author: NEARN, Judge.

text:
    TRANSAMERICA INSURANCE COMPANY, Appellant-Appellee, v. E. E. PARROTT and Gulf Insurance Company, Appellees, W. R. Davis et al., Appellees-Appellants.
    Court of Appeals of Tennessee, Western Section.
    July 17, 1975.
    Certiorari Denied by Supreme Court Dec. 1, 1975.

      G. W. Morton, Jr., Knoxville, for Trans-america Ins. Co.
    Glen R. Claiborne, Knoxville, for E. E. Parrott.
    Jerry A. Farmer, Knoxville, for Gulf Ins. Co.

      L. Caesar Stair, III and Bernard E. Bernstein, Knoxville, for W. R. Davis and Davis Mfg. Co.
    William N. Groover, Knoxville, for James E. Taylor.
   NEARN, Judge.

This is a declaratory judgment suit to determine the rights and liabilities of various parties under policies of automobile liability insurance.

Transamerica Insurance Company through its agent, James E. Taylor, issued a policy of liability insurance insuring a truck owned by E. E. Parrott. Later a substituted truck was leased by Parrott to Davis Manufacturing Company. While under lease and being driven by W. R. Davis, an employee of Davis Manufacturing Company but not related to the principal of Davis Manufacturing Company, the leased truck was involved in a collision in Independence, Missouri with another vehicle. At the time of the collision W. R. Davis and Davis Manufacturing Company were “insureds” under a policy issued by Gulf Insurance Company to Davis Manufacturing Company.

Litigation is pending against W. R. Davis and Davis Manufacturing Company by the occupant(s) of the other vehicle involved in the Independence, Missouri collision. That pending litigation is in another Court in another state and forms no part of this case except that it is the impetus which propels this action.

Sometime after Transamerica received knowledge of the Missouri collision it filed its complaint for declaratory judgment in the Chancery Court of Knox County. The original complaint alleged that plaintiff had issued its policy of insurance to E. E. Par-rott as the named insured and that Parrott had leased the insured truck to Davis Manufacturing Company whose servant was driving the truck at the time of the Missouri collision. The complaint further stated that plaintiff was informed that the defendant Taylor, its agent, had information that Parrott had leased to Davis Manufacturing Company, but failed to make any endorsement or notify plaintiff of the lease agreement with Davis Manufacturing Company.

Plaintiff maintained that its policy afforded no coverage because the policy as written and as intended afforded coverage only on the vehicle while used by Parrott in hauling for the Gilbert Hodges Candy Company and then only on those occasions which fall outside the exclusionary clause of the policy contained in the “local truckman” endorsement which is as follows:

“If regular or frequent trips are made outside a fifty mile radius of the limits of the city or town where the automobile is principally garaged as stated in the declarations, the insurance does not apply to any accident which occurs during any such trip or, return therefrom.”

The complaint also charged that unknown to plaintiff, the truck was not used by Parrott to haul for Gilbert Hodges Candy Company, but was leased to Davis Manufacturing Company for regular and frequent trips beyond the 50 mile limits of Knoxville and that Independence, Missouri is more than 50 miles from Knoxville.

Plaintiff also averred that if it was in error in its position of no coverage for Parrott, the questions then arose as to whether or not coverage extended beyond the named insured to driver Davis and Davis Manufacturing Company and if so, then, whether or not plaintiff’s policy would be deemed to provide pro rata coverage with the general liability policies of Davis Manufacturing Company.

The complaint also raised the issue of the defendant Taylor’s obligation or liability to plaintiff in the event plaintiff must suffer because of its agent’s failure to communicate information to the principal.

By an amended complaint Gulf Insurance Company, the general liability carrier for Davis Manufacturing Company, was brought into the matter.

Parrott answered to the effect that when the truck in question was leased to Davis Manufacturing Company all pertinent facts including the use to be made of the truck were disclosed to the agent Taylor and Par-rott requested that liability limits be increased from $10,000/20,000 to $100,-000/300,000. Further, that an endorsement increasing liability was issued and in the policy issued to Parrott the reference to the radius from the place the vehicle was garaged was left blank so as to read “ — outside of a_mile radius—

Having made a full disclosure to plaintiff’s agent and the policy containing no mileage restriction Parrott was of the opinion that Transamerica’s policy afforded coverage and prayed the Court to so declare.

The defendants W. R. Davis and Davis Manufacturing Company answered and averred that prior to the Missouri collision they had been informed that Parrott had insurance, but they had no present knowledge of the name of the carrier or type of insurance he had and had no knowledge of the dealings between Taylor and Parrott. However, both Davis and Davis Manufacturing Company were of the decided opinion that whatever kind of insurance Parrott had, it afforded coverage to them.

The answer of Gulf complements that of W. R. Davis and Davis Manufacturing Company in that it too alleges that the Trans-america policy affords coverage to Davis and Davis Manufacturing Company. Further, while admitting that it is the carrier of liability insurance for Davis Manufacturing Company, Gulf denied it was obligated under its policy to Davis pro rata with Transamerica or otherwise.

In his answer Taylor admitted that he had been requested by Parrott to issue new endorsements showing the truck to be leased to Davis Manufacturing Company and naming it as lessee and increasing the liability coverage. Taylor averred he communicated this information to his principal which issued endorsements increasing coverage limits, but the new endorsements still showed Parrott as insured with no mention of Davis Manufacturing Company. It was further alleged that, in truth, Transamerica knew that the vehicle was leased to Davis Manufacturing Company because prior to the Missouri collision it had paid a claim arising out of a collision in Kentucky when ' the Davis Manufacturing Company was operating the vehicle.

After hearing all the proof the Chancellor found that Parrott had made a full disclosure to Taylor, the Transamerica agent, and that Taylor had failed to communicate all of the disclosed information to his principal and had failed to send to Parrott the “local truckman” endorsement as issued by Trans-america so that Parrott had in his possession an unrestricted commercial use endorsement. Further, that since Taylor failed to send a copy of the proper endorsement issued by Transamerica to Parrott, the insured had no knowledge that coverage had not been written as requested and agreed upon between Parrott and Taylor. Based upon this finding, the Chancellor concluded that the acts of Taylor were binding upon Transamerica and therefore held that coverage was afforded Parrott as requested, i. e., the Transamerica policy afforded coverage to Parrott, W. R. Davis and Davis Manufacturing Company. The Chancellor further held that Taylor was liable to Transamerica for his errors and omissions and ordered Taylor to indemnify Trans-america for any loss it might suffer because of its liability under its policy.

The Chancellor also found that W. R. Davis and Davis Manufacturing Company had failed to give notice of the accident to Gulf as soon as practicable as required by the Gulf policy. Therefore, Gulf was not obligated under its policy with Davis Manufacturing Company and the suit was dismissed as to Gulf.

The Assignments of Error of Transameri-ca are as follows:

“1. The trial court erred in holding that Transamerica Insurance Company owed a duty to defend and obligation to pay any judgment rendered against Davis Manufacturing Company and W. R. Davis.
“2. The trial court erred in .holding that the Gulf Insurance Company had no duty to defend nor any obligation to pay any judgment against the driver W. R. Davis.
“3. The court erred in failing to hold that Transamerica Insurance Company and Gulf Insurance Company had concurrent coverage as to E. E. Parrott, and in event that Assignment of Error No. 1 is overruled, in failing to hold that Gulf Insurance Company and Transamerica Insurance Company have concurrent coverage for W. R. Davis, the driver of the vehicle.”

The Assignments of Error of Taylor are:

“1. The trial court erred in holding that the defendant, James E. Taylor, owed indemnity to Transamerica Insurance Company.
“2. The trial court erred in holding that Gulf Insurance Company was relieved from any liability under it’s policy because Davis Manufacturing Company and/or W. R. Davis failed to give timely notice to Gulf Insurance Company.”

W. R. Davis and Davis Manufacturing Company have but a single Assignment of Error which is as follows:

I.
“The trial court erred in holding that Gulf Insurance Company was relieved of any liability under its policy because Davis Manufacturing Company and W. R. Davis gave Gulf notice ‘as soon as practicable’.”

Gulf and Parrott are content with things as they are and make no complaint.

In August of 1971 Parrott owned a 1967 Ford truck and a 1963 Ford truck. At that time the 1967 Ford truck was being used on a leased basis with Davis Manufacturing Company and was insured by an insurer other than Transamerica (INA) with no mileage limit radius. The 1963 Ford truck was being driven by Parrott while hauling goods on a part time basis for Gilbert Hodges Candy Company and was also being used on personal matters such as driving to and from his regular place of employment. The 1963 Ford truck was not leased to Gilbert Hodges Candy Company but Parrott was hired with his truck to haul for the Gilbert Hodges Candy Company approximately three days per week. The 1963 Ford truck was insured by Transamerica for the policy period August 9, 1971 to August 9, 1972.

Initially, Parrott received from Taylor the Transamerica policy with a commercial use endorsement with the mileage radius therein left blank. No mention was made in the policy of the Gilbert Hodges Candy Company.

Taylor had authority to issue policies and endorsements binding Transamerica until rejected by Transamerica. Upon receipt by the company of a copy of the policy issued by Taylor, Transamerica ran a credit report and found that Parrott was using the 1963 Ford truck on a part time business basis hauling exclusively for Gilbert Hodges Candy Company within the City of Knoxville and its environs. Transamerica caused to be issued a local truckman endorsement limiting coverage to when hauling specifically for Gilbert Hodges Candy Company and while within 50 miles of Knoxville. Also, a premium computation error was discovered and additional premium was required. This endorsement was forwarded to Taylor by Transamerica for transmission to the insured Parrott. Taylor 'failed to send the endorsement to Parrott but did bill Parrott for the increased premium which was paid.

About February 1972 Parrott purchased a 1969 Chevrolet truck and advised Taylor of the purchase and the fact that the 1969 Chevrolet truck would be leased to Davis Manufacturing Company in lieu of the 1967 Ford that was then being leased and used by Davis Manufacturing Company and insured by INA. Parrott requested the same type of coverage on the 1969 Chevrolet that he had under the INA policy with increased coverage of $100,000/300,000. A full disclosure by Parrott had previously been made to Taylor of his arrangements with Davis Manufacturing Company. Parrott made no specific request as to which company was to insure the 1969 truck, but simply requested coverage which Taylor agreed to obtain.

About the same time the 1963 Ford truck was sold and the record is unclear as to whether or not Parrott continued hauling for Gilbert Hodges Candy Company. The record is also unclear as to what happened to the INA policy or what happened to the 1967 Ford truck in relationship to the INA policy. But, for some reason, which again is not made clear in the record, Taylor sought to obtain the desired coverage for Parrott under the Transamerica policy. Endorsements were issued by Transamerica substituting the 1969 Chevrolet for the 1963 Ford and increasing coverage to $100,-000/300,000. Taylor did not advise Trans-america that the vehicle was leased to Davis Manufacturing Company so that no new endorsement was issued which would indicate a change of use from a hauling operation for Gilbert Hodges Candy Company to a lease arrangement with Davis Manufacturing. (Parrott being unaware of the first endorsement.)

Taylor sent the endorsement changing vehicles and limits to Parrott which he received.

Parrott’s lease agreement with Davis Manufacturing Company provided that Par-rott must carry insurance on the vehicle. Parrott displayed his Transamerica policy and endorsement to Davis Manufacturing Company and it accepted the 1969 truck.

At this point in time Parrott had in his possession a commercial liability and comprehensive policy insuring the 1969 Chevrolet truck to limits of $100,000/300,000 with no limitations as to use or mileage radius and had no knowledge that any restrictive endorsements had been issued by Trans-america.

On or about July 27, 1972, during the Transamerica policy period, the 1969 Chevrolet truck, while being driven by the servant of Davis Manufacturing Company, was involved in a collision near Independence, Missouri which resulted in injuries to others. It is stipulated by the parties that possible negligence of the Davis driver is an open and serious question.

To this point our foregoing finding of facts is essentially the same as that of the Chancellor. For the sake of clarity and facility in treating all the Assignments of Error we think it best to here consider the Assignments of Error dealing with the Chancellor’s holding regarding liability of Transamerica and Taylor. Gulf’s position is dependent upon other distinct and separate facts which will be presented in their place.

It is conceded as it must be by counsel for Transamerica that the failure of Taylor to properly communicate the “truck-man local” endorsement to the insured Par-rott, did not affect Parrott’s rights under the policy. Therefore the named insured had a policy which to him was unrestricted as to mile radius and not limited to use for a single business. See Henry v. Southern Fire and Casualty Company (1959 W.S.), 46 Tenn.App. 335, 330 S.W.2d 18; T.C.A. § 56-705.

However, it is argued that although Par-rott was insured because of Taylor’s error or misrepresentation, that liability of Transamerica to Parrott which is beyond the actual terms of the policy does not extend to one (Davis Manufacturing Company) to whom Taylor made no representation. We hold this argument to be without merit. The loss would ultimately fall upon Parrott because of Taylor’s error and not Davis Manufacturing Company. If Parrott had not been presented with a policy by Taylor which in effect insured Davis Manufacturing Company he would have failed to comply with this contract with Davis to furnish insurance and would have breached that contract which would, in turn, render Parrott liable to Davis Manufacturing Company. The loss would be that of Parrott caused by the misrepresentation to him by Transamerica acting through Taylor. Par-rott paid a premium and was assured that he had insurance to cover his truck while being used by Davis Manufacturing Company. We hold, as did the Chancellor, that is what he got.

The Assignments of Error directed to the Chancellor’s holding that Transamerica was bound under its policy to Davis and Davis Manufacturing Company are overruled.

It is Taylor’s position that he should not be held liable to Transamerica because an insurance agent is not liable to his principal if the loss would have occurred even if the instructions had been obeyed, citing Virginia Surety Company v. Lee (1964 W.S.), 55 Tenn.App. 501, 402 S.W.2d 714. The proposition is tendered that the most he would be liable for is some increased premium.

Further, it is argued that prior to the Missouri collision the 1969 Chevrolet truck was involved in a collision with a light meter in Lancaster, Kentucky while being driven by the servant of Davis Manufacturing Company and therefore Transamerica was aware or should have been aware of the true status of the 1969 Chevrolet. Therefore, Taylor cannot be held liable for failing to disclose what was already known or should have been known.

The Virginia Surety Company case, supra, affords no shelter to Taylor. The proof is undisputed that Transamerica has not and will not insure any vehicle which is leased to another. It has and does insure vehicles which are used by the owner or his servant in hauling goods. On occasions it has insured long-haul operations so long as they are owner operated, but it is the policy of the company never to insure leased vehicles. This being true, Transamerica would never have issued the policy in the first place had they known the true situation.

The argument that the Lancaster, Kentucky collision somehow placed Transameri-ca on notice of the true situation is without merit. The damage to the meter occurring in Lancaster, Kentucky was in the amount of $102.47. Davis notified Parrott and Par-rott notified Taylor of the loss and the claim was forwarded to Transamerica by Taylor and was paid. The undisputed proof is that whenever Transamerica receives a loss not involving personal injuries, less than $400.00, it simply takes the word of the agent that there is coverage and makes no investigation of that issue. Again, Transamerica took the word of Taylor to its detriment. The Lancaster, Kentucky collision cannot be considered to have put Transamerica on notice. See and compare Williams v. Bankers Life Company (1972 Tenn.App.W.S.), 481 S.W.2d 386; Westchester Fire Ins. Co. v. McAdoo (1899), Tenn.Ch.App., 57 S.W. 409.

The first Assignment of Error of Taylor is overruled.

We now address ourselves to the issue of the Chancellor’s holding regarding Gulf Insurance Company.

Gulf’s policy provides that notice of accident must be given “as soon as practicable”. From the proof the Chancellor concluded that Gulf was not liable because, as he stated, “late notice” was given Gulf by Davis Manufacturing Company and the burden of showing “no prejudice” to Gulf was upon Davis Manufacturing Company and there was no proof to show that Gulf was not harmed by the delay in reporting. We are of the opinion the Chancellor was in error in his conclusion and holding in this regard.

In order to determine whether notice was given “as soon as practicable” some understanding of the term as well as the manner in which it should be construed must be established as a premise. We are of the opinion the case of Young v. Travelers Insurance Company (5th Cir. 1941), 119 F.2d 877, adequately sets forth the premise as follows:

“The time words in the clause, ‘as soon as practicable’ are not words of precise and definite import. They are roomy words. They provide for more or less free play. They are in their nature ambulatory and subject under the guiding rule, to the impact of particular facts on particular cases. They do not in terms require immediate notice or notice within a particular number of days. They may not be so construed. They do not even provide for notice ‘as soon as possible.’ In terms, they require notice ‘as soon as practicable’ and they must be construed as requiring the notice within a reasonable time under all the circumstances, to effectuate the objects and purposes of the notice clause.”

When that duty of an insured to notify “as soon as practicable” arises has been described in Osborne v. Hartford Accident and Indemnity Co. (1972 M.S.), 63 Tenn.App. 518, 476 S.W.2d 256, as follows:

“It is also elemental that the duty to notify does not arise until an ordinarily or reasonably prudent man would have known (c) of the occurrence of the event and (d) that the event might reasonably be expected to produce a claim against the insurer.”

With these principles in mind we examine the facts as they undoubtedly appeared to Davis Manufacturing Company at the time of the Missouri collision.

Davis Manufacturing Company had in its possession a lease agreement with Parrott which stated Parrott would carry the liability insurance on vehicles leased to Davis Manufacturing Company. Also, Davis Manufacturing Company had in its possession a policy of insurance issued by Gulf which provided inter alia, “with respect to a hired automobile or a non-owned automobile, this insurance shall be excess insurance over any other valid and collectible insurance available to the insured.”

Prior to the Missouri collision, the leased truck had been involved in a minor one vehicle accident wherein the truck struck a light meter belonging to Kentucky Utilities Board in Kentucky while being driven by the servant of Davis Manufacturing Company. Davis Manufacturing Company notified Parrott of the accident, and Trans-america handled the claim and paid for the damage to the meter. Davis Manufacturing Company did not notify Gulf of this accident.

After the Missouri accident, the Davis driver reported to Davis Manufacturing Company that a relatively slight accident occurred in Missouri. Davis Manufacturing Company again notified Parrott, who notified Transamerica through Taylor, which insurance company came upon the premises of Davis Manufacturing Company, examined the leased vehicle and paid for its repairs.

Davis Manufacturing Company heard no more about the matter until late August or early September 1972 when Parrott, in a conversation with a superior at Davis Manufacturing Company advised that there seemed to be some difficulty with Trans-america over the liability policy as something was being said about Transamerica not being liable for trips outside of a 50 mile radius of Knoxville. Davis Manufacturing Company asked Parrott to bring over his policy and let it be examined by a corporate officer. This was done and, of course, no radius limitation could be found as none existed in the policy that had been given Parrott. Being satisfied, Davis Manufacturing Company took no further action.

Nothing further was heard about any question of liability coverage until about November 14, 1972, when Davis Manufacturing Company was contacted by a representative of Transamerica who expressed doubts as to coverage. On or about November 15, 1972, Davis Manufacturing Company received written notice from Transamerica that its policy afforded no coverage to Davis Manufacturing Company or W. R. Davis. This letter was immediately forwarded to the agent of Gulf. This was the first notice given to Gulf.

Under all the circumstances, we hold that this notice was given as soon as practicable.

The term “practicable” not only means reasonable, but has the additional connotation of what might be termed common or “horse” sense. Being practicable about a matter means eliminating the purely formal or useless acts which serve no real or valid purpose. Davis Manufacturing Company was armed with a policy which contained a statement by Gulf to the effect that in those accidents in which leased vehicles are involved you will have no claim against us unless (a) the leased vehicle is uninsured or (b) if insured, only for so much as exceeds the existing insurance.

We would note at this point that we do not find any aggrieved party to this litigation insisting or intimating that the liability claim arising out of the Missouri collision will exceed the Transamerica limits.

We hold, as did the Middle Section of this Court in Osborne, supra, that in situations such as this, the insured is obligated to notify the insurer “as soon as practicable” from the time the insured knew or should have known that the event for which coverage is sought might reasonably be expected to produce a claim against the insurer.

We further hold that Davis Manufacturing Company did notify Gulf as soon as practicable. Therefore, the issue of prejudice or lack thereof is not germane.

We also hold that one notice given as soon as practicable is sufficient. We say this because it has been argued that because W. R. Davis, the employee driver of Davis Manufacturing Company, did not give notice, no coverage is afforded him. The purpose of the notice in question is to give the insurer notice of the accident so that it may be investigated. Once this has been done other notices are supererogatory.

Now, having ruled that Gulf is liable under its policy, we must determine in what manner, that is, in excess or on a pro rata basis. This issue is not difficult for us to decide as it has been previously decided by our Supreme Court in the case of Continental Ins. Co. v. Insurance Co. of No. America (1970), 224 Tenn. 306, 454 S.W.2d 709, which is on “all fours” with this case. We hold Gulf liable on a pro rata basis.

As in the Continental case, supra, both Parrott and Davis Manufacturing Company have separate policies which afford them coverage on their own vehicles. Each policy provides for coverage in case of permissive use. Each policy attempts to provide “excess only” as to non-owned vehicles. Neither policy affords unconditional primary coverage. Each attempts to restrict liability where “other insurance” is available. When such is the case the “other insurance” clauses are repugnant and will be disregarded and the loss pro rated. Also see State Farm Mutual Insurance Co. v. Taylor (1974 Tenn.), 511 S.W.2d 464.

The Assignments of Error directed to the Chancellor’s dismissal of Gulf are sustained.

The result is that the decree below is affirmed except as herein modified.

Costs below and in this Court are adjudged equally between Taylor and Gulf.

CARNEY, P. J., and MATHERNE, J., concur.

      . T.C.A. § 56-1164 has no application to this case as it applies to policies issued or renewed subsequent to May 7, 1973.


source: Caselaw Access Project

author: MATHERNE, Judge.

license: Public Domain

text:
    Juanita KARAS, Plaintiff-Cross Defendant-Appellant, v. Kathleen THORNE, Defendant-Cross Plaintiff-Appellee, v. Inez WHEATLEY, Cross Defendant-Cross Plaintiff-Appellee.
    Court of Appeals of Tennessee, Western Section.
    Aug. 27, 1975.
    Certiorari Denied by Supreme Court Dec. 30, 1975.
    Charles S. Kelly, Dyersburg, for appellant.
    Elam, Glasgow, Tanner & Aeree, Union City, Homer Bradberry, Dresden, for appel-lees.
   MATHERNE, Judge.

In this personal injury lawsuit the plaintiff appeals from a jury verdict and judgment entered thereon in her favor in an amount less than proven medical expenses. The assignments of error are not clearly stated, but we assume the plaintiff insists: (1) the jury, having found liability in the defendant, had to award the plaintiff some amount for pain and suffering; (2) the jury discounted unrebutted evidence of medical expenses; and (3) the trial judge should have granted an additur or a new trial.

I.

The lawsuit involves an automobile collision wherein the plaintiff Karas was driving the Wheatley automobile which collided with the automobile owned and driven by the defendant Thorne. The defendant Thorne answered and counterclaimed against Karas and filed a cross-complaint against Wheatley. Whereupon Wheatley filed an answer and counterclaimed against the defendant and cross-plaintiff Thorne.

The jury rendered a verdict in favor of Karas against Thorne for $200 as damages for personal injuries, and in favor of Wheatley against Thorne for $227.47 as property damage. In the case of Thorne against Karas and Wheatley the jury held for the defendants.

Property damage to the Wheatley vehicle was the exact amount of the verdict, $227.47. The plaintiff Karas proved medical expenses of $752.43, and she testified she had an actual loss of wages of $4,000.

II.

The accident occurred on November 27, 1972, at the intersection of University Avenue with Lovelace Street in the city of Martin, Tennessee. The intersection is controlled by an electrical traffic signal. The plaintiff was traveling west on University and the defendant south on Lovelace. Each party claims the traffic signal gave her the green signal at the time of entry into the intersection. The front grill of the Thorne vehicle struck the right rear corner of the Karas vehicle.

The plaintiff Karas claims she was driving 10 to 15 miles per hour at the time, but she varied that testimony somewhat in her pre-trial discovery deposition. The defendant Thorne stated the plaintiff was driving at a high rate of speed, and immediately after the collision made the statement that her brakes did not hold. The plaintiff denied the statement.

Three days after the accident the plaintiff saw a Dr. Phillips, who gave her some medication and told her to go back to work. The plaintiff worked at a laundromat, and she did return to work but stated she could not continue to work after about January 2, 1973. She stated she tried to work as a waitress, but could not hold up physically. The plaintiff claims loss of earnings of $50.00 per week for 30 months, or $4,000.

The plaintiff saw Dr. Barnett, an orthopedic surgeon of Jackson, Tennessee, on January 2, 1973. Dr. Barnett gave her drugs for pain, drugs for a menopausal condition, prescribed a shoulder brace, a lower back corset and a collar for the cervical area. Dr. Barnett stated the plaintiff suffered pain, and on the issue of permanency of the injury testified: “I felt that she had aggravated an arthritic condition in her neck which would cause a permanent condition and give her some pain and discomfort for a rather indefinite period of time.” Dr. Barnett had seen the plaintiff 21 times, and she was still under his care at the date of trial.

After the accident, on a date the plaintiff did not remember, the plaintiff married and moved to Gary, Indiana. She separated from her husband on January 3, 1974, and returned to Tennessee shortly thereafter. It seems the plaintiff makes regular or frequent trips to Chicago to see a doctor about some physical ailment unrelated to the accident.

III.

There is no fixed rule in this state that the amount of damages awarded in a personal injury lawsuit must equal or exceed the proven medical expenses incurred. In Flexer v. Crawley, 37 Tenn.App. 639, 269 S.W.2d 598 (1953), the Court quoted a statement from 20 A.L.R.2d 276, wherein the annotator commented: “Cases in which the damages awarded, in a personal injury action, amounted to even less than the amount of plaintiff’s undisputed medical expenses are not within the scope of this annotation, it being obvious that such verdict is inadequate.” We note, however, the Court in Flexer did not reach its decision based upon an application of the above statement as the law governing the case.

This Court in Flexer applied the established rule in this state that when the issue, in a personal injury lawsuit, is the inadequacy of the verdict, this court will weigh the evidence, not to determine the mere preponderance, but to determine whether the evidence so greatly preponderates against the amount awarded as to show passion, prejudice or unaccountable caprice on the part of the jury. Kent v. Freeman, 48 Tenn.App. 218, 345 S.W.2d 252 (1960). This Court will also reverse if from the proof the compensation awarded is so grossly inadequate, and so disproportionate to the injury sustained as to shock the conscience of the court. Transports, Inc. v. Perry, 220 Tenn. 57, 414 S.W.2d 1 (1967). See also: McCullough v. Johnson Freight Lines, 202 Tenn., 596, 308 S.W.2d 387 (1957); Smith v. Uffelman (Tenn.App.1973), 509 S.W.2d 229. Each appeal presents its own factual situation to be decided by the court under the rules above stated, plus the rule the amount of damages to be awarded is primarily a question for the jury and a jury verdict approved by the trial judge is entitled to great weight in this Court. Lunn v. Ealy (Tenn.1940), 141 S.W.2d 893; Reeves v. Catignani, 157 Tenn. 173, 7 S.W.2d 38 (1928).

In Crutcher v. Davenport, 55 Tenn.App. 413, 401 S.W.2d 786 (1965), this Court, opinion by Judge Bejach, followed the rules above announced and under the record refused to hold as inadequate a verdict, approved by the trial judge, in the exact amount of proven medical bills. And, in Crutcher the Court observed the defendants admitted liability in open court, and there was no issue of remote contributory negligence before the jury.

The case cannot be cited as authority, but this Court in Jones et al. v. Smith, opinion filed at Jackson on January 23, 1975, no petition for certiorari, held the amount of the verdict in a personal injury lawsuit need not at least equal proven medical expenses.

IV.

The fact a given amount is proven as undisputed medical expenses does not prove those expenses were necessary. The jury has the duty to weigh the testimony and to give to each witness that degree of credibility it deems proper. When that credibility is established and reflected in a verdict which is approved by the trial judge, appellate courts must give great weight to the decision.

From the entire record we hold the jury could have well concluded the plaintiff was not injured to the extent she claimed. The jury could have found the plaintiff guilty of remote contributory negligence, and thus reduced the amount of the verdict.

We therefore conclude, from a review of the entire record, the verdict for the plaintiff is not so inadequate as to show passion, prejudice or unaccountable caprice on the part of the jury, nor is the verdict so grossly inadequate as to shock the conscience of the court. Absent a finding of inadequacy to such an extent as stated by one or both of the above rules, we have no authority to impose our will over that of the jury and the trial judge, as to the amount of the verdict.

It results all assignments of error are overruled and the judgment of the trial court is affirmed. The cost of this appeal is adjudged against the plaintiff-appellant Karas.

CARNEY, P. J., and NEARN, J., concur.


author: PER CURIAM.

text:
    Randy CHICK et al., Petitioners, v. Linda CRAVENS, Executrix, Respondent.
    No. B-5406.
    Supreme Court of Texas.
    Oct. 1, 1975.
    Stark & Barnhart, Richard S. Stark, Julian J. Smith, Gainesville, for petitioners.
    Henry & Hatcher, Jim J. Hatcher, John Atchison, Gainesville, for respondent.
   PER CURIAM.

The application of Randy Chick, et al., for writ of error is refused, no reversible error. In taking such action, we do not necessarily approve the holding that the testamentary nature of the codicil to the will was a question of fact. The respondent, Linda Cravens, Executrix, did not file an application for writ of error seeking rendition of judgment rather than a remand.


author: STEAKLEY, Justice.

text:
    Carie E. WELCH et al., Petitioners, v. Eugene STRAACH et al., Respondents.
    No. B-5205.
    Supreme Court of Texas.
    Nov. 5, 1975.

      Spafford, Gay & Whitham, James C. McCoy and Warren Whitham, Dallas, for petitioners.
    Passman, Jones, Andrews, Coplin, Holley & Co., Ronald M. Holley, and Richard E. Young, Stanford & Dunaway, DeWitt 0. Dunaway, Dallas, for respondents.
   STEAKLEY, Justice.

The problem here is whether the testamentary instruments in question devised the homestead to the surviving widow in fee simple determinable, or created only a life estate determinable. The testator, James Madison Welch was married twice, the second time to Effie Mae Welch on March 20, 1940. Welch executed a holographic will on September 18, 1945 which, as relevant here, reads:

“2. ... I will . . . unto my beloved wife, Mrs. Effie M. Welch, the homestead upon which we are living, together with all household and kitchen furniture, the family automobile, and such personal properties not otherwise specifically designated in this will, that may be then situated on said homestead.
“3. I will . . unto my beloved children . . the residue of my property . . ..”

Thereafter, the time not being shown by the record, Welch executed two holographic codicils designated “Supplement to Section 2” and “Supplement to Section 3.” The former is relevant here and reads as follows:

“Supplement to Sec. # 2.
“This homestead shall remain in her possession as long as she live and remains a widow, but upon marriage to another man, such homestead shall revert to the children or their heirs as named in this will.”

Welch died in November, 1951 and the will and two codicils were admitted to probate on the following December 18. Effie Mae Welch, his surviving widow, who has not remarried, occupied the homestead until October 27, 1970 on which date she conveyed the property to respondent Eugene Straach.

Thereafter this suit was filed by Carie E. Welch, et al., children of Welch by his first marriage. Their claim is that Effie Mae Welch was devised only a defeasible life estate in their father’s undivided one-half of the homestead, and that they were vested with the remainder in and to such interest. Their prayer was for judgment declaring the deed to Straach to be of no force and effect as to their interest, for removal of cloud upon their title, for an accounting of the rents and profits received by Straach and for a lien on the interest of Straach to such extent.

The trial was upon an agreed statement of facts. The trial court rendered a take-nothing judgment against Carie E. Welch et al. and in so doing did not reach the additional relief sought by them. The judgment of the trial court was affirmed by the Court of Civil Appeals, 518 S.W.2d 862. It was the view of the courts below that the words of the codicil are unclear and ambiguous and may not be given the effect of reducing the initial fee simple devise; thus, this estate was subject to reversion only in the event of the remarriage of the surviving widow. Our view is otherwise and so we reverse and remand.

This Court said in McMurray v. Stanley, 69 Tex. 227, 6 S.W. 412 (1887):

In construing the will, all its provisions should be looked to, for the purpose of ascertaining what the real intention of the testatrix was; and, if this can be ascertained from the language of the instrument, then any particular paragraph of the will which, considered alone, would indicate a contrary intent, must yield to the intention manifested by the whole instrument.

This Court has also on a number of occasions considered informal language used by a layman who did not have legal advice in drawing a will. We have said that in such instances the Court will not construe lay language technically but will do so liberally in the endeavor to arrive at the intent of the testator. Gilkey v. Chambers, 146 Tex. 355, 207 S.W.2d 70 (1947); Briggs v. Peebles, 144 Tex. 47, 188 S.W.2d 147 (1945); Huffman v. Huffman, 161 Tex. 267, 339 S.W.2d 885 (1960). These writings do not mean that the courts will redraft a lay will, but only that the intent of the testator reasonably manifested in the language he used will be enforced.

It is clear that Welch, the testator here, intended his codicil writing to disturb and alter the previous fee simple devise of the homestead. He drafted factors wholly absent from his original writing. It is equally clear that he did not intend to limit this change to the event of the remarriage of his wife since his first words were that “This homestead shall remain in her possession as long as she live.” These words were superfluous if Welch was writing only with respect to the remarriage of his wife; they may not be disregarded in the search for his intent when he wrote the codicil. The language he used indicates that Welch was thinking of the homestead in terms of use and occupancy, rather than in terms of a specific piece of property. The devise in the will speaks of “the homestead”; and the codicil speaks of his wife remaining in possession. No particular form of words is necessary to the creation of a life estate. Guilliams v. Koonsman, 154 Tex. 401, 279 S.W.2d 579 (1955). See also Taylor v. Taylor, 266 Ky. 375, 99 S.W.2d 201 (1936) in which the Court ruled that a life estate was created by language similar to that used by the testator here: “. . . I want my wife Mary F. Taylor, to have during her life and as long as she remains my widow, all my real estate . . ..”

We recognize the force of the rule invoked by the courts below and urged by respondents Straach, et al., that a fee simple devise will be enforced unless it is limited by express words. The words of the codicil did so here and all parts of the testamentary writings of Welch are to be harmonized and given effect in effectuating his intent. As expressed in Powers v. First National Bank of Corsicana, 138 Tex. 604, 161 S.W.2d 273 (1942), all rules of construction have been worked out by the courts to ascertain the intention of the testator and before it all such rules fall; and it is always permissible, in fact proper, to look beyond mere grammatical form to what may be termed the internal evidence of the writer’s intention.

The judgments below are reversed. As stated in the forepart of this opinion, there are other issues to be resolved under the pleadings of Carie E. Welch et al. The cause is therefore remanded to the trial court for further proceedings consistent with this opinion.


author: McGEE, Justice.

text:
    Joe H. GILL et al., Petitioners, v. STATE of Texas et al., Respondents.
    No. B-5206.
    Supreme Court of Texas.
    Nov. 5, 1975.

      Harkness, Friedman & Kusin, Harry B. Friedman, Texarkana, for petitioners.
    R. Clayton Hutchins, City Atty., Texar-kana, for respondents.
   McGEE, Justice.

This is an eminent domain case. The City of Texarkana, Texas, on behalf of itself and the State of Texas, instituted condemnation proceedings for the purpose of widening a highway and has since the beginning intended to take the entire house of the condemnees though only a portion of the structure rested on the land to be taken. The parties involved stipulated both to the regularity of such a method of proceeding, and to the condemnor’s right to take the condemned property. The initial statement in the proceeding named Joe H. Gill and wife, Lela Gill, together with several governmental subdivisions, as owners of the land in controversy. The trial court awarded the Gills $40,000 for the land and improvements taken based upon the jury’s answer to Special Issue No. 1. The court of civil appeals reversed that judgment and remanded the cause. 519 S.W.2d 514. In view of the facts presented in this case we reverse the judgment of the court of civil appeals and remand the cause to that court for further proceedings.

The realty appropriated contained an area of 2,322 square feet, was adjacent to the south side of U. S. Highway 82 and was off the north and east side of a 7,287 square foot lot situated at the southwest corner of the intersection of the highway and Cornell Street in the City of Texarkana.

The parties entered into a jury trial in the district court of Bowie County with the City and State as plaintiffs and the Gills as defendants. Three special issues were submitted to the jury and subsequently the trial judge granted the Gills’ motion to disregard the jury’s response to the second and third special issues relating to the value of the remainder. Based upon the jury’s answer to Special Issue No. 1 the trial judge awarded to the City and State the described strip of land, less certain minerals. The State was also given the temporary right to enter upon the property remaining for the sole purpose of removing the entire building. The Gills were allowed $40,000 as compensation for the land taken, together with the value of the entire house, less $10,065 earlier deposited in the registry of the court and previously drawn out by the Gills.

In reversing and remanding, the court of civil appeals was of the view that there was insufficient evidence to support the $40,000 jury award based upon their answer to Special Issue No. 1 since that issue could not have been properly answered due to the nature of the testimony in evidence. That court based its decision mainly upon the failure by the parties to tender evidence of the value of the strip taken, together with the improvements thereon, as a merged unit. The court stated that the testimony of the Gills’ witnesses went only to the independent and separate value of the land and similarly, to the independent value of the house as a separate unit. The court held that evidence of such a nature did not tend to prove the value of the merged unit.

The court of civil appeals attached significance to the fact that “[i]n the trial court the Gills offered proof of value as though the house was situated entirely upon the appropriated tract.” And, further, the court stated that the Gills tendered no direct evidence, and the State tendered only differing opinions, as to the enhancement effect, if any, the improvements had upon the realty. Because of the lack of such evidence the court reversed and remanded based upon insufficient evidence to support the jury’s answer to Special Issue No. 1.

The Gills, as petitioners, contend that the court of civil appeals used an erroneous formula or test in deciding this case and that such an erroneous conception of the law led to an improper result. They believe that in a case given the present fact situation that there was ample testimony upon which the jury could intelligently ascertain the market value of the land taken as influenced by the improvements thereon. The State agreed with the court of civil appeals that there was insufficient evidence as to the contributory value of the improvements on the land as they affected its market value. It is also their contention that the rulings of State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194 (1936), on rehearing 89 S.W.2d 979 (1936), were violated in this case because they believe the jury was allowed to add the values of the land and the house in arriving at its award.

In a condemnation action the general rule is that improvements on appropriated land, such as a building, are a part of the land. McGee Irrigation Ditch Co. v. Hudson, 85 Tex. 587, 22 S.W. 967 (1893). The value of such improvements may be proven for the purpose of showing the effect of the improvements upon the land’s value. State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194 (1936), on rehearing 89 S.W.2d 979 (1936). In the instant case there is testimony from a number of witnesses called by each side as to the value of the strip taken, and the value of the entire house appropriated. The court of civil appeals stated that no witness for the Gills directly testified as to the fair market value of the strip taken as influenced by the improvements thereon. We believe the majority of that court may have taken too narrow a view of the testimony offered regarding value. Because of the method of proceeding adopted by the State, it was necessary that the value of the house be considered as a whole initially, and then its value viewed as to its effect on the land taken. This type of valuation scheme was necessitated because the State proceeded to take the entire house although only a portion of it was situated on the strip of land they sought to condemn. Because of this, the witnesses initially considered the values of the land and the improvements separately in arriving at their ultimate conclusion as to market value. This fact alone will not destroy the probative value of their final conclusion as to market value and such testimony clearly does not violate the ruling of Carpenter. While Carpenter reveals that improvements on the land taken ordinarily have no market value separate from the land it further reflects that evidence as to the value of the improvements is admissible to show their effect on the value of the land itself. State v. Carpenter, supra; State v. Adams, 489 S.W.2d 398 (Tex.Civ.App.-San Antonio 1972, writ ref’d n.r.e.).

At the trial, Joe Gill as the landowner testified that the house was worth $20,000 and the land $30,000. The question was asked him: “Now what is the market value of the land, together with the improvements — that is the house?” He replied: “Well, I had in mind $50,000 on it.” In response to similar questions Mrs. Gill answered that the value of the land and the house at the time it was taken was $50,000. This question was preceded by a question inquiring if she had an opinion as to the value of the entire piece of property together with the house and improvements. Mr. Sam Hayes agreed that in his opinion the actual cash market value of the land taken, together with the house, would be $53,000 on August 14, 1973.

The State then called Mr. Dwayne Lem-mon, a Highway Department staff appraiser, who testified that in his opinion the value of the part taken, and the house, was $8,385. John Mugno, a real estate appraiser, also testified for the State that the value of all the improvements with the land taken came to $11,010. In each instance the witnesses were asked by the State to testify as to what dollar figure they had ascribed to the land value separately, and to the house independent of the land taken.

Though the essential questions could have been more artfully worded, we feel that the above testimony can be construed as equivalent to testimony as to the value of the land taken as affected by the improvements.

The State also complained of the method of the submission of special issues in the present controversy. Though the court of civil appeals never reached this question, in view of our ultimate holding, we should briefly discuss that point. In Carpenter, in its opinion on motion for rehearing when speaking to the manner of submission of special issues in such proceedings, the court stated:

“This opinion must not be construed as attempting to furnish an inflexible rule to be followed in all similar cases. . Fair and just compensation to the owner for the land condemned and for damages to the remainder is the end sought to be attained. We realize that this result cannot be reached in every case by following the general rules here outlined. If in the exercise of a sound discretion the trial court should find that just compensation, from the standpoint of the condemnor as well as the owner, cannot be arrived at without directing attention to specific items of damages, either by instructions or in special issues, such action need not necessarily be erroneous, so long as a double recovery is avoided and undue emphasis is not placed upon some specific item of damages or injury.” State v. Carpenter, 126 Tex. 604, 89 S.W.2d 979, 981 (1936).

In the original Carpenter opinion the court also said:

“Without intimating that this method should be followed in all like cases, we believe it will furnish a practical method of submission in most similar cases.” State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, 201 (1936).

The court in Carpenter never intended to establish inflexible rules regarding submission of issues regardless of the nature of the case. The court expressly realized that the factual pattern presented might vary the application of those guidelines. Such an outlook has been confirmed recently by this court in the case of C. T. Uselton v. State, 499 S.W.2d 92 (Tex.1973). In that decision the court realized that the con-demnee must have an opportunity to receive just compensation even if the Carpenter approach must be slightly varied.

Nevertheless, it is settled that the trier of fact must not be led to assume that they may arrive at the value of the unit by merely adding the separate value of the land to the replacement value of the improvements. State v. Adams, supra. In these cases the land must be valued as a unit and the consideration of the improvements should be limited to the extent that they enhance the value of the land as a unit.

In the present case such evidence may be present due to the nature of the testimony elicited when viewed in the proper perspective. The opinions expressed as to value in this case do offer at least some evidence regarding the effect of the house upon the overall value of the tract taken. Due to the fact that the parties tried this ease as if the house was entirely upon the land taken, it may not be said that evidence was incorrectly offered as to the effect of the value of the entire house solely upon the land taken.

Generally, when a situation involving such a partial improvement taking arises, the law is declared as allowing the jury, or other fact finders, to determine what the actual damages are, or what the value of the actual part taken is. Then, as an element of damage to the remainder of the land, what can be done with the remainder of the house, warehouse or other such improvement, and the expense of getting this done, is to be reflected in the differences of market value but not to be recovered as separate items of recovery. M. Rayburn, Texas Law of Condemnation, Sec. 103(3) (1960). See, State v. Blair, 72 S.W.2d 927 (Tex.Civ.App.-El Paso 1934, no writ). In the instant case the State elected to take the entire house rather than to bisect it and await the jury’s findings as to the damage such a partial improvement taking would create. In the usual case, the amount of damage to the remainder caused by such a partial improvement taking would be revealed in the jury’s response to the before and after issues as enunciated in Carpenter.

In the present case normal procedure was not followed since the entire house was to be appropriated and therefore neither side attempted to introduce any evidence in the usual manner as to apportioning the value of the house between the part taken and the remainder. The State opted to proceed in this unusual fashion and may not now complain that the general rules as to damage calculation could not be strictly applied.

The State maintains that the jury in this case was allowed to arrive at their award by improperly adding together the separate values of the land and the house. The jury award to the Gills of $40,000 is not yielded from a simple combination of land value and replacement value as is obvious upon a review of the testimony. Such a finding is not clearly unjustified given the nature of the testimony elicited under the present facts.

In Puryear v. Porter, 153 Tex. 82, 264 S.W.2d 689, 690 (1954), this court recognized that while the judgment of a court of civil appeals is final and conclusive on a question of sufficiency of the evidence to support a verdict, nevertheless, when it appeared that its ruling on the question was based upon a conception of the law held by this court to be erroneous, that we would remand the cause to the court of civil appeals for consideration of the weight of the evidence under proper rules of law. Therefore, given our analysis of the present controversy, the judgment of the court of civil appeals is reversed and the cause remanded to that court for further consideration of the question of sufficiency of the evidence to support the jury’s answer to Special Issue No. 1.

      . “Special Issue No. 2: From a preponderance of the evidence what do you find was the market value of Defendants’ entire tract of land, together with the house and other improvements, exclusive of the land and house and other improvements condemned, immediately before the same was taken for highway purposes? Answer $8,500.
      “Special Issue No. 3: Excluding increase in value, if any, and decrease in value, if any, by reason of benefits or injuries received by Defendants in common with the community generally and not peculiar to them and connected with their ownership, use and enjoyment of the particular tract of land across which the strip of land has been condemned, and taking into consideration the uses to which the strip condemned is to be subjected, what do you find from a preponderance of the evidence was the market value of the remainder of Defendants’ tract of land immediately after the taking of the land and improvements for highway purposes? Answer $10,000.”
      The jury therefore found that the remaining property would realize an increase in value once the house had been removed since its best use was for commercial purposes.

      . “Special Issue No. 1: From a preponderance of the evidence what do you find was the market value of the land, together with the house and other improvements, condemned by the State for highway purposes at the time it was condemned? Answer $40,000.”

      . Judge Cornelius was of the same belief as evidenced by his concurring opinion in this same controversy, State of Texas v. Joe H. Gill, 519 S.W.2d 514, 516 (Tex.Civ.App.-Texarkana 1975, writ granted).

      . The value testimony of the Gills’ witnesses was based upon a front foot evaluation, while the opinions of the State’s witnesses were based upon a square foot analysis.

      . We are certainly not stating that the issue submission in this case is entirely proper. Our discussion relates only to the jury decision under these issues and the testimony upon which its decision was based.

      . When questioning the Highway Department staff appraiser the State asked:
      “Q So the taking, then, what do you— what is your value of the part being acquired by the State?
      “A $8,385.
      “Q And does that include land and house?
      “A Land and house, right.
      “Q All right, and how much of that for the part taken — how much of that would you ascribe to the land?
      “A $2,785.
      “Q All right, and how much did you ascribe to the house?
      “A $5,600.
      “Q And this includes — you included that on the taking itself, since we’re taking the whole house?
      “A Yes, sir, that’s true.”
      Typical of the questions propounded by the Gills to their witnesses is one of those asked Mr. Sam Hayes:
      “Q But you say the actual cash market value of the land taken, together with the house, would be $53,000 on August 14, 1973?
      “A Yes.”


author: POPE, Justice.

text:
    FIREMEN’S AND POLICEMEN’S CIVIL SERVICE COMMISSION OF the CITY OF FORT WORTH et al., Petitioners, v. Richard L. WILLIAMS, Respondent.
    No. B-5179.
    Supreme Court of Texas.
    Nov. 26, 1975.
    Rehearing Denied Dec. 23, 1975.
    S. G. Johndroe, Jr., City Atty., Theodore P. Gorski, Jr., Asst. City Atty., Fort Worth, for petitioners.
    Farrar & Claunch, Jim Claunch, Fort Worth, for respondent.
   POPE, Justice.

Plaintiff, Richard L. Williams, sought and obtained a permanent injunction which ordered the Firemen’s and Policemen’s Civil Service Commission of Fort Worth to promote him to the rank of fire driver effective August 1, 1973. The court of civil appeals affirmed the judgment of the trial court. 518 S.W.2d 615. The question presented is whether the district court had jurisdiction to entertain an appeal from orders of the Civil Service Commission that examination papers should be regraded, corrected, and a new eligibility list posted. We hold that the Civil Service Act does not authorize such an appeal, and we accordingly reverse the judgments of the courts below and order the dissolution of the injunction.

During July, 1972, the Commission gave four separate tests for the purpose of establishing eligibility lists for the positions of district fire chief, fire captain, fire lieutenant, and fire driver. Richard Williams took the fire driver test on July 31. The fire driver test was the last of the four, and before Williams took the test, examinees for the other tests had expressed dissatisfaction with a number of questions asked on their tests, because they were not based upon study material that was available to the applicants in violation of section 14, subd. D(l), article 1269m.

Michael W. Darwin had appealed the grade on his earlier examination for fire captain, and the Commission conducted a hearing on the complaint on July 27, four days before Williams took the fire driver test. The Commission recessed the Darwin hearing on July 27 until it could obtain additional information about all four examinations from the professional firm that prepared the questions. After Williams took his examination on July 31, he and nine others protested a number of questions. Before acting upon the protests, on August 3, 1972, the Commission posted the grades which showed that Williams ranked nineteenth on the eligibility list.

On October 10, Darwin’s recessed hearing resumed, and on October 13, the Commission ruled that section 14, subd. D(l), of article 1269m had been violated not only on the fire captain examination but on all of the tests. The Commission ordered the director to regrade all of the examination papers, and to eliminate the questions which were not grounded on study material available to the examinees and to report a corrected eligibility list. The regrading of the fire driver examination papers resulted in moving Williams downward from position nineteen on the eligibility list to position twenty-one. Williams did not then complain about the new grade or the lower position on the eligibility list.

Eligibility lists expire at the end of one year, which in the case of the fire driver list, was on August 2, 1973. On August 1, 1973, the city reached position nineteen for promotion of fire drivers, and it promoted the one whose name was in that position on the last or revised eligibility list.

On August 3, 1973, Williams appealed to the Commission, contending that he should be promoted because the first eligibility list was the only valid one and he was in position nineteen on that list. The Commission conducted an administrative hearing on August 31, and on October 4,1973, it upheld its earlier order of October 13,1972, which had ordered all tests regraded. Williams then filed this suit in the District Court seeking a judgment that he be appointed fire driver effective August 1,1973, the date that position was filled. The courts below ordered Williams’ appointment.

Williams’ contention, which has been sustained, is that the first eligibility list stands because there was no appeal from that list. The Commission, however, says that the reason the first eligibility list was changed was that on July 31, 1972, Williams and others lodged complaints about certain questions, those complaints were valid and the resulting regrading and reposting of the second eligibility list was unattacked for more than nine months.

Section 14, subd. D(4), of article 1269m accords an examinee the right to appeal to the Commission when he is dissatisfied with the grade he receives on a Civil Service Examination. It says:

(4) Each applicant shall have the opportunity to examine his examination and his answers thereto together with the grading thereof and if dissatisfied shall, within five (5) days, appeal the same to the Commission for review in accordance with the provisions of this Act.

A further appeal from the Commission’s decision after an appeal from the grading is not authorized. This was our decision in City of Amarillo v. Hancock, 150 Tex. 231, 239 S.W.2d 788 (1951), and also in Firemen’s and Policemen’s Civil Service Commission v. Kennedy, 514 S.W.2d 237, 240 (Tex.1974). In Kennedy we said:

In establishing the system, the Legislature was entirely free to require, as it did implicitly, that the commission be the final arbiter with respect to grades and method of grading when an examinee exercised his right of appeal.
The examining authority may properly determine in retrospect and as part of the grading process, that a question is so vague and ambiguous that any of the multiple-choice answers should be accepted as correct. It may accomplish the same result by simply disregarding the answers to the question in computing the grades on the examination. There is no suggestion that the commission here was guilty of fraud or bad faith, respondent’s basic contention being that the commission’s action with respect to the two questions was arbitrary and capricious, i. e. not supported by substantial evidence. The courts have no power to review the order of the commission on that ground.

In our opinion Williams did make a timely appeal from his grade on the examination. After the examination, Williams and other examinees objected to a total of forty different questions. Williams, like the others, made a written list of specific questions, which he regarded as unfair. He signed the page which contained his list and left it with the Commission. Acting upon the basis of these complaints, the Commission called upon the professional organization which planned the examination to state in writing the source material which was available to examinees for study as to each question. That organization responded in writing and stated opposite each question the reference material available to the examinees. Two questions were reported as improper and invalid. The Commission then deleted those questions, regraded all the papers, and posted the revised eligibility list.

The record before us shows that the right of appeal which relates to examinations and grading has been construed by the Commission in a way which affords examinees a broad right to seek relief from the Commission. The unfairness about which Williams complained was fully investigated, corrected and reported. Williams has made no further complaint about the examination or the regrading. We conclude that Williams exercised his statutory right to appeal from the examination and that appeal exhausted his right to appeal. This was our holding in Kennedy. It is our further view that under Kennedy, the regrading after the complaints was a part of the grading process from which there was no right to appeal to the district court.

Williams strongly relies upon Crain v. Firemen’s and Policemen’s Civil Service Commission, 495 S.W.2d 20 (Tex.Civ.App.1973, writ ref’d n. r. e.) which held that one’s grade on a promotional examination is an equitable property right to a place on an eligibility list. We disapprove that holding, because it is inconsistent with the clear language of Kennedy that one’s rights under the civil service system are statutory only. Crain, unlike our present case, was one in which there was no appeal by anyone who considered himself aggrieved about the examination or the subsequent eligibility list. It was for that reason that the court held that the eligibility list became legally established by force of the statute, after the appeal time had elapsed. Bostick v. Owens, 423 S.W.2d 471 (Tex.Civ.App.1968, writ ref’d n. r. e.).

The judgments of the courts below are reversed, and the injunction is dissolved. Because the trial court should have sustained petitioner’s plea to the jurisdiction, we dismiss the entire cause.

      . . . . and all of said questions shall be based upon material which has been made available to all members of the Fire or Police Department involved and shall be based upon the duties of the position sought and upon any study courses given by such Departmental Schools of Instruction and upon the applicant’s efficiency.

      . That from information furnished to the Commission by McCann Associates, Consultants in Public Personnel Management, certain questions on the respective promotional examinations for the position of Fire Driver, Fire Lieutenant, Fire Captain and District Fire Chief are invalid by reason of not being based upon reference materials made available to all members of the Fire Department; and, that such invalid questions shall be deleted from the respective promotional examinations. Only answers to valid questions shall be graded. (Emphasis added.)


text:
    Robert E. NESMITH et al., Petitioners, v. Shirley Nesmith ALLEN, Respondent.
    No. B-5538.
    Supreme Court of Texas.
    Nov. 26, 1975.
    Jamail & Gano, Joseph Jamail and William J. Stradley, Hofheinz & Harpold, Lew W. Harpold, Houston, John L. Hill, Atty. Gen., Scott Garrison, Asst. Atty. Gen., Austin, for petitioners.
    Urban, Coolidge, Pennington & Scott, T. J. Sims and Michael D. Stewart, Houston, for respondent.
   PER CURIAM.

The trial court’s judgment in favor of petitioners was reversed by the court of civil appeals because of the existence of an undetermined material fact issue. 525 S.W.2d 943. The application for writ of error of Robert E. Nesmith, et al., is refused, no reversible error. We note, however, that the court of civil appeals, in the first sentence in paragraph nine of its opinion, inadvertently stated that the existing fact issue is whether the will in question was signed by the testatrix in the presence of the attesting witnesses. Actually, as elsewhere evident in the opinion, the existing fact issue is whether one of the attesting witnesses signed the will in the presence of the testatrix. See 525 S.W.2d 943, 945, and the attestation requirements of Sec. 59, Texas Probate Code, V.A.T.S.


author: BROWN, Commissioner. ONION, Presiding Judge.

text:
    Donald Wade DUBOSE, Appellant, v. The STATE of Texas, Appellee.
    No. 50606.
    Court of Criminal Appeals of Texas.
    Nov. 26, 1975.
    Rehearing Denied Jan. 14, 1976.

      Harry Louis Zimmermann, Dallas, for appellant.
    Henry Wade, Dist. Atty. and W. T. West-moreland, Jr., Jim Johnston and Fred Davis, Asst. Dist. Atty’s, Dallas, Jim D. Vol-lers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

The appellant was convicted of robbery. The jury found that the appellant had previously been twice convicted of felony offenses prior to the instant offense. Punishment was assessed at life in accordance with Sec. 12.42(d) of the Penal Code.

The sufficiency of the evidence is not challenged.

Appellant complains of the following argument, made by the prosecutor at the guilt or innocence stage:

“Now, not one time during this entire proceeding, not one single time, not one sentence, not one scintilla of evidence, not one word in any way did this defendant or these attorneys challenge the credibility of Peggy Lou Edwards.
“MR. ZIMMERMANN: Your Honor, I object to Mr. Johnson’s innuendo on the defendant’s failure to testify.
“THE COURT: Overruled.
“MR. JOHNSON: When the Judge overrules the objection, you may consider what I have to say.” (Emphasis Supplied)

The argument complained of becomes even more clearly a comment on the failure of the appellant to testify when the facts of the case are considered. The record reflects that during the robbery which occurred on September 4, 1973, only the complainant, Mrs. Peggy Lou Edwards, and the robber were present. The jury was aware that there was no other witness that could be called to testify about the appellant’s presence. It is uncontroverted that there was no other witness to the robbery than the victim and the robber. In this context and from the perspective of the jury the argument becomes even more clearly a comment on the failure of the appellant to take the stand and testify.

The argument complained of clearly falls within the prohibition of Art. 38.08, V.A.C. C.P., Art. 1, Sec. 10, of the Constitution of the State of Texas, and the Fifth Amendment of the United States Constitution. See Bird v. State, 527 S.W.2d 891 (Tex.Cr. App.1975) where Presiding Judge Onion cites and discusses most of the recent cases on prosecutorial comment on the failure of the defendant to testify.

In the case before us there can be no doubt that the remarks of the prosecutor amounted to a nearly direct comment on the failure of the appellant to testify.

Because of the manifestly improper argument of the prosecutor the judgment is reversed and the cause remanded.

Opinion approved by the Court.

DOUGLAS, J., not participating.

OPINION ON STATE’S MOTION FOR REHEARING

ONION, Presiding Judge.

On original submission this cause was reversed because of the prosecutor’s comment during jury argument on the appellant’s failure to testify. In concluding the argument was improper we noted that the evidence reflected that only the complaining witness, Peggy Lou Edwards, and the robber were present at the time of the alleged offense and the jury was aware there was no other witness that could be called to testify about appellant’s presence at the robbery.

On rehearing the State claims the factual basis for the court’s decision is “simply incorrect” and contends that one Ballard observed the robbery and was a witness at the trial. A re-examination of the record reflects that the State has misread the record.

Robert C. Ballard, assistant manager of a Woolworth store in the shopping center where the alleged offense occurred, testified that on the date in question the appellant came up to his store as it was being closed and was told the store was closed. He related that later he heard a woman “later . . . identified as Mrs. Woods” scream, that he went out into the parking area, that he did not see the appellant with “Mrs. Woods,” but to his left he did see the appellant walking about fifteen feet away. He observed the appellant look back at him and other individuals there and then get into a red Ford pickup and drive away.

It is obvious that Ballard’s testimony related to an extraneous matter involving “Mrs. Woods” which he did not personally observe. This testimony in no way made him a witness to the instant robbery case where the complaining witness was shown to be Peggy Lou Edwards.

The State also urges that the prosecutor’s remark raised the question of the credibility not the contradiction of the complaining witness and since her credibility could have been attacked in other ways than by the appellant’s own testimony there was no reversible error in the argument. We remain convinced, however, that when the remark is viewed from the standpoint of the lay jurors it could hardly be construed as anything but reference to appellant’s failure to testify. See Yates v. State, 488 S.W.2d 463 (Tex.Cr.App.1972).

Although it was not mentioned in the opinion on original submission, we conclude in connection with appellant’s second ground of error that the extraneous offense introduced in the State’s case in chief through the testimony of Florence J. Wood should not have been admitted as it was over objection. We find no basis for the admission of this extraneous offense. See Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972). We observe that appellant did not testify or offer any evidence.

The State’s motion for rehearing is overruled.

      . This is apparently the same person referred to by the witness Ballard as “Mrs. Woods.”


author:
ODOM, Judge.
      DOUGLAS, Judge

text:
    Ex parte Gary A. TAYLOR.
    No. 50650.
    Court of Criminal Appeals of Texas.
    Dec. 17, 1975.
    Terrence A. Gaiser, Stuart Kinard, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III and Don Lambright, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from an order remanding appellant to custody for extradition to the State of Washington.

Appellant contends he was denied a reasonable time to apply for a writ of habeas corpus and prepare for a hearing on such application, to test the legality of his arrest, in violation of Article 51.13, Section 10, V.A.C.C.P. That Section provides in relevant part:

“No person arrested upon such warrant shall be delivered over to the agent whom the Executive Authority demanding him shall have appointed to receive him unless he shall first be taken forthwith before a judge of a court of record in this State, who shall inform him of the demand made for his surrender and of the crime with which he is charged, and that he has the right to demand and procure legal counsel; and if the prisoner or his counsel shall state that he or they desire to test the legality of his arrest, the judge of such court of record shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus.” (Emphasis added.)

The record reflects that the Governor’s Warrant was received by the Harris County Sheriff’s Department on Thursday, June 26, 1975, and a “hold” placed upon appellant, on authority of that warrant, at that time. Therefore, appellant was under arrest on authority of that warrant beginning on June 26. The record further reflects that appellant and counsel first received a copy of the extradition papers at 10:45 on the morning of Monday, June 30,1975, the date upon which the hearing was conducted, and that a few minutes thereafter appellant was first brought before a judge of a court of record as required by the above quoted provision. At this time appellant through counsel stated that he desired to test the legality of arrest by application for writ of habeas corpus and requested a reasonable time in which to investigate the facts, research the law and prepare the application and for the hearing thereon. The judge insisted that the application must be made and the hearing held on that same day, and recessed the proceeding for two hours, to 1:30 p. m. After the recess appellant reurged his motion for continuance, offered further evidence thereon, and proceeded with the filing of his application and hearing thereon only upon directions from the court over his objection and announcement of not ready.

In Ex parte Turner, 410 S.W.2d 639, this Court held indigents are entitled to appointed counsel in extradition proceedings, and quoted with approval from People ex rel. Harris v. Ogilvie, 35 Ill.2d 512, 221 N.E.2d 265, in which the Supreme Court of Illinois stated:

“Even though the issues in a habeas corpus proceeding under the Uniform Criminal Extradition Act are limited to certain questions, we think it clear that legal expertise is necessary to consider and properly raise such pertinent questions as whether the requirements of the act have been complied with, whether the various extradition papers are in proper form, whether the arrested person is in fact a fugitive from justice subject to extradition, and whether he is in fact a person charged with a crime in the demanding State. Very few persons would be able to represent themselves adequately in an extradition hearing without the advice and assistance of counsel.”

This rationale which requires availability of counsel in the first place also dictates that “a reasonable time be allowed” to prepare and submit application for a writ of habeas corpus. Of what use can counsel be if he has had no time to study the extradition papers, the facts, and the law, in preparation for the hearing on the application?

In Ex parte McCarthy, Tex.Cr.App., 472 S.W.2d 759, it was held that no abuse of discretion was shown in the overruling of the applicant’s motion for continuance where the record revealed that he had been delivered a copy of the extradition papers two days prior to the hearing, and nothing further was shown which would indicate that such time was insufficient to adequately prepare.

In Ex parte Partridge, 161 Tex.Cr.R. 185, 275 S.W.2d 682, it was contended that three days was insufficient time to prepare for the hearing. The opinion in that case stated:

“We do not hold that three days is a reasonable time in every case but do hold that in a case, such as we have here, where the appellant makes no showing that he was deprived of any evidence which he might have presented at the hearing because of the shortness of time, no abuse of judicial discretion is shown.”

In the instant case, as in Partridge, there was no showing that appellant was deprived of any evidence which he might have presented. However, in this case, unlike Partridge, appellant was given less than three hours after service of the Governor’s Warrant to prepare, and while it is proper that an applicant who has had three days to prepare should be required to demonstrate why more time is needed, no such showing is required where an applicant, such as appellant in this case, has been given virtually no time at all to prepare.

We find that the trial court abused its discretion in denying appellant’s motion for continuance because the record reflects that appellant was not given a reasonable time to prepare for presentation of the application for writ of habeas corpus.

The order of the trial court below that appellant be delivered to the agents of the Governor of the State of Washington for extradition to that State is vacated. If appellant still “desire[s] to test the legality of his arrest,” the trial court below “shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus.”

It is so ordered.

DOUGLAS, Judge

(dissenting).

The majority reverses because the trial court refused to grant a continuance.

Appellant received a copy of the extradition papers at approximately 10:45 a. m., June 30, 1975. Appellant requested a continuance to examine the papers. The trial court recessed the extradition proceeding until approximately 1:30 p. m., June 30, 1975.

Appellant’s attorney testified that he knew that the extradition papers were available for his inspection in the sheriff’s office on June 27, 1975.

Appellant has made no showing that he was injured by the refusal of the trial court to delay the proceedings. A similar question was presented in Ex parte Landers, 366 S.W.2d 567 (Tex.Cr.App.1963). In Landers, this Court wrote:

“The claimed abuse of discretion on the part of the trial court in overruling appellant’s motion for continuance is not sustained. The record shows that the Executive Warrant, Requisition and supporting documents demanded by appellant and his counsel were furnished before the hearing began. The record does not show that a prior demand was made, and there is no showing of injury.”

In the instant case appellant did not contend at the extradition hearing or on appeal that he was injured by the refusal of the trial court to grant a continuance. He does not now contend that he has found some error in the executive warrant or supporting papers that would have assisted him if he had been given more time. Absent a showing of harm, the judgment should be affirmed.

      . An examination of the records on file in this Court in Ex parte Landers, supra, indicates that the extradition papers were served on Landers five minutes before the scheduled time for the extradition hearing.


author: DAVIS, Commissioner.

text:
    Ex parte Gary Addison TAYLOR.
    No. 51128.
    Court of Criminal Appeals of Texas.
    Jan. 7, 1976.

      Terrence A. Gaiser and Stuart Kinard, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III, and Don Lambright, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from an order entered after a hearing in a habeas corpus proceeding seeking reduction of bail.

Appellant’s application for writ of habeas corpus alleged that appellant was held in confinement by reason of indictments in the following:

No. 228,405, aggravated rape, bail: $100,-000
No. 228,406, aggravated sexual abuse, bail: $20,000
No. 228,407, attempted aggravated rape, bail: $20,000
No. 228,408, aggravated sexual abuse, bail: $100,000
No. 228,409, aggravated sexual abuse, bail: $100,000.

In addition, the application alleged that appellant was being “illegally restrained of his liberty in jail at Houston, Harris County, Texas, by the Kings County Police Department and their agents and employees, State of Washington.”

The five indictments mentioned above were introduced into evidence by the State.

Appellant offered a stipulation entered into between appellant and the State that “the outside possible amount of cash available for a bond, that Gary Addison Taylor might possibly acquire would be between $3,000 and $5,000, and this is not definite. But it is contingent on the possibility of a loan made to the family.”

After the hearing in the habeas corpus proceeding from which this appeal is taken, the court denied the request to lower the bonds in the three aggravated sexual abuse cases and in the two aggravated rape cases. The court set bond at $100,000 in the extradition matter.

The circumstances under which a crime is committed is a proper consideration under Art. 17.15, V.A.C.C.P. in determining the amount of bail to be required. See Korn v. State, Tex.Cr.App., 400 S.W.2d 464. No facts accompany this record which show or suggest the manner or circumstances under which the crimes charged were committed. See Ex parte Davis, 159 Tex.Cr.R. 49, 261 S.W.2d 323.

Article 17.15, supra, further provides that the “nature of the offense” is to be considered. Taking into consideration the “nature of the offense” necessarily involves the punishment required under the law. Ex parte Cascio, 140 Tex.Cr.R. 288, 144 S.W.2d 886. The offenses of aggravated rape (V.T. C.A. Penal Code, Sec. 21.03) and aggravated sexual abuse (V.T.C.A. Penal Code, Sec. 21.-05) are first degree felonies and upon conviction carry maximum penalties of confinement for life. V.T.C.A. Penal Code, Sec. 12.32. Attempted aggravated rape is a felony of the second degree and carries a maximum penalty upon conviction of twenty years. V.T.C.A. Penal Code, Sections 15.01 and 12.33.

Still another consideration in fixing the amount of bail under Art. 17.15, supra, is that “The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.” Appellant, in asking the court to fix bond pending appeal in the extradition matter, offered into evidence the Governor’s Warrant of this State and supporting papers from the State of Washington which charge appellant with the crime of murder in the first degree in that state. The fact that appellant is charged with being a fugitive from the State of. Washington was a relevant factor in fixing the amount of bail. See Ex parte Poindexter, Tex.Cr.App., 511 S.W.2d 529.

While the ability or inability of the accused to make bail is a factor, it does not control the amount to be fixed. Ex parte Poindexter, supra; Ex parte Von Bierberstein, Tex.Cr.App., 487 S.W.2d 345; Ex parte Roberts, Tex.Cr.App., 468 S.W.2d 410; Ex parte Nectoux, Tex.Cr.App., 455 S.W.2d 249.

In the cases pending against appellant in Harris County, the maximum punishment in four cases is life and in one case twenty years. In addition, there was evidence before the court that appellant was a fugitive from justice from the State of Washington, charged with the crime of murder in the first degree.

We conclude that the bail in each of the five cases pending in Harris County is not excessive and that the trial court did not abuse its discretion in denying appellant’s request to reduce the amount of bail. The relief sought is denied.

It is so ordered.

Opinion approved by the Court.

      . Appeal was taken from an order remanding appellant to custody to the State of Washington and this Court vacated such order for the reason that appellant was denied a reasonable time to prepare for presentation of an application for writ of habe-as corpus. This Court ordered that the trial court give appellant a reasonable time in which to apply for a writ of habeas corpus in the event appellant still desired to contest the legality of the arrest. Ex parte Taylor, Tex.Cr.App., 531 S.W.2d 335 (1975). The trial court in setting bond in the extradition matter while such matter was on appeal to this Court noted that the matter of bond was not considered when the extradition was before the trial court. See Art. 44.35, V.A.C.C.P., “Bail pending habeas corpus appeal.”

      . We do not pass upon the question of bail pending appeal in the extradition matter. It is noted that appellant in the instant case sought in his application for habeas corpus to have bail set pending appeal in such matter, rather than reduction of bail, and that he was granted the relief he sought from the trial court.


author: ROBERTS, Judge.

text:
    Joe Don ERWIN, Appellant, v. The STATE of Texas, Appellee.
    Nos. 50677 & 51247.
    Court of Criminal Appeals of Texas.
    Jan. 7, 1976.

      Michael J. Rogers (Court-appointed), Cle-burne, for appellant.
    Prank Bobbit McGregor, Dist. Atty., Hillsboro, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

These are appeals from convictions for murder and attempted murder. Appellant was tried before a jury and the jury assessed punishments of 99 and 20 years, respectively. The offenses occurred on May 13, 1974, and trial commenced on July 30, 1974.

A brief review of the evidence reveals that appellant and the deceased were married on June 29, 1970. The marriage was characterized by numerous filings for divorce, separations, and reconciliations. About two months prior to the murder, appellant and deceased were separated for the last time and he suspected her of being involved with either Billy Wickman or C. J. Wickman, who owned a used car lot in Hillsboro. The evidence showed that appellant had threatened and assaulted both his wife and those he suspected of consorting with her, that he had eluded police officers, and that he had once poured sugar in the gas tank of his wife’s car.

On the day in question, appellant and a companion watched as the deceased left work and went to the Wickman car lot. Claiming he just wanted “to get things straightened out,” appellant left his companion’s car and entered the car lot office. There he shot and killed his wife and wounded C. J. Wickman.

Appellant complains of the use of a divorce petition filed by the deceased against the appellant four years prior to her death. The prosecutor read the petition into the record for the purpose of impeaching appellant on cross-examination. Appellant timely objected, but he was overruled. The divorce petition alleged threats, harassment, violent temper, and fear of bodily injury and contained an allegation that appellant had run his wife’s car off the highway at 70 miles per hour, causing bodily injury to her and damage to the car.

The divorce petition was objectionable as hearsay. Barker v. State, 509 S.W.2d 353 (Tex.Cr.App.1974); Yates v. State, 489 S.W.2d 620 (Tex.Cr.App.1973) and cases cited therein. In Yates, the introduction into evidence of two divorce petitions and two temporary restraining orders was held to violate the hearsay rule and call for reversal. The reading from the instrument in this case was no less hearsay than if it had been introduced into evidence itself. The incidental fact that the court had entered findings on his temporary restraining orders damaging to Yates’ case does not distinguish the two cases, since the evidence in this case indicated that a temporary restraining order did issue on the basis of the pleadings read into evidence. Yates, supra, compels a reversal of this conviction.

Sec. 19.06, V.T.C.A., Penal Code, permits evidence showing the previous relationship existing between the accused and the deceased as well as all relevant circumstances going to show the condition of the mind of the accused at the time of the offense. The State’s reliance upon this statute is misplaced, however. It is well established that the statute neither changed, limited, nor extended the general rules of evidence relative to hearsay. Brooks v. State, 475 S.W.2d 268 (Tex.Cr.App.1972); Jones v. State, 515 S.W.2d 126 (Tex.Cr.App.1974).

In the event of a retrial upon remand of these causes, it is hoped that the State will refrain from raising the issue of the defendant’s reputation at the guilt-innocence stage of the trial, that it will not phrase “have you heard” questions in such a way as to imply the defendant’s guilt of the specific acts of misconduct inquired about, and that the hearsay contents of an arrest warrant that did not lead to a final conviction will not be read to the jury.

It is impossible to separate the effects of the errors discussed above as they relate to each of the convictions here. For the reasons stated, the judgments are reversed and the causes remanded.

      . Formerly Art. 1257a, V.A.P.C.