El Paso County. Defendant appeals the trial court order overruling his plea of privilege. He contends (1) that the trial court “erred in finding” that appellant resided in Lubbock County for venue purposes; (2) that the Texas Family Code Ann. § 13.41 (Supp. 1976), which became effective after this suit was filed and which places venue where the alleged father resides if the mother is the petitioner, should be applied retroactively. Affirmed.

Defendant was not a minor at any time pertinent to this suit. He testified that he enrolled in Texas Tech University in Lubbock County, Texas, in January, 1974, and was still enrolled there in the fall semester of 1975. During the spring and fall semesters of 1974 he resided in university housing. He returned to El Paso during the summer of 1974 and at Christmas. He was enrolled in Texas Tech University during both the spring and summer semesters of 1975, as well as during the fall semester of 1975 when the hearing was held.

The defendant registered to vote in Lubbock County, listing his dormitory address in Lubbock County as his home address. At the time of the hearing, he was maintaining an apartment in Lubbock where he took his meals. He was served with citation in Lubbock County.

The defendant testified that he intended to complete a bachelor’s degree at Texas Tech, but that he was only in Lubbock County to go to school, that he did not like Lubbock, and that it would never be his home.

When the defendant registered to vote in Lubbock County, giving his dormitory address as his residence, he represented that Lubbock County was his “current permanent residence address.” V.A.T.S. Election Code, Art. 5.13b, subd.l(8).

Furthermore, the defendant could be a resident of Lubbock County for venue purposes even if his domicile were elsewhere. Although a person may have only one domicile, he may establish more than one residence for venue purposes. Even a rented room may qualify and the intent to make a permanent home is not necessary to the establishment of a second residence away from the domicile. Snyder v, Pitts, 150 Tex. 407, 241 S.W.2d 136 (1951). In Snyder, the Supreme Court announced a three element test to determine whether a second residence away from' a domicile has been established. The proof must show that (1) the defendant possesses a fixed place of abode, (2) occupied or intended to be occupied consistently over a substantial period of time, (3) which is permanent rather than temporary.

The court in Ward v. Lavy, 314 S.W.2d 381 (Tex.Civ.App. — Eastland 1958, no writ) applied the Snyder test to facts similar to those before us. It held that a student at Hardin-Simmons University located in Taylor County had established residence in Taylor County for venue purposes by virtue of his enrollment in that university with the intention of remaining one or two years together with his rental of an apartment there.

We conclude that the trial court did not err in finding that the defendant was a resident of Lubbock County for venue purposes.

Since the new § 13.41 of the Family Code places venue of a paternity suit at the residence of the defendant and since the trial court found, contrary to defendant’s contention, that he was a resident of Lubbock County, we do not reach defendant’s contention that § 13.41 should be applied retroactively.

The order of the trial court overruling defendant’s plea of privilege and retaining venue in Lubbock County is affirmed.


text:
    Richard Scott GEIGER, Relator, v. Manuel DeBUSK, Chairman, Dallas County Democratic Executive Committee, Respondent, Pete Howell, Intervenor.
    No. 18944.
    Court of Civil Appeals of Texas, Dallas.
    March 9, 1976.

      Richard S. Geiger, Dallas, for relator.
    Ronald A. Dubner, Dallas, for chairman.
    Joseph A. Devany, Dallas, for intervenor.
   CLAUDE WILLIAMS, Chief Justice.

Relator, Richard Scott Geiger, has with our permission filed his original petition in this court seeking a writ of mandamus against respondent, Manuel DeBusk, Chairman, Dallas County Democratic Executive Committee, requesting this court to order respondent to omit the name of Pete Howell as a candidate for nomination to the office of state representative, District 33G, Dallas County, Texas, when the official ballot is prepared. Our jurisdiction to hear this original proceeding is expressly granted by Tex.Rev.Civ.Stat.Ann. art. 1735a (Vernon Supp.1975) and Tex.R.Civ.P. 383. The question presented turns on the construction of article 13.08(d) of Vernon’s Annotated Civil Statutes, as amended September 1, 1975. More specifically, the right to the issuance of the writ of mandamus depends upon whether the provisions of the statute requiring an affidavit to be attached to the petition in lieu of the payment of a filing fee is mandatory or directory. We hold that the requirement is mandatory and that having failed to attach an affidavit to the nominating petition, the potential candidate’s name cannot be printed on the official ballot.

The following facts are undisputed. Pete Howell, who appears in this action as an intervenor, made written application to the County Chairman, Dallas County Democratic Executive Committee, on January 30, 1976, asking that he be placed upon the ballot of the Democratic primary held on May 1, 1976, for the office of state representative, District 33G. Attached to his application is a “petition in lieu of filing fee” and contains the statement required to be set forth in hac verba in article 13.08(d). Following this statement is a list of names of voters alleged to be eligible to vote for the office for which the candidate is running. The statement is signed but not verified by affidavit. Respondent chairman received and accepted the application of Howell and filed the same. Relator, through his attorney, called attention to the deficiencies in the nominating petition but the chairman determined that he would accept the application and authorize the name of Pete Howell to be placed on the Democratic primary ballot on May 1, 1976.

Howell admits that the petition which he filed pursuant to authority of article 13.-08(d) is not verified by affidavit but attempts to avoid the effect of this omission by taking the position that (1) such statutory provision concerning affidavit is directory and not mandatory; and (2) that he received the forms for voters’ signatures from the county Democratic chairman’s office in Dallas and relied upon these forms as being correct.

The statute with which we are concerned, article 13.08(d), which provides an alternative method of becoming a candidate without payment of filing fee, is plain and explicit in its provisions that “to each part of the petition shall be attached an affidavit of the person who circulated it, stating that he called each signer’s attention to the statement and read it to him before the signer affixed his signature to the petition, and further stating that he witnessed the affixing of each signature, that the correct date of signing is shown on the petition, and that to the best of his knowledge and belief each signature is a genuine signature of the person whose name is signed. A petition so verified is prima facie evidence that the signatures thereon are genuine and the persons signing it are registered voters. It is the specific intent of the legislature that there shall be no requirement for the administering of an oath to any person signing a petition under the provisions of this section.”

It is quite obvious that it was the purpose and intent of the legislature to specifically require that the person who proceeds under this alternative method of placing his name upon the ballot without paying his filing fee, must submit a petition supported by a sworn statement in the form of an affidavit setting forth specific items. We hold that these clear and specific directions both as to the content of the instrument and the fact that it must be verified are clearly mandatory and not directory. Consequently, intervenor must strictly comply with these mandatory provisions. The legislature made it quite clear that it did not intend for the voters themselves to be subjected to an oath, but it did intend for the person seeking to have his name placed upon the ballot to be subject to an oath. As stated in McWaters v. Tucker, 249 S.W.2d 80 (Tex.Civ.App. — Galveston 1952, no writ), the provisions of election laws which relate to voters are to be construed as directory whereas the provisions of election laws governing what is required of candidates are mandatory. This is because the right to vote is a fundamental one, whereas the right to hold an office is in the nature of a privilege.

Nor can we agree with intervenor’s contention that he was entitled to rely upon the respondent chairman’s action in furnishing him with the blank forms which he assumed would be sufficient to comply with the law. The identical question was decided adversely to intervenor’s contention by the Supreme Court in Brown v. Walker, 377 S.W.2d 630 (1964).

In Brown a candidate relied upon the statement of the county Democratic chairman concerning the method and manner of mailing his filing fee. The fee was not received in time, and the candidate sought to excuse his failure to comply with the mandatory provisions of the statute by asserting that he had relied upon the assurances of the chairman. The Supreme Court rejected this contention and held that the candidate’s failure to follow the plain and mandatory provisions of the law barred him from appearing on the ballot.

This opinion is directly in point and controls the factual situation here. We are bound to follow the law as announced by our Supreme Court and overrule interve-nor’s contention.

Since the mandatory provisions of the statute have not been complied with, we order the issuance of a writ of mandamus directing Manuel DeBusk, Chairman, Dallas County Democratic Executive Committee, to omit and delete the name of Pete Howell as a candidate for nomination to the office of state representative, District 33G, when the official ballot is prepared.

The ballots for the Democratic primary to be held May 1, 1976, will be printed March 16, 1976. For that reason we direct that a motion for rehearing by respondent and intervenor will not be entertained. Their remedy is to seek a writ of mandamus from the Supreme Court.

GUITTARD, J., not sitting.


text:
    Frances Dacus BLACKMON, Appellant, v. Edwin L. NELSON, Jr., Appellee.
    No. 8348.
    Court of Civil Appeals of Texas, Texarkana.
    March 9, 1976.

      Gordon McDowell, Dallas, for appellant.
    Henry E. Wise, Dallas, for appellee.
   CHADICK, Chief Justice.

This appeal is from judgment in a suit, authorized by Tex.Prob.Code Ann.Sec. 93, to contest the validity of the probated will of Beulah Lanford Nelson, deceased. A written instrument dated May 30,1974, was admitted to probate as the will of Mrs. Nelson on July 8, 1974, and Frances Dacus Blackmon was appointed independent executrix of the will and promptly qualified. Thereafter, on October 4, 1974, Mrs. Black-mon, in her capacity as independent executrix, filed an inventory, appraisement and list of claims. This instrument showed the estate to have a gross appraised value of $56,087.64 with no claims against or due the estate. Edwin L. Nelson, Jr., the only child of the decedent, filed suit to contest the validity of the probated will. Two sisters of Mrs. Nelson and Edwin L. Nelson, Jr.’s former wife, individually, and as managing conservator of Mr. Nelson’s three minor children, formally entered appearances in the case. A jury trial ensued and on the jury’s answer to special issues, judgment was entered in the trial court annulling probate of the will and the letters testamentary therefore issued to Mrs. Blackmon. Mrs. Blackmon, individually and in her representative capacity has appealed.

Appellant Blackmon’s brief was not filed before expiration of the thirty day time allowed for that purpose by Tex.R. Civ.P. 414. The cause of this lapse is disputed. In the absence of good cause Tex.R. Civ.P. 415 allows appellate courts to enforce Rule 414 by directions less onerous than dismissal of the appeal. Appellant’s tardy brief will be considered. Texaco Inc. v. Joffrión, 363 S.W.2d 827 (Tex.Civ.App. Texarkana 1962, writ ref’d n.r.e.); Hoke v. Poser, 384 S.W.2d 335 (Tex.1964).

Mrs. Blackmon’s trial pleadings were understood in the trial court to allege that she had just cause to defend Mrs. Nelson’s probated will and did so in good faith. She prayed recovery of expense and reasonable attorney fees incurred in the defense. Without entering a severance order, the trial judge refused to hear evidence in support of the allegations or to permit relevant issues to be considered in the course of the will contest. In addition to compensation allowed by Tex.Prob.Code Ann. Sec. 241, an independent executrix is allowed to recover expense and disbursements, including reasonable attorney fees, expended in defending, in good faith and with just cause, a probated will. Tex.Prob.Code Ann. Sec. 243; 18 Tex.Practice (Woodward And Smith), Secs. 721 and 731.

Allowance of expenses is conditioned by Sec. 243 only upon Mrs. Blackmon having acted in good faith and with just cause. The authors of the text last cited regard good faith as a question of fact and cite Huff v. Huff, 132 Tex. 540, 124 S.W.2d 327 (1939) in support of their conclusion. Undue influence by the executor was established in that case, nevertheless, the court said:

“We think that the executor could have had submitted to the jury, along with the other issues, the question of good faith on his part in offering the will for probate; and if the jury had found that, under all the circumstances, he had acted in good faith, then he would have been entitled to judgment for such attorneys’ fees and court costs.” The opinion clearly holds that a jury finding that a will is the product of undue influence does not, as a matter of law, bar a recovery by an executor when it is also established, under all the circumstances of the case, that the executor acted in good faith in offering the will for probate. The trial judge, under the provisions of Tex.R. Civ.P. 174, was empowered to sever the good faith and associated issues from the will contest for separate trial. The judgment entered improvidently failed to order such severance. Failure to determine the issue or issues associated with Mrs. Blackmon’s alleged good faith defense of the will does not necessarily require a retrial of the will contest. Fact issues associated with just cause and good faith, clearly may be separated from other issues that are determinative of the will contest. When an error affects a clearly separable part of a controversy, Tex.R.Civ.P. 434 (1976), permits Courts of Civil Appeals to reverse and order retrial of that part of the case affected by the error when retrial may be accomplished with fairness to the parties.

Appellant Blackmon’s second and third points of error pertain to the jury’s verdict that Mrs. Nelson’s will was procured by undue influence and present questions of no evidence and the great weight and preponderance of the evidence supporting the verdict. Though no point is brought forward, the sufficiency of the evidence is also argued under the second and third points. Disposition of these points of error, as well as any question of sufficiency of the evidence, become immaterial as the trial court judgment is supported by the jury’s verdict on another special issue, that is, a finding that Mrs. Nelson did not have testamentary capacity at the time she made the will. Nevertheless, to complete review in this court the second and third points are overruled.

The evidentiary record contains evidence, that if believed, amply supports the jury’s verdict on the issue of Mrs. Nelson’s testamentary capacity at the time she made and published her will. Impliedly, at least, the jury believed such evidence. Nothing will be gained by detailing relevant evidence here. The fourth and fifth points are overruled.

Appellant’s sixth and last point of error is concerned with twelve different allegedly erroneous rulings and episodes that occurred in the course of the trial, none of which are made the subject of a specific point of error and briefed, nor is the single point briefed in its dozen aspects. The point is multifarious. It cannot be considered. The function of a point of error is to direct attention to a particular error requiring reversal of a case, that is, particularize and direct appellate attention to a hurtful error rather than to several separate and distinct errors alleged to have been committed in the course of the trial. Tex.R.Civ.P. 418.

For appeal purposes the silence of the judgment of the trial court constitutes a denial of Mrs. Blackmon’s claim for reimbursement. The judgment entered disposed of all issues and parties and is final. North East Independent School District v. Aldridge, 400 S.W.2d 893 (Tex.1966); The Home Insurance Company v. Greene, 443 S.W.2d 326 (Tex.Civ.App. Texarkana 1969), aff’d, 453 S.W.2d 470 (Tex.1970). Annulment of the order probating the will and revocation of the letters testamentary, as set out in the trial court judgment, is affirmed; but the judgment’s denial of appellant Blackmon’s claim for reimbursement is reversed and remanded for retrial. Costs are adjudged one-half against the appellee and one-half against the appellant.

       The good faith and associated issues may be tried in a subsequent suit for reasons apart from Rule 434. If the judgment binds Mrs. Nelson’s heirs and the personal representative of her estate, insofar as these issues are concerned, such persons will be estopped to invoke the res judicata rule. Those prosecuting the will contest induced the trial court to rule that reimbursement and good faith defense issues could not be properly litigated in the will contest. Parties bound by the trial court judgment will not be permitted to take the position in a trial of a subsequent claim for expenses that these issues should have been submitted for determination in this earlier will contest. Sewell Paint & Glass Co. of Texas v. Booth Lumber & Loan Company, 50 S.W.2d 793 (Tex. Comm’n App. 1932); Abilene Gas & Electric Co. v. Thomas, 211 S.W. 600 (Tex.Civ.App. El Paso 1919, no writ); see also Mueller v. Banks, 332 S.W.2d 783 (Tex.Civ.App. San Antonio 1960, no writ); Long v. Knox, 155 Tex. 581, 291 S.W.2d 292 (1956); 34 Tex. Jur.2d, Judgments, Sec. 463.


author: SHANNON, Justice.

text:
    Ruth I. WATKINS et al., Appellants, v. TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellee.
    No. 12394.
    Court of Civil Appeals of Texas, Austin.
    March 10, 1976.
    Rehearing Denied March 31, 1976.

      E. B. Underwood, Ballinger, for appellants.
    Justin A. Kever, Kever & Ratliff, San Angelo, for appellee.
   SHANNON, Justice.

Appellants, Ruth I. Watkins and Timothy Neil Watkins, the surviving widow and minor child of Clifford Watkins, appeal from a judgment non obstante veredicto entered by the district court of Sterling County that they take nothing in a workmen’s compensation ease. Appellee is Texas Employers’ Insurance Association. We will affirm that judgment.

Clifford Watkins, died in Sterling County on January 18, 1974, from a gunshot wound to the left side of his head. On that date he was employed by Seidel, Inc., as an operator of a road grader on a highway construction project between Sterling City and Robert Lee. Aftér the noon hour Watkins was discovered unconscious in a company pickup. He was taken to the hospital where he died later that day.

No one saw the shooting. It was shown that the bullet which struck Watkins came from his semi-automatic rifle which was found locked in the rifle rack located behind the pickup seat. The muzzle of the rifle was pointed toward the passenger side of the pickup, and Watkins was discovered on the same side of the pickup.

Most of the testimony centered upon whether or not the gunshot wound was self-inflicted. Appellants called several fellow employees and family members who testified that Watkins had no reason to be upset with his work or family life. They had noticed no change in his demeanor or personality. Appellants testified that Watkins was anticipating future plans such as a camping trip to Colorado in the coming summer and making improvements to his farm. On the other hand, appellee’s evidence was that Watkins had suffered mental and emotional disturbances since 1966, and that he had been hospitalized for that condition in 1966, 1972, and 1973, for periods totaling several months. During his first hospitalization Watkins had attempted to take his life by slashing his wrists.

Appellants pleaded that Watkins acci-dently suffered the gunshot wound “. while engaged in the course of his usual and regular employment for . . .” Seidel, Inc. Appellee insurance company pleaded affirmatively that the Watkins’ injury was caused by his willful intention to injure himself. Appellee specially denied that Watkins died as the result of an accidental injury, and that Watkins sustained an accidental injury in the course of his employment with Seidel, Inc.

The court submitted the case to the jury by one special issue which inquired whether the gunshot wound received by Watkins was not caused by his willful intention to injure himself. Appellee objected to the court’s charge in its entirety for the reason that the charge did not submit the issue inquiring whether Watkins sustained an accidental injury in the course of his employment. In response to the special issue submitted, the jury answered that the gunshot wound . . was not caused by his willful intention to injure himself.”

In the judgment, the district court listed several reasons in support of the judgment non obstante veredicto. As one of the reasons, the court recited that appellants

“. . . did not request any issue or issues inquiring as to whether or not the death of the deceased was caused by an accidental injury received by him in the course and scope of his employment. The burden was upon the plaintiffs [appellants] to prove that the deceased sustained an accidental injury in the course and scope of his employment resulting in his death. These issues constitute a separate and independent ground of recovery that must be established by plaintiffs, and, there being no request.to submit such issue or issues, and same being omitted from the Court’s charge, the issue or issues as to whether or not the deceased sustained an accidental injury in the course and scope of his employment were by the plaintiffs waived . . .”

By point of error number six appellants maintain that the district court erred “. in holding that Plaintiffs [appellants] waived any issue as to accidental injury in the course and scope of employment.” In support of their point appellants point out that appellee objected to the court’s charge for the reason that it did not contain an issue with respect to injury sustained in the course of employment. Appellants say that the primary purpose of Tex.R.Civ.P. 279 “is to bring to the court’s attention the issues raised.” Appellants then argue that appel-lee’s objection served that purpose.

In a workmen’s compensation case the workman must obtain a finding that he sustained an injury in the course of his employment. Wynn v. Southern Surety Company, 26 S.W.2d 691 (Tex.Civ.App.1930, writ ref’d). To that end the workman must request the court to submit such a special issue in substantially correct form. See Merchandise Mart, Inc. v. Marcus, 483 S.W.2d 893 (Tex.Civ.App.1972, writ ref’d n. r. e.), Walsh v. Hershey, 472 S.W.2d 954 (Tex.Civ.App.1971, writ ref’d n. r. e.). An independent ground of recovery not conclusively established, is waived if no issue thereon is given or requested. Glens Falls Insurance Co. v. Peters, 386 S.W.2d 529 (Tex.1965), Tex.R.Civ.P. 279.

Contrary to appellants’ argument, appellee’s objection to the court’s charge did not preserve for appellants their complaint that the charge failed to submit the matter of course of employment. Texas Employers’ Insurance Association v. Neuman, 379 S.W.2d 295 (Tex.1964), Montgomery Ward & Co. v. Randio, 419 S.W.2d 407 (Tex.Civ.App.1967, writ ref’d n. r. e.).

Appellants did not request the submission of a special issue requiring whether Watkins sustained an injury in the course of his employment with Seidel, Inc. By failing to request the submission of the issue, appellants waived their ground of recovery for workmen’s compensation benefits unless the evidence conclusively established that Watkins suffered an injury in the course of his employment. Appellants insist that the evidence was conclusive that Watkins suffered an injury in the course of his employment with Seidel, Inc. We do not agree.

An injury sustained in the course of employment includes “. . . all other injuries of every kind and character having to do with and originating in the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employer whether upon the employer’s premises or elsewhere.” Tex. Rev.Civ.Stat.Ann. art. 8309, § 1 (1959).

The requirements of the statute are not satisfied by proof that injury occurred while the claimant was engaged in or about the furtherance of his employer’s affairs or business. He must also show that the injury was of a kind and character that had to do with and originated in the employer’s work, trade, business, or profession. Shelton v. Standard Insurance Co., 389 S.W.2d 290 (Tex.1965), Texas General Indemnity Co. v. Bottom, 365 S.W.2d 350 (Tex.1963), Walker v. Texas Employers’ Insurance Association, 443 S.W.2d 429 (Tex.Civ.App.1969, writ ref’d).

There was no evidence that Seidel, Inc., required its employees to carry firearms in the company trucks. The testimony was that Watkins had always carried the rifle in the pickup. Henry Kresta, Jr., an employee of Seidel, Inc., testified that he carried a rifle and that he knew of no company rule prohibiting that practice. Kresta had used that rifle at the job site in times- past to kill two foxes which he thought rabid and to kill a “couple of rattlesnakes.” Besides himself and Watkins, Kresta testified that he knew of one other employee who carried a rifle. Harold Steely, another employee, testified that he had once killed a rattlesnake with Watkins’ rifle. There was no' evidence that Watkins had ever used the rifle to shoot snakes or animals on the job.

The burden was on appellants to prove that the death of Watkins was of a kind and character that had to do with and originated in the employer’s work, trade, business or profession. Appellants introduced no direct evidence to that effect. Appellants did adduce some evidence that two other employees carried rifles which they occasionally used to kill snakes or potentially dangerous animals on the job. From those facts it might be inferred that Watkins carried the rifle as an incident to his employment. Notwithstanding, reasonable minds could draw a different inference. Under such circumstances, it is plain that the evidence did not conclusively establish that Watkins’ injury was sustained in the course of his employment. Southern Underwriters v. Willis, 110 S.W.2d 252 (Tex. Civ.App.1937, writ ref’d). See Cavanaugh v. Davis, Í49 Tex. 573, 235 S.W.2d 972 (1951), Commercial Standard Insurance Co. v. Davis, 134 Tex. 487, 137 S.W.2d 1 (1940), Olds v. Traylor, 180 S.W.2d 511 (Tex.Civ. App.1944, writ ref’d).

The judgment is affirmed.

Affirmed.


author: PER CURIAM:

text:
    Mary Alice CHAPA, Relator, v. Honorable Charles O. BETTS, Respondent.
    No. 12442.
    Court of Civil Appeals of Texas, Austin.
    March 10, 1976.

      Regina Lynn Rogoff, Travis County Legal Aid and Defender Society, Austin, for appellant.
   PER CURIAM:

Relator being denied the right to intervene in a proceeding in district court to terminate a parent-child relationship, petitioned this Court on February 23, 1976, for leave to file her application for writ of mandamus to require the trial court to set aside an illegal order denying Relator right of intervention and a hearing. Petition was granted and hearing on application for mandamus set for 9 o’clock a. m. on February 25, 1976.

Upon hearing before this Court, it appears that intervention sought below was grounded on Relator’s interest in the child, by reason of having actual and continuous custody of the child since its birth to date, a period of about seven and one-half years, and pursuant to authority of Article 11.03, Texas Family Code, and Rule 60, Texas Rules of Civil Procedure.

This Court concludes that petition to file application for mandamus was improvidently granted, since under the limited powers of mandamus accorded intermediate appellate courts in Texas this Court is without jurisdiction to order the trial court to set aside an illegal order. Arts. 1823, 1824, V.A.C.S.; Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434, 438 (1959). Only the Supreme Court has power in mandamus proceedings to require district courts to set aside an illegal order. State Board of Insurance v. Betts, 158 Tex. 612, 315 S.W.2d 279 (1958); Buttery v. Betts, 422 S.W.2d 149 (Tex.Sup.1967).

The petition for mandamus is dismissed.

Petition dismissed for want of jurisdiction.


author: DIES, Chief Justice.

text:
    Nicholas Lanier CARPENTER, Appellant, v. Linda Nell (Carpenter) ROSS, Appellee.
    No. 7780.
    Court of Civil Appeals of Texas, Beaumont.
    March 11, 1976.
    Frank A. Hale and Ed Wheeler, Pasadena, for appellant.
    David C. Gunn, Baytown, for appellee.
   DIES, Chief Justice.

In May 1974 appellant Nicholas L. Carpenter and appellee Linda Nell Carpenter were granted a divorce. Appellant (ex-husband) was named managing conservator of their two children, and appellee (ex-wife) was given visitation rights. On or about April 18, 1975, appellee took physical possession of the children as provided by the decree and refused to return them to appellant. Appellant then filed for writ of habe-as corpus seeking their return. At the-hearing, over objection, the court heard evidence on the serious immediate question concerning the welfare of the children, then denied the writ and entered a decree making appellee (ex-wife) the temporary managing conservator and appellant (ex-husband) temporary possessory conservator with visitation rights on the first and third week-end of each month.

At the time of the entry of this decree, appellee (ex-wife) had a motion pending for permanent modification of the custodial rights granted in the divorce decree. It had not been heard, but it is clear from the statement of facts that the trial court intended to hear it promptly.

It is from this temporary order the ex-husband brings this appeal. He has several points, but in view of our decision herein it is unnecessary to discuss them.

The trial court had authority under § 14.-10 of the Tex.Family Code Ann. (1975) to issue the temporary order.

Before the enactment of the Family Code, temporary orders for custody of children pending suit for divorce were not appealable. Goodman v. Goodman, 224 S.W. 207 (Tex.Civ.App. — Texarkana 1920, no writ); Lawler v. Wray, 8 S.W.2d 524 (Tex. Civ.App. — Waco 1928, orig. proceedings); Wardlaw v. Wardlaw, 267 S.W .2d 250 (Tex. Civ.App. — Waco 1954, no writ); Morrow v. Gallant, 312 S.W.2d 526 (Tex.Civ.App.— Austin 1958, no writ); Mendoza v. Baker, 319 S.W .2d 147 (Tex.Civ.App. — Houston 1958, no writ); Affolter v. Affolter, 389 S.W.2d 742 (Tex.Civ.App. — Corpus Christi 1965, no writ).

The order before us is a temporary order made under the authority of Tex.Family Code Ann. § 14.10(c) (1975) and is not an appealable order under Tex.Family Code Ann. § 11.19(b)(2) (1975). As such, it is purely interlocutory and is not appealable. When a decision has been reached in the modification proceedings under Tex.Family Code Ann. § 14.08 (Supp.1975-1976), then and only then will an appeal lie.

The appeal is DISMISSED.

       “HABEAS CORPUS
      “(a) If the right to possession of a child is presently governed by a court order, the court in a habeas corpus proceeding involving the right to possession of the child shall compel return of the child to the relator if and only if it finds that the relator is presently entitled to possession by virtue of the court order.
      “(b) The court shall disregard any cross action or motion pending for modification of the decree determining managing conserva-torship, possession, or support of or access
      to the child unless it finds that the previous order was granted by a court of another state or nation and that:
      “(1) the court did not have jurisdiction of the parties; or
      “(2) the child has been within the state for at least 12 months immediately preceding the filing of the petition for the writ.
      “(c) The court may issue any appropriate temporary order if there is a serious immediate question concerning the welfare of the child.” (Emphasis supplied.)


author: VANCE, Commissioner.

text:
    John A. LAWS, Appellant, v. John S. HARTER, M.D., and Marvin A. Bowers, M.D., Appellees.
    Court of Appeals of Kentucky.
    Oct. 17, 1975.
    As Modified on Denial of Rehearing April 16,1976.
    Alan N. Leibson, J. Leonard Rosenberg, Louisville, for appellant.
    John T. Ballantine, Ogden, Robertson & Marshall, Louisville, for appellees.
   VANCE, Commissioner.

This is an appeal from a judgment entered pursuant to a directed verdict which dismissed appellant’s claim.

The appellant was admitted to St. Joseph’s Infirmary where thoracic surgery known as a Heller Procedure was performed on February 29, 1968, by the appel-lee Dr. John S. Harter. This surgery did not give the desired results and on March 18, 1968 a second type of thoracic surgery known as a Thai Procedure was performed by Dr. Harter. The appellee Dr. Marvin A. Bowers was anesthesiologist for the second operation.

In the Thai Procedure an opening was made in the chest wall through the scar tissue formed by the incision for the Heller Procedure. The Thai Procedure was considerably more complicated because once entry - was gained to the chest cavity an additional incision was made through the diaphragm so that the surgeon had access to both the chest cavity and the abdominal cavity.

Before the incision in the diaphragm was closed a sponge count was made and reported to be accurate. The incision in the diaphragm was then sutured.

A second sponge count was made prior to closing the incision through the chest wall and it was discovered that one sponge was missing. A search for the sponge was made in the chest cavity to no avail.

The sponges contained an opaque material to make them visible in X-rays but neither Dr. Harter, Dr. Bowers nor the radiologist was able to locate the sponge in the patient although two X-ray pictures were taken for that purpose.

The appellees decided, upon medical considerations, that it would be better to close the patient and later explore for the missing sponge if it could be located. It should be pointed out that a sponge count which showed a missing sponge did not necessarily mean that the missing sponge was inside the patient since it was shown that used sponges sometimes fell upon the floor of the operating room and could stick to the shoe soles of operating room personnel and be carried from the operating room inadvertently.

X-rays of the appellant taken at a later date revealed a sponge located in his abdomen but he was not told of that fact. Dr. Harter testified that an exploratory operation on the stomach was necessitated because of a suspected retroperitoneal fibrosis and during the course of this exploratory operation the sponge was removed. No re-troperitoneal fibrosis was discovered.

The appellant developed a chronic empye-ma, a collection of pus in a localized area, in the chest cavity which required extensive hospitalization and resulted in serious physical impairment.

The appellant’s theory of liability is as follows: (1) It was negligence per se for the doctor to leave a sponge inside the patient; (2) the sponge which was left inside appellant’s body was the source of infection which caused the empyema; (3) in the alternative, the empyema was caused by the premature removal by Dr. Harter of a tube which drained the chest cavity and (4) additional surgery was necessary to remove the sponge.

We conclude that appellee, Harter, was negligent as a matter of law. It may be true, as he claims, that when it was discovered that a sponge was missing, he exercised to the highest degree all of the skills known to the medical profession in his attempt to locate the missing sponge, and having failed to locate it, the condition of the patient at that time may have been such that any reasonably prudent surgeon would have closed the patient.

However exemplary the care given to appellant after discovering that a sponge was missing, the fact remains that when the incision through the diaphragm was closed a sponge was left in the abdomen. The sponge count at that time failed to show any sponge missing but in truth one of the sponges was missing and the count was inaccurate. The failure to correctly account for the sponges under the circumstances constituted negligence as a matter of law.

There is no evidence in this case (which arises to the dignity of a reasonable probability as contrasted with a possibility) that the sponge was the cause of the chronic abscess and empyema which developed in appellant’s chest cavity. The sponge was recovered from the abdomen and the em-pyema was confined to the chest. The two body cavities are separated by the diaphragm and the medical evidence discounted rather than supported the probability that the sponge in the abdomen caused the empyema in the chest cavity.

Although there was much evidence that the premature removal of a drainage tube following a chest operation will likely result in chronic abscess and the formation of an empyema there was no evidence that the tube was prematurely removed in this case and the fact that an empyema developed will not support an inference that the tube was removed prematurely.

The appellant contends that Dr. Harter’s testimony constituted an admission that the empyema in this case developed as a result of his premature removal of the drainage tube. We have examined his testimony and find that it is not subject to such a construction.

Although we hold the evidence was insufficient to establish a causal relationship between any negligence of Dr. Harter and the damage caused to appellant by the empyema, if additional surgery was necessary to remove the sponge the appellant is entitled to recover the damages, if any, attributable to that surgery.

The appellee contends that no additional surgery was necessary since the exploratory operation was a more urgent matter than the removal of the sponge. By the same token it could be said that the exploratory operation was unnecessary since the exploration could have been carried out during the operation to remove the sponge. We think it was a question for the jury as to whether additional surgery was necessary to remove the sponge.

Appellee also contends that no evidence was introduced by the appellant at the trial as to the damage, if any, which resulted from the operation during which the sponge was removed.

There was evidence that an abdominal operation was performed during which the sponge was removed. That appellant suffered some pain, discomfort and mental anguish as a result of that operation is not a matter of pure speculation and under these circumstances the mere fact that the negligence of appellee, Harter, caused appellant to be subjected to an additional surgical procedure, if that finding is made by a jury, is sufficient to support a reasonable recovery for pain and suffering.

There was no evidence of liability on the part of the appellee Dr. Bowers, and the judgment dismissing the action as to him is affirmed.

The judgment dismissing the action as to the appellee, Harter is reversed with directions that appellant be granted a new trial as to him. On a new trial the jury will be instructed to find for the plaintiff if it is satisfied from the evidence that the last operation upon the plaintiff was necessary for the removal of the sponge.

The jury should be instructed that if it finds for the plaintiff it should award him such sum in damages as will reasonably compensate him for pain and suffering resulting from the last operation. If the evidence on the new trial is sufficient to raise a jury issue as to loss of earnings, medical and hospital expenses and permanent impairment of his power to earn money resulting from the last operation alone, those issues should be submitted under proper instructions.

The evidence on the new trial will be limited to the issues of whether appellant was required to undergo additional surgery for the removal of the sponge and, if so, the damage which appellant sustained as a result of the additional surgery.

All concur except Stephenson, J., who dissents.


author: STERNBERG, Justice.

text:
    James R. YOCOM, Commissioner of Labor and Custodian of the Special Fund, Appellant, v. Lawrence Henry SEXTON et al., Appellees.
    Supreme Court of Kentucky.
    Feb. 20, 1976.
    Earl Cornett, Gen. Counsel, Dept, of Labor, Frankfort, Gemma M. Harding, Dept, of Labor, Louisville, for appellant.
    Ronald G. Polly, Polly, Craft & Asher, Whitesburg, for appellee Lawrence Henry Sexton.
   STERNBERG, Justice.

This is an appeal from a judgment of the Letcher Circuit Court affirming an award of the Kentucky Workmen’s Compensation Board which granted the claimant, Lawrence Henry Sexton, compensation for permanent and total disability. On appeal the Special Fund attempts to raise several issues, any one of which, if proven, would successfully preclude any liability on the Special Fund.

On February 12, 1974, counsel for appellant filed a brief with the board, which states as follows:

“Upon reviewing this case, Special Fund concedes that the claimant has silicosis and is. totally and permanently dis- ■ abled.

Claimant is entitled to benefits in the amount of $47.00 per week for a total of 425 weeks. This award should be prorated 75-25 between the Special Fund and the Defendant, employer respectively.”

The award of the board dated June 3, 1974, about which the appellant now complains, provides in part:

“1. Plaintiff is awarded and shall recover of the defendant, Special Fund, the sum of $47.00 per week for a period of 425 weeks in the aggregate from November 20,1968, as permanent total disability benefits; together with interest at the rate of 6% per annum on all past due and unpaid installments of such compensation, and said defendant shall take credit upon this award for any such compensation heretofore paid plaintiff.”

This award is exactly and concisely in keeping with the concession made by the Special Fund, except as to the apportionment of the award, and that issue has not been raised on this appeal.

The concession of counsel for the Special Fund constitutes an admission of all of the facts necessary to a proper finding that claimant is entitled to an award of compensation and an apportionment of it to the Special Fund. The appellant will not be heard to admit liability and then on appeal to this court attempt to challenge liability on the same issues that liability had been admitted.

The judgment is affirmed.

All concur.


author: PER CURIAM.

text:
    James R. ALLEN, Commonwealth Attorney, et al., Petitioners, v. Ralph WALTER, Special Judge Floyd Circuit Court, Respondent.
    Supreme Court of Kentucky.
    Feb. 20, 1976.

      James R. Allen, pro se.
    Harold Stumbo, County Atty., Prestons-burg, for petitioners.
   PER CURIAM.

This is an original proceeding in which a Commonwealth’s Attorney, acting with the acquiescence of the Attorney-General, seeks to prohibit the respondent, as special judge in a murder case, from entering an order reducing the charge to second-degree manslaughter and sentencing the defendant to a term of five (5) years in the penitentiary, KRS 507.040, 532.020(l)(b), over objection by the Commonwealth'.

The first question to be considered in this as in any other prohibition or mandamus case is whether the applicant has an adequate remedy by appeal. If so, and if the respondent is acting within the scope of his jurisdiction, then of course the respondent is entitled to be let alone, to exercise his power as he sees fit until he is through with the case, because if what he does is wrong it can be undone in due course and in the same manner applicable to any other case. Anyone with a rudimentary understanding of the administration of justice understands of course that if every action taken or about to be taken by a trial judge were made subject to day-to-day supervision by an appellate court the result would be chaos. We take the time here to recite this elementary principle not because we suspect that any of the parties to the case may not be aware of it, but because the exhibits before us suggest that the local press in Prestonsburg, Kentucky, either is in the dark or, if it is not so benighted, prefers noise first and facts later.

It has been the petitioner’s assumption here that an appeal by the Commonwealth would be limited to a certification of the law, for which reason it would not be an adequate remedy. Since the law on the subject of double jeopardy has not been entirely clear, and we have some new law respecting the Commonwealth’s right of appeal, we are not disposed to criticize that assumption, but we do think it is not well taken.

Considering a 1970 amendment of the Criminal Appeals Act, 18 U.S.C. § 3731, the United States Supreme Court in Serf ass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265 (1975), reiterated the principle that under the Double Jeopardy Clause of the Fifth Amendment “jeopardy attaches when a jury is empaneled and sworn. . . . In a nonjury trial, jeopardy attaches when the court begins to hear evidence . . . . The Court has consistently adhered to the view that jeopardy does not attach, and the constitutional prohibition can have no application, until a defendant is ‘put to trial before the trier of facts, whether the trier be a jury or a judge.’ ”

It was observed also (420 U.S. at p. 387, 95 S.Ct. at p. 1062) that the clear purpose of 18 U.S.C. § 3731 was to authorize an appeal by the United States “so long as further prosecution would not be barred by the Double Jeopardy Clause.”

It has been well settled in this state that jeopardy does not attach until a jury has been sworn. Baker v. Com., 280 Ky. 165, 132 S.W.2d 766, 767, 125 A.L.R. 691 (1939); Const. § 13.

So also has KRS 21.140(3) been construed as intending to allow the Commonwealth an appeal for purposes of a reversal when it will not subject the accused to double jeopardy. Commonwealth v. Devine, Ky., 396 S.W.2d 60, 61 (1965). And since the last-cited case was decided two new subsections have been added to KRS 21.140, one of which reads as follows:

“(4) When an appeal is taken pursuant to subsection (3), the Court of Appeals, if the record so warrants, may reverse the decision of the circuit court and order a new trial in any case in which a new trial would not constitute double jeopardy or otherwise violate any constitutional rights of the defendant.”

Ordinarily a guilty plea is a waiver by the defendant of his right to a trial. The point is relevant here because if an irrevocable waiver has been effected that too might very well place him in jeopardy. The record discloses that the trial court did interrogate the defendant to ascertain if he fully understood the significance of a guilty plea and if it was voluntary, after which the plea was orally accepted. RCr 8.10 provides that at any time before judgment “the court may permit the plea of guilty to be withdrawn and a plea of not guilty substituted.” This provision would appear to connote, though we have not so held, that a voluntary plea of guilty, once made, cannot thereafter be withdrawn as a matter of right. On the other hand, it could scarcely be gainsaid that the plea in this instance was made with the understanding that the charge could and would be reduced to manslaughter, so that if it be held that the charge cannot be so reduced it must follow that the plea was not “voluntary” in a constitutional sense. And that is exactly what we do hold. Hence there was no waiver of the defendant’s right to a trial by jury, he was not in jeopardy, and the proposed order of the trial court under KRS 21.140(3) is reversible on appeal.

There is yet another reason for holding that the plea of guilty was not a waiver. It is elementary that a court of record speaks only through its records. An order is not an order until it is signed. Until then the judge can change his mind and not enter it. The order of the trial court that is under attack here has not been signed, hence the guilty pléa has not been officially accepted. In this status the defendant is as free to withdraw it as the trial court is to accept or reject it.

The basis for our opinion that without consent of the Commonwealth a trial court may not before a trial amend or reduce to a lower degree the charge brought against a defendant is that it is not the prerogative of a court to choose what the accusation will be. Only after the evidence is in does the court have a comparable function, which comes in the form of determining what the instructions to the jury will be, and that determination must be made according to the sufficiency of the evidence under the law.

It follows, of course, that the Commonwealth has an adequate remedy in this case and that prohibition is not strictly necessary. Nonetheless, as in Wiglesworth v. Wright, Ky., 269 S.W.2d 263, 266 (1954), we recognize that the existence of an effective right of appeal under the circumstances has not been clear. Moreover, the record shows that the incident on which the indictment is based took place several years ago, and the interests of justice require that the matter be resolved without further delay. For these extraordinary reasons we think the petition for prohibition should be granted.

The temporary order of prohibition entered on January 14, 1976, is now made permanent, and the respondent is prohibited from entering without consent of the Commonwealth any pretrial order having the effect of reducing the charge stated in the indictment against the defendant or defendants in the case of Commonwealth of Kentucky v. Eddie Jones and Agnel Jones, Indictment No. 4077, pending in the Floyd Circuit Court.

All concur.

      . KRS 505.030(4), part of the new Kentucky Penal Code, contemplates that jeopardy attaches when the first witness is sworn, as distinguished from the swearing of the jury. We need not in this proceeding, however, pursue the ramifications of that distinction.