author: WILLSON, Chief Justice LEVY, Justice. BLALOCK, Chief Justice.

text:
    DIFFIE v. COWAN, Mayor, et al.
    No. 4343.
    Court of Civil Appeals of Texas. Texarkana.
    Dec. 13, 1932.
    Rehearing Denied Dec. 29, 1932.

      King, Mahaffey, Wheeler & Bryson, of Tex-arkana, for appellant.

      Travers Crumpton, of Texarkana, for ap-pellees.
   WILLSON, Chief Justice

(after stating the case as above).

Appellant insists it was error to sustain the motion to dissolve, because he says (1) appel-lees at the time had not filed an answer to the petition for the writ; (2) the Legislature could not confer on the mayor and aldermen power it undertook to confer on them to suspend, try, convict, and remove elective officers of the city; (3) if the Legislature had such power it did not intend to confer it so far as aldermen were concerned; and (4) if the Legislature could and did confer such power, it did not appear in the charges preferred against appellant that he had done any of the things specified in the charter as furnishing ground for removing him from his office as alderman. The matters specified will be briefly discussed in the order they are stated above.

1. The motion to dissolve the writ containing, as it did, demurrers and exceptions to appellant’s petition and a denial of any equities pleaded therein, we think it constituted a sufficient “answer” within the meaning of article 4658, R. S. 1925, providing that such motions “may be heard after answer filed.” Worm v. Wood (Tex. Civ. App.) 223 S. W. 1016.

2. By' the terms of the charter (Sp. Acts 1907, c. 104), power to try and remove any officer “for [quoting] malfeasance, nonfeasance or misfeasance in office, or for wilful violation of any of the ordinances of the said city, or for habitual drunkenness or for corruption or for wilful or habitual neglect of the duty or upon conviction of a felony,” was conferred upon the city council, composed of the mayor and five aldermen, three of whom constituted a quorum. Sections 8, 58. Such trial was to be had at a time fixed by the mayor after charges in writing against the officer had been filed with him (section 59), and after ten days’ service of a copy of the charges was had on the officer (section 60). The may- or and aldermen were to constitute a court to try and determine the charges (section 63), and were to have power- by the concurrence of three-fifths of its members to suspend the accused officer pending an investigation of the charges against him. In the event of such suspension, the council was empowered to “appoint [quoting] some suitable person to discharge the duty of such officer so accused.” Section 61. As we understand the law applicable, the Legislature acted within the limits of power it possessed when it authorized the city council to hear and determine, in the manner pointed out, charges preferred against any of the city’s officers, including alderman. Riggins v. Richards, 97 Tex. 229, 77 S. W. 946; Callaghan v. Tobin, 40 Tex. Civ. App. 441, 90 S. W. 328; Bonner v. Belsterling (Tex. Civ. App.) 137 S. W. 1154.

The contention to the contrary, as to álder-men, is on the theory that it appeared the intention of the Legislature was to limit the exercise of power it conferred to officers of the city other than alderman. Certainly the intention to make such a limitation was not indicated by the language used in the provision of the charter conferring the power. Section 58. That language was that “any officer” of the city might be tried and removed for malfeasance, etc., in the way provided. It is argued that giving such meaning to the provision of the statute would present “the anomaly that it was the purpose of the Legislature to give a court created by it power to try and-remove from office one of its own members,” and attention is called to the fact that by section 64 other .provision was made for trying the mayor. It is argued that such special provision and not making such provision for trying aldermen indicated the Legislature did not intend that an alderman should be tried by the mayor and the other aldermen. As-we see it there is little, if any, force in the argument. The special provision for trying the mayor we think owed its existence in the charter to the necessity of providing some officer other than him with whom charges-against him could be filed, who could fix a date for the trial, and who could give proper notice thereof to the mayor. Those duties, when the charges were against another officer than the mayor, by the terms of the charter-as shown above, devolved upon the mayor. Ño other (article 5995, R. S. 1925) provision than that in section 58 above referred' to existed in the charter or in the general laws of the state for trying and removing aldermen guilty of conduct like that denounced in the charter and charged against appellant by the city attorney. Certainly, we think, it should not be held, in the face of unambiguous language used by the Legislature indicating to-the contrary, that that body did not intend the provision it made for the trial and removal of any officer should apply to aldermen, Riggins v. Richards, 97 Tex. 229, 77 S. W. 946, where it was held that the words “any offi-’ cer” used in a charter granted the city of Waco, meant all officers, whether elected by the people or by the city council.

4. It was declared in the charter that no person in the service of the city should “directly or indirectly [quoting] use his authority or official influence to compel or induce any person in the public service of the city of Texarkana to pay or promise to pay any political assessment, subscription or contribution” (section 70); and it was provided that a violation of said inhibition should be punished by a fine of not less than five nor more than one hundred dollars (section 73). The charges preferred against appellant are set out in the statement above. It will be noted that they were that appellant, while an alderman, attempted to extort money from members of the fire department to be used as campaign funds. If appellant did that, we think he thereby violated provisions of the charter referred to, and was guilty of malfeasance in office within the meaning of section 58 of the charter.

• It follows from what we have said that we think the judge did not err when he sustained appellees' motion and dissolved the writ.

It may be added, that if the conclusion reached by us that the power the city council invoked was power lawfully conferred upon it fe correct, the action of the judge in dissolving the writ was warranted by the rule that “courts of equity [quoting from the opinion of the court in Callaghan v. Tobin, 40 Tex. Civ. App. 441, 90 S. W. 328, 330] will not interfere to protect a person from removal from office by a man or body of men to whom the ¿ovírer to remove is given by law”; and see Riggins v. Thompson, 30 Tex. Civ. App. 242, 70 S. W. 578; and Miles v. Logan (Tex. Civ. App.) 265 S. W. 421.

■“'The; judgment is affirmed.

LEVY, Justice.

. The pointed question for consideration is that of whether or not the power resides in the - city council of the city of Texarkana, a city strictly under special charter or legislative authority, to try and remove an alderman from-office upon the several charges. The settled precedents have determined that if a city council,- as a special court or as a unit of the pity corporation, may. exercise the power tp. remove a municipal officer who is duly elected for a definite tenure of office, as is an alderman, such power must -have been provided by statute or by the terms of the particular-city charter. Proceedings based upon the assumption of such power would be illegal and void. Under rules long adhered to grant of power, as herein involved, of removal from office-is to be strictly construed,. and whatever is not .given in unequivocal terms is understood to be withheld. 43 O. J. § 192, p. 195. If .the authority does not clearly appear in the ¡provisions of the law or of the particular ■city charter, then no such .authority nor grant of .power can be implied or held to exist. 43 •Ó. J. § 186, p. 188.

- .The statute of the state expressly provides: '“Art. 5991. The mayor and aldermen of any .incorporated, town or city may be removed from office for official misconduct,” etc. Article 5992, that, whenever “any alderman” is •charged by sworn complaint with any act which may be “cause for his removal,” then “The mayor and aldermen of such town .or ■city, except the aldermen against whom complaint is made, shall constitute a court to try and determine the case.” Article 5993, that, whenever such complaint is made against “the mayor,” then “A majority of the aider-men shall constitute a court to try and determine the complaint against the mayor, and they shall select one of their number to preside during such trial.” Article 5995, that “The provisions of this title * * * shall not apply to any town or city except such as are incorporated under the general laws of this State.” The charter of the city of Tex-arkana (Sp. Acts 1997, c. 104), which is not a city incorporated under the general laws of this state, expressly provides: “Sec. 58. Any officer of said city may be tried by the city council which is hereby granted power for such purposes, and - removed from office for malfeasance,” etc. Section 59, that, “Before any officer created by this charter shall be removed from office, written charges shall be first preferred against him, stating in a substantial manner the charges against him.” Section 64, that, whenever charges are preferred against “the mayor,” then the “aider-men shall be and constitute. a court to try and determine the said charges against the mayor,” etc.

Considering the phraseology, of the state law, and the city charter provisions, and the line of differences, which is permissible under the rules of construction of grants of power and of use of words employed in the grant, it is not clear and certain that power was conferred, or intended to be conferred, upon the city council as a special tribunal, or as a unit of the city corporation, of trial and removal from office of an alderman. The city charter does not contain any section or provision which in anywise specifically mentions by name an “alderman,” as it does “the may- or,” as one subject to trial and removal from office by the “city council.” Seemingly, either by intention, or in the case of omission merely, an “alderman” has not been included in the charter provision by name as one made, subject to removal by the city council. It is noticeable that the power of removal from office of the accused official other than “the mayor,” as it is provided for in the city char-, ter, is conferred upon the “city council.” Under the express terms of the city charter (section 8) the “city council” is made to consist and shall be composed “of the mayor of said city and five aldermen.” The entire council, the mayor, and the five aldermen, is' constituted the tribunal, and must hear and determine the charges preferred, although “the concurrent vote of three-fifths of all the aldermen” may pronounce a valid judgment of removal. Unless otherwise expressly provided, the.power so conferred could not legally be exercised by the aldermen independently of the mayor, nor by the mayor and less than, “three-fifths of all the aldermen.” The provision differs from that providing for the tri-,' al of “the mayor,” for when he is required to appear and answer to a charge he is not a constituent element of the body nor a part of the tribunal to act. It is “the aldermen” only (section 64) that compose the court or tribunal for removal of “the mayor.” And the particular provision further widely differs from the phraseology of the state law. The state law, as noted, expressly provides that the alderman “against whom complaint is made” shall not be a constituent element nor a part of the “court to try and determine the case.” Rev. St. 1925, art. 5992. The plain inference from the context seems to indicate with sufficient clearness that it was contemplated only the removal by the city council of those officers exercising purely executive or ministerial functions and not aldermen.

It is further evident, it is believed, that the charter provisions were not intended to clothe the city council with power of removal of an alderman, although its terms include “any officer of said city.” Section 58. It is provided that (section 591 “Before any officer created by this charter” shall be removed from office written Charges shall he preferred against him. After the charges have been preferred against “any officer of the said city,” then (section 62) a day “for a trial thereon” shall be set by the mayor, and notice shall be given “the accused and all of the aldermen of said city to be present at such time.” A distinction is evidently recognized and intended to be between the words, as used, of “officers” and of “aldermen.” The charter provisions specially denominate an “alderman” and give that title to him as a member of the city council, involving functions purely of legislation. An “officer” is used in peculiar distinction to del nominate and include all persons in the service of the city who have to do with the execution or administration of the laws, whether elective or appointive. In requiring, as the section mentioned does, “all of the aldermen of said city” to be notified to be present for the trial of the accused “officer of the said city,” it was plainly contemplated the removal of all officers other than aldermen. Manifestly an accused alderman could not be regarded as by intendment to be one of the court or tribunal which was to decide his own case. The principle of public policy would prohibit it. It is a matter of the highest moment, and a fundamental idea running through and pervading the whole system of judicature and of widespread popular opinion that the rulé of disqualification on account of self-interest in the result should extend to and be applied to persons or tribunals exercising functions of a quasi judicial nature.

There is distinguishment in the particular charter provision between this ease and Higgins v. Richards, 97 Tex. 229, 77 S. W. 946. There the two charter provisions with other provisions considered together were regarded as intended to include and apply to a mayor in general classification' of an officer subject to removal. A mayor may more reasonably he included in the general classification of an officer, as his duties are chiefly executive and administrative.

On Motion for Rehearing.

BLALOCK, Chief Justice.

Upon a careful consideration of the record it is concluded that the determinative question is that of whether or not the city council, as a special court, has the power under the terms of the city charter of the city of Texarkana, Tex., as it now reads, to try and remove from office an alderman who is elected for a definite tenure of office. Under rules long adhered to, grant of power of removal from office is to be strictly construed, and whatever is not given in unequivocal terms is understood to be withheld. 43 O. J. § 192, p. 195. This rule applies with particular force to a city incorporated by special act of the Legislature. If the authority does not clearly appear in the provisions of the law or of the particular city charter, then ,no such authority or grant of power can be implied or held to exist. ■ 43 O. J. § 186, p. 188.

The city council of Texarkana is a legislative body. Its" members, the aldermen, are the legislators of the city. It has long been held and accepted as settled law that a legislator is not a “civil officer,” the speaker of a legislative assembly is not a “state officer,” the members of state Legislatures are not “officers of the state,” subject to impeachment, and this will hold true even though the S’tate Constitution may fail to expressly give the legislative body control over its own members. In re Speakership, 15 Colo. 520, 25 P. 707, 709, 11 L. R. A. 241; State ex rel. Haviland v. Beadle, 42 Mont. 174, 111 P. 720. May it not be said with- equal force that a member of the city’s legislative body, an alderman, does not come within the general classification, “any officer” qf ;.the .city? The failure of the charter to make the city council the judge of the qualifications of its members may be unfortunate; but that consideration may not control a proper construction of its provisions.

Considering the ’ phraseology ' of the city charter, it is evident that the provisions were not intended to clothe the city council with power of removal' of an alderman, although the terms include “any officer of the city.” The charter provisions specially denominate an “alderman” and give that-title to him as á member of the city council, involving functions purely of legislation. An “officer” is Used in the charter in peculiar distinction to denominate and include all persons in the service of the city who have to do only with the execution or administration of the laws. There is clear distinguishment made between the three different classifications of city officials, of ■ “Mayor,” “Alderman,” and “officers of the City.” Each exercise, and are intended to exercise, different functions and duties.

I concur in the views expressed by Associate Justice Levy in the minority opinion heretofore handed'down by him. A.majority of the court concurs and agrees that the motion for rehearing be granted, and the judgment' dissolving the temporary injunction be reversed, and the cause remanded. It is accordingly so ordered.

SELLERS, J., does not agree, but is of the opinion, as before, that the judgment should be affirmed.


source: Caselaw Access Project

author: BLALOCK, Chief Justice.

license: Public Domain

text:
    GUARANTY BOND STATE BANK v. BANKS et ux.
    No. 4279.
    Court of Civil Appeals of Texas. Texarkana.
    Dec. 1, 1932.
    J. A. Ward, of Mt. Pleasant, for appellant.
    Seb E. Caldwell, of Mt. Pleasant, for ap-pellees.
   BLALOCK, Chief Justice.

On November 10, 1931, in the district court of Titus county, appellant filed this suit against appellees .on a vendor’s lien note, asking for judgment on the note and a foreclosure of the vendor’s lien on a 7-acre tract of land. At the same time it made its affidavit- and bond for writ of attachment which was levied upon the land here in controversy, an 81/4-acre tract near Mt. Pleasant, outside the corporate limits. Appellees did not contest judgment on the note and foreclosure of the vendor’s lien, but resisted the writ of attachment on the 8-acre tract, and claimed a homestead exemption on it. The case was tried without a jury, and judgment was entered for appellant for the amount of the note sued upon, with interest and attorney’s fees, and foreclosing the vendor’s lien on the 7-aere tract, but refusing to foreclose the attachment lien on the 8-acre tract.

The principal question raised on this appeal is the sufficiency of the evidence to sustain the finding and conclusion of the trial court that the 8-aere tract was so impressed with the homestead character, on the date the suit was filed, as to exempt it from writ of attachment for debt.

Appellees bought and paid for the land in January, 1928. It was bought from 8. W. Weber and wife, and lay near their home. Mrs. Weber was the sister of Mrs. Banks, and the location was chosen in order that Mrs. Banks might some day have a home near her sister. In the fall of 1928, appellee dug a little pool or pond toward the rear of the tract, cleared a part of the timber away, constructed a fence so as to partially inclose the tract, planted two or three dozen berry and grape plants, and set out about fifteen silver maple trees on the front part near the road upon which the tract faced, at a total cost of about $150. Three years later, when this suit was filed, some of the shade trees had died; but the record does not show whether' ■the pool was still there, or whether appellees ever went back to cultivate the berry and grape plants, nor whether they still live. No ■house of any kind is on the tract, nor had any preparation been made to build any kind of ■house, though Mr. Banks testified that he spoke to “somebody” about building a house there, but “thought it better to let the land lay like it was than to gó and put a house on it for somebody.” Appellees also thought they probably would already have built a residence had it not been for the expenses incident to the sickness of Mrs. Banks and the education of the daughter.

Appellee Banks was employed as agent or superintendent'for an insurance company under a contract which required him to live and work at such places as the company directed. In 1922 he was living in Bonham, Tex. Under orders of his company he removed with his family in September, 1928, to Little Rock, Ark., where he lived until September, 1931, at which time he went to Longview, Tex., and he now lives at Gilmer, Texas. At eaqh of said places he rented a place in which to live. At no time has he lived at Mt. Pleasant or in. Titus county.

Appellees had no definite idea as to when they might build and occupy the property. Mr. Banks testified: ‘‘Well, my intentions were to come and occupy it wlien I wasn’t drawing a handsome salary from the company.” He also stated that he had spoken to the company about transferring him to Mt. Pleasant and, “I might come here later,” hut that he intended to remain with the company as long as that should be the most profitable occupation that he could get. Under his contract of employment, the company could transfer him from place to place at will; hut the contract was subject to termination by either party at will. He did not intend to move on the place as long as his connection with the insurance company was profitable unless he was, perchance, stationed at Mt. Pleasant. Appellee owned no other realty.

To impress the homestead character upon unoccupied property, there must he a present bona fide intention to dedicate it to homestead uses, coupled with acts of preparation for occupancy within a reasonable time, and those acts must be of such nature as to give notice of such intention. Franklin v. Coffee, 18 Tex. 413, 70 Am. Dec. 292; Fort v. Powell, 59 Tex. 321; Espinoza v. Cocke (Tex. Com. App.) 276 S. W. 1095; Cameron v. Gebhard, 85 Tex. 610, 22 S. W. 1033, 34 Am. St. Rep. 832; Speer’s Marital Rights, p. 554; Brown v. Logan (Tex. Civ. App.) 7 S.W.(2d) 189; Churchwell v. Sweeney, 29 Tex. Civ. App. 166, 68 S. W. 185.

Unquestionably appellees bought the property for homestead purposes, but after careful examination of the statement of facts we cannot find any evidence indicating that they intend or expect to occupy it at an early date, or within a reasonable time, or at any definite time. Each of the appellees states that they expect to stay with the insurance company as long as the employment is satisfactory, as long as he draws a “handsome salary,” as long as the employment is profitable, regardless of places to which he may be sent by his employer. Such a fixation of time for occupancy is too indefinite. Regardless of the intentions of the appellees when the tract was bought, and regardless of the causes which interrupted the preparations begun in the autumn of 1928, we think it clear that three years later when this cause was begun, a notion had been born that they might occupy it at some indefinite and distant time in the future, which depended upon the possible happening of an indefinite event. Our law is lenient and reasonable with the citizen who desires to establish a homestead for himself and family. A cabin of logs or a shelter of the plainest timbers dedicated to homestead uses will suffice to meet the requirements for protection under this law, but in turn the citizen must be reasonable with the law; he cannot expect the protection of homestead exemption when he himself has no definite idea as to when he will carry his family to the haven for which he pleads exemption. Johnson v. Burton, 39 Tex. Civ. App. 249, 87 S. W. 181; Cobb v. Collins, 51 Tex. Civ. App. 63, 111 S. W. 760.

• This case does not come within that class of cases in which occupancy hinges upon the time required to pay for the property, as in Brown v. Logan, supra, nor the time required to lift a lien as in the Espinoza Case, nor are appellees in the act of building a home for early occupancy as in Cameron v. Gebhard. These eight acres were fully paid for and clear of liens. Appellees were not temporarily away. They had never lived upon, or near, this land, and whether they would ever move to it depended upon a contingency which may never materialize.

We are of the opinion that the trial court erred in holding that the land in question was impressed with the homestead character. It is therefore ordered that the judgment of the trial court be reformed to declare a foreclosure of the attachment lien on the 8¼ acres of land. In all other respects the judgment is affirmed. Costs are adjudged against appellees.


text:
    MASSEY v. GREENWOOD.
    No. 4391.
    Court of Civil Appeals of Texas. Texarkana.
    Dec. 1, 1932.
    Rehearing Denied Jan. 19, 1933.

      Hiner & Pannill, • of Fort Worth, and Wynne & Wynne, of Longview, for .appellant.
    Scott & Hall, of Marshall, for appellee.
   BLALOCK, Chief Justice.

On September 12, 1932, appellee C. F. Greenwood, plaintiff below, filed suit against appellant Otto Massey, defendant below, the suit being in trespass to try title to recover seven-eighths of the oil, gas, and other minerals under 31 acres of land, and upon sworn allegations prayed for the appointment of a receiver without notice to take possession of the property, the accounts and records pertaining thereto, and- the income therefrom during the pendency- of the litigation. .Without notice to defendant, the court, in vacation, on the day. the suit was filed, appointed W. O. Holloway as receiver of the. property described in plaintiff’s petition, directing the said receiver to’ take possession of said property, the oil wells located therein, the accounts and’records ■ connected therewith, and further empowered said receiver .to operate and develop the properties, and sell oil therefrom, all.subject to..further orders of the eour.t. The defendant was enjoined from interfering with the receiver. Complaining of said order, appellant has timely prosecuted this appeal. ■

Appellant contends that plaintiff’s petition did not allege facts authorizing the appointment of a receiver. After alleging plaintiff’s ownership of an undivided sev.en-eighths of the oil, gas, and other minerals in and under the land, and that defendant was in possession after ejecting plaintiff, the petition alleged as facts that there are two producing oil wells on the property; that oil is being produced therefrom; that the oil is being marketed ; that plaintiff is entitled to the proceeds from the sale of said oil; that due to the entry of defendant on said land, and thei claim he is making on it, the purchasers of the oil have refused to pay plaintiff for thei oil and are now refusing to pay him for oil now being taken from. said wells; that unless a receiver is appointed the funds now owing to plaintiff for oil which has been previously run will be lost, and the funds which will continuously become due him from day to day by reason of oil being taken and marketed from said producing wells will be lost.

Our statutes provide that a receiver may be appointed “ * * * On the application of the plaintiff or any party whose right to or interest in the property or fund or ■ the proceeds thereof is probable, and where it is shown that the property or fund is in danger of being lost, removed or materially injured.” We think the facts pleaded by plaintiff are sufficient to state a basis for the appointment of a receiver, as a legal remedy under the statute, and therefore it was unnecessary for plaintiff to plead the insolvency of defendant, or his nonresidence, or the inadequacy of legal remedy, as contended by appellant. Article 2293, subd. 1, R. S. 1925; Hunt v. State (Tex. Civ. App.) 48 S.W.(2d) 466.

Appellant also contends that the petition did not plead the pressing necessity .justifying the appointment of a receiver without notice. The sworn petition alleged as facts that plaintiff is the owner of the property, that he has been ejected, that the oil • is being produced and marketed daily, that payment therefor has been and is being refused him; that unless a receiver be appointed forthwith, moneys now owing for oil al- . ready- sold will be lost to plaintiff, and “the funds which will continuously become due him from day to day by reason of oil being • taken and marketed from said producing wells will be lost.” The able trial judge who made the appointment has had -a wide .experience in oil field.litigation in the locality where the property is situated. He considered the removal of the property under the circumstances pleaded a sufficient emergency to warrant the action taken. The appointment of a receiver is ancillary to the main suit, and serves the purpose of preserving the subject-matter pending final determination of the litigation. It may be vacated or dissolved at any time upon proper showing that the allegations upon which it was based are untrue, or in this case that the receiver is not needed to prevent the property being removed or lost. We are unwilling to say that in this case the trial court has abused the discretion which the law placed with it. Hunt v. State, supra; Richardson v. McCloskey (Tex. Civ. App.) 228 S. W. 323; Temple State Bank v. Mansfield (Tex. Civ. App.) 215 S. W. 154; Baptist Missionary Convention v. Knox (Tex. Civ. App.) 23 S.W.(2d) 781.

Appellant calls attention to the fact that this suit in trespass to try title was neither brought in the county where the land is situated, nor in the county where defendant lives. This is urged as an additional reason why the order appointing the receiver was improvident. The contention raises a question of venue, not one of jurisdiction, and is ■ without merit as applied to the question here for determination.

. The judgment of the trial court is affirmed.


author: BLALOCK, Chief Justice

text:
    O’HERIN v. NEAL et ux.
    No. 4273.
    Court of Civil Appeals of Texas. Texarkana.
    Dec. 1, 1932.
    Rehearing Denied Dec. 15, 1932.

      Campbell, Lee, Taylor & Leak, of Longview, for appellant.
    George Prendergast, of Marshall, and Edwin Lacy, of Longview, for appellees.
   BLALOCK, Chief Justice

(after stating the case as above).

Appellant presents as grounds for reversal the action of the court in holding the contract inadequate and insufficient to form the basis of an action for specific performance. The contract reads as follows:

“I am to pay H. T. Neal $750.00 for one-fourth interest in royalty.
“[Signed] P. T. O’Herin.
“I will deliver to P. T. O’Herin for $750.00' J. Z. Form without change a royalty deed for one-fourth interest in 41 ½ acres laying northwest of Kilgore, Texas, and joining the West Daniel Land.
“[Signed] H. T. Neal.
“Same to be executed on or before 2/23/1931.”

It will be noted that the instrument is not dated. It has no caption, is not acknowledged, and does not otherwise indicate when or where it was executed. It carries no field note description, and does not name the head-right, the county, or the state within which the land referred to is located. It does not indicate whether it refers to land which Neal owned in fee, or to land upon which he happened to own min’eral or royalty rights. The instrument within itself does not describe any land, nor does it furnish a key by which the land may be identified. It does not state in what county Kilgore is located, and we presume the fact would have been proven if Kil-gore had been an incorporated town in this state. Cassidy-Southwestern Commission Company v. Chupick Bros. (Tex. Civ. App.) 225 S. W. 215.

To form a proper basis for a suit for specific performance, a contract should be sufficiently definite and specific in its terms to reasonably define within itself the rights of the respective parties thereto. A prayer for specific performance of a contract for the sale of land, or interest in land, will not be heard unless the contract describes the land to be conveyed, or within itself furnishes the key or means by which the land may be identified. Patton v. Rucker, 29 Tex. 409; Jones v. Carver, 59 Tex. 293; Whitehead v. Reiger (Tex. Com. App.) 6 S.W.(2d) 745. Resort to extrinsic evidence where proper at all is for the purpose of identifying the land from data given in the contract, and not for the purpose of supplying the location or description. Higgins v. Bankers’ Mortgage Company (Tex. Com. App.) 13 S.W.(2d) 683.

We believe the contract of sale involved in this case and quoted above is void for patent ambiguity, and that the trial court did not err in excluding it.

The judgment below is therefore affirmed, and all costs adjudged against the appellant.


author: WALTHALL, Justice.

text:
    DALLAS HOTEL CO. v. McCUE.
    No. 2791.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 9, 1933.
    Rehearing Denied Feb. 23, 1933.
    Martin B. Winfrey and Philip I. Palmer, both of Dallas, for appellant.
    . White & Yarborough, of Dallas, for ap-pellee.
   WALTHALL, Justice.

This is a second appeal of this case. A statement of the case and the issues there presented and discussed are found in 25 S.W.(2d) 902, to which we refer for a more extended statement than we think to give here.

• Miss Mary McCue sued the Dallas Hotel Company to reeoyer on an alleged breach of contract of employment. She alleges that she was employed by the Dallas Hotel Company by the year, on a monthly salary of $85 per month, as mail clerk; that she had been so employed for over two years at the time of her discharge from service. By a trial amendment not found in the record but referred to in the briefs of both parties, and so submitted to the jury, she alleges in the alternative that her employment was from month to month. The basis of her suit is that she was discharged from service without cause, stating certain circumstances as having occurred, and that by reason of such discharge the appellant owed her for eleven months’ salary amounting to the sum of $935, stating the date and time, and in the alternative on a month to month employment, for the sum of $85 for the current month of service. She alleges that the manner of her discharge, stating same at much length, by the hotel company and manager, was malicious and wanton, the language used in discharging her was abusive, that he took her by the arm, shoved and dragged and pulled her out of the office of the mailing department in the presence of others, without cause or justification, and for which she sues for exemplary damages.

Appellant answered, and among other defenses answered by general and special denial ; that the discharge was for good cause, in that appellee refused to comply with a reasonable request made to her in the scope of her duties; that her discharge was without abusive language or mistreatment of any kind.

On special issues submitted the jury found all issues in favor of appellee, except that in response to issue No. 9, the jury found that R. B. Ellifritz, in discharging Miss McOue, did not use any physical voilence upon her person ; found that appellee was employed on á month to month salary; as a result of being discharged without good cause appellee’s damage was assessed at .$85, the contract value of her services for the current month of her service; the jury found and assessed exemplary damages at $500.

The court entered judgment for appellee in the sum of $585, and the Dallas Hotel Company appeals.

Opinion.

We overrule appellee’s motion to strike out the statement of facts.

On the trial the court permitted appellee to testify, over objection, that a few days after her discharge her mouth “all broke out with black sores and remained there over a week,” and that it “caused her annoyance and suffering.”

Appellant submits that the admission of such testimony was error. Appellee contends that other testimony having been offered showing that appellee’s discharge, and the manner of her discharge, put her into a nervous condition and that such testimony was a legitimate and proper inquiry as to whether or not the sores in the mouth were a reaction to the nervous condition testified to.

We think the admission of the evidence by appellee was error and on a material issue. On the former trial appellee was permitted to testify to the sores appearing ih appellee’s mouth, and what the doctors said about it.

In discussing the admission of the evidence the Dallas Court of Civil Appeals said the evidence of what the doctors said, “and ap-pellee’s conclusion as to the cause of the soreness in her mouth should not have been admitted. It is in part hearsay, and in part an opinion of the non-expert witness in reference to a matter about which such a witness cannot give a conclusion. Such evidence being on a material issue, the over-ruling of the objection is reversible error.” The only difference to the objection now and on the former trial is that the hearsay feature of the evidence on the former trial is eliminated. The evidence of appellee here, as on the former trial, is that of a nonexpert witness and about which she could not give a conclusion, nor could the jury conclude from the evidence of the witness that the sores in her mouth were the result of her discharge or the manner of her discharge. It is not made to appear by other evidence that the appearance of sores .in the mouth is a natural result of a discharge or the manner of a discharge from service, so that it could be reasoned that such result would naturally follow from such discharge.

We think points 2 and 3 are without merit.

The evidence does not show, in our opinion, that appellee was depending upon a custom .as to who should or should not open other people’s telegrams in her charge, as mail clerk. Nor was it a mixed question of law and fact to submit to the jury a question of what was the understanding of appellant and ap-pellee as to the term of appellee’s employment, whether by the year or by the month. There was no question but that appellee was employed. There was no evidence that her employment was for a shorter time than one month. Her employment, though “at will,” would seem to be for- a month, as found by the jury. No injury is shown.

The jury found that appellee was discharged without reasonable cause, and we think the evidence was sufficient to sustain the finding.

For the reason that improper evidence was admitted on the issue of exemplary damages the case must be reversed and remanded, and it is so ordered.

Reversed and remanded.


author: LATTIMORE, Justice.

text:
    TEXAS EMPLOYERS’ INS. ASS’N v. KELLY et al.

    No. 12732.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 19, 1932.
    Rehearing Denied Dec. 24, 1932.
    C. T. Gettys, of Decatur, and Todd & Crowley, T. D. Starnes, Jr., and S. A. Crowley, all of Fort Worth, for plaintiff in error..
    McCormick, Bromberg, Deftwieh & Carring-ton, of Dallas, and Raymond E. Buck, of Fort Worth, for defendants in error.

       Writ of error granted.

   LATTIMORE, Justice.

This is an appeal from a judgment in favor of Mrs. Kelly against appellant for workmen’s compensation for the death of her husband, James E. Kelly,, as an employee of the Texas Worth Tool Company, a corporation.

G. W. Mennis was president, general manager, and sales manager of the Texas Worth Tool Company. He also had in his individual right considerable oil properties and an airplane. When this airplane was used in the corporation’s business, it paid for such use. Some three months before the accident, Mennis made an arrangement with deceased, Kelly, that he, Kelly, would pilot Mennis’ airplane, as and when needed, for- $10 a day and expenses, and he actually so worked on an average of three days a week. Each time Mennis reported his expenses of such trips, he included as such the $10 a day and expenses to Kelly, and the corporation paid same. On this occasion, Mennis, piloted by Kelly, went from Fort Worth to Oklahoma City on company business, by way of Wichita Falls, where he had personal business. Returning from Oklahoma City to Fort Worth, bringing a prospective company employee to show him the Texas Worth Tool Company establishment at Fort Worth, the plane crashed in Wise county, and Mennis and Kelly were killed.

The Texas Worth Tool Company carried workmen’s compensation insurance with appellant company. Kelly’s pay was not included in the pay roll of the company, on which premiums for the policy sued on were computed. " \

On special issues the jury found that Kelly was an employee of the Texas Worth Tool Company, was in the course of his employment, was not in the employ of Mennis, that $70 a week was an average. weekly wage, fair and just- to all parties, and that Mennis was not an independent contractor on this trip, nor was deceased, Kelly.

It has been a pleasure to study the well-ordered brief of counsel for appellant, who contend the undisputed evidence shows Kelly was an-independent contractor, or, to put it where the burden of proof lies, that the evidence does not show Kelly to have been the company’s employee, and propound five elements of the six set out in Shannon v. Western Indemnity Co. (Tex. Com. App.) 257 S. W. 522, by which an- independent contractorship is tested:

(1) Is a person under obligation to work exclusively for tbe person claimed to be bis employer?

(2) Tbe manner in wbicb tbe person is to be compensated.

(3) Does tbe claimed employer furnish tbe materials and appliances for tbe work?

(4) Is tbe work generally and distinctly recognized as employment?

(5) Wbo bas tbe right to hire and fire? Security Union Ins. Co. v. McLeod (Tex. Com. App.) 36 S.W.(2d) 449.

(6) Wbo bas tbe right to exercise tbe ultimate control over tbe details of tbe work? As evidentiary of tbe issue set out in No. 6, wbo exercised such control? Southern Surety Co. v. Shoemake (Tex. Com. App.) 24 S.W.(2d) 7.

We agree that each of tbe above are proper instruments to be used in measuring tbe case, though the first five are assistant to No. 6, wbicb generally must be satisfied to reach a conclusion. Also, generally, each case must stand on its own legs, looking at all tbe facts and circumstances.

In this case tbe fact that Kelly was free to follow other employment at other times is not entitled to much weight. It was not a type of work which required bis constant attendance on bis employer to accomplish that portion of the company’s business which was in tbe line of work done by Kelly. Tbe compensation of $10 a day and expenses, without regard to bow much or bow little work was done, was indicative of tbe relation of master and servant. As far as Kelly was concerned, tbe Texas Worth Tool Company was supplying tbe materials and appliances for bis work, i. e., be was not supplying them, and the person wbo did furnish them had the right to stand in loco the company, and, according to tbe belief of the jury, under circumstances justifying their belief; did so.

The fourth element is by the development of our industrial and social fabric becoming of lesser importance. Attendance upon tbe needs of tbe human race has become more and more specialized — the gardener of yesterday is tbe horticulturist of to-day, with his assistants, the tree surgeon, the soil analyst, tbe landscape artist, and their apprentices. Bach brings to tbe task learning not had by bis employer — so also tbe growth of “Big Business,” tbe increasing co-ordination of service in not only various communities, but also tbe nations under one • executive bead, until now it is not uncommon for one corporation to guide tbe distribution of that service on opposite sides of tbe globe. Such gigantic organizing makes necessary tbe employment of tbe scientific learning of individuals which may be peculiar to them alone. Our huge department stores employ social service workers practicing a highly specialized profession; our railroads hire engineers who must stand a scientific examination ; and' doctors, chemists, and geologists find themselves hired to serve alone tbe will of a corporation, although such service requires tbe application of methods known only through long study and experiment, wbicb application tbe employer may have a right to direct, but wbicb be dare not, lest bis unscientific interference wreck the very thing tbe employee is hired to do. Coming to tbe peculiar matter of flying an airplane, recent years have seen tremendous development of commercial flying service with corporations capitalized to the millions of dollars, hiring all their pilots as wage-earners, with tbe undoubted relation of master and servant. Tbe courts have not found it difficult to apply the law to tbe situation, declaring pilots employees where tbe facts justified it. Hinds v. Dept. of Labor & Industries, 150 Wash. 230, 272 P. 734, 62 A. L. R. 225; Famous Players Lasky Corp. v. Industrial Accident Comm. of California, 194 Cal. 134, 228 P. 5, 34 A. L. R. 765; Stites v. Universal Film Mfg. Co., 2 Cal. Ind. Acc. Comm. 653; Constitution Indemnity Co. v. Shytles (C. C. A.) 47 F.(2d) 441; Schonberg v. Zinsmaster Baking Co., 173 Minn. 414, 217 N. W. 491.

From what bas been said it is apparent that tbe test of ultimate right to control tbe details of tbe work is not to be confused with tbe ability to do so wisely. Tbe president of a railroad probably has tbe contractual right to tell an engineer what steam to carry in his boiler, but leaves this to tbe trained mind of tbe engineer, realizing that probably be would, if he interfered, be

“Right, right, right as he rolled along But just as dead as if be were wrong.”

, Kelly came and went as Mennis directed; that Mennis did not tell him when to kick out bis rudder bar, or when to “gun” tbe ship, carries no contradiction of tbe duty of Kelly to obey his employer. It merely recognized tbe specialized nature of Kelly’s employment. This principle is best illustrated by tbe Famous Players Lasky Corp. Case, s.upra, where tbe pilot was told to fly at a named height; be at first declined, then obeyed, and was killed. This record is wholly void of any evidence that Kelly exercised or claimed any control over bis work and exercised none except such of those details that were beyond tbe ability of bis employer ; i. e., tbe flying of tbe airplane. He went when, where, and by that route and carried those people and that baggage as his employer told him to do.

Tbe right to hire and fire Kelly was in Mennis, whether Kelly was working for Men-nis or for tbe Texas Worth Tool Company. So this element sheds no light on this case and differentiates it from tbe McLeod Case, supra. While Kelly was not carried on the pay roll of the Tesas Worth Tool Company, as that document was properly called, still that company was knowingly and 'intentionally paying his hire of $10 a day under the head of expenses of General Manager Men-nis on company business.

The “usual course of the trade, business, profession or occupation” of the Texas Worth Tool Company was inter alia to find purchasers for its rock bit cones. To employ a driver for a vehicle to carry those representing the company to confer with salesmen regarding making a sale of its products seems as much the usual course of business as to employ a driver of a vehicle to deliver the products after same are sold. Constitution Indemnity Co. v. Shytles, supra, interpreting the Texas Compensation Law, which is cited with approval in Commercial Casualty Ins. Co. v. Strawn (Tex. Civ. App.) 44 S.W.(2d) 805.

The issue of amount of compensation was submitted under the third subdivision of section 1 of article 8309, Rev. Statutes of 1925. While there is some doubt whether there is sufficient evidence to raise the issue' of determination of amount under subdivision 1 or 2 of section 1 of article 8309, we need not enter into a lengthy discussion of the evidence, for it appears that the minimum wage paid pilots in regular employment, according to testimony most favorable to appellant, was $50 a week. So that 60 per cent, of same would much exceed the maximum compensation of $20 a week allowed by statute. Thus, if any error was made in the law applicable to determining the amount a week, it was harmless. Bankers’ Lloyd’s v. Chamness (Tex. Civ. App.) 31 S.W.(2d) 1108.

Numerous objections are made to the refusal of the court to declare a mistrial for remarks of counsel for appellee. Appellant objected to questions propounded by appel-lee to a witness, whereupon counsel for ap-pellee stated: “You went into it and now when I do, you raise an objection,” and twice offered that both sides withdraw all objections to all testimony and let every witness tell “what they want to.” We cannot too severely condemn the practice of side bar remarks by counsel. It does no good, has no effect except to stir up prejudice and appeal to ignorance. It takes the jury’s minds off of the legitimate facts, and creates in the minds of the jury and witnesses an impression that the suit is a contest between lawyers, not between right and wrong. It has been publicly condemned by the American Bar Association, is forbidden by rules of our Supreme Court, and should be sternly quelled by the trial judge. If officers of the court set an example of defiance of those rules which experience has formulated for us, how can they expect the citizenry to hold the courts, including therein the bar, in that esteem so essential to the orderly conduct of our affairs? We presume that the trial judge would have promptly stopped the remarks and instructed the jury appropriately if counsel for appellant had objected. This he did not do, but only demanded the discharge of the jury. We do not believe the offense to be of any-sueh gravity.

Counsel for appellee stated in argument to the jury:

“We have here the defendants in this case engaged in what we presume was the lucrative business of writing insurance upon the sacred laborers of this state for profit. They didn’t have to engage in that business but they did it because it lined the pockets of the stockholders with silver. They are called upon now to make good the risk which they assumed. * * *
“They say a pilot isn’t included in that policy and that they didn’t get money for that and that if they pay this out, why it will take money they want to pay out in dividends. I will answer that later. * * *
“When this case is brought to you, who do you find here defending the sacred treasury of these insurance companies? Do you find the estate of G. W. Mennis or the Texas Worth Tool Company? No, you do find the two insurance companies crying out with the pain of financial penalty; crying out about an honest debt they agreed to pay when they wrote that debt at so much per thousand.”

The evidence shows that appellant offered testimony that premiums were estimated on the pay roll, and that they had received no premium oh the pay of deceased, Kelly. Counsel for appellant admit that no objection was made to this argument until after the speech of counsel was concluded and the jury had retired. It will serve no useful purpose to review the numerous authorities, some of them hopelessly in conflict on this subject, although no two arguments are exactly the same. Some of the argument was proper, some of it was improper. If an objection had been made at the time, the wrongful argument could have been corrected by the court, if counsel for appellee had not done so voluntarily. In the heat of speaking thoughts sometimes shape themselves into speech which counsel would withdraw if the full effect is called to their attention. If not, the court should do so with a plain, clear statement to the jury. We require exceptions to evidence to be so preserved, and why should we make any distinction between the primary (the evidence) and the secondary (the speech on that evidence). It is sometimes said that it is embarrassing to make the objections at the time, but we fail to see how an objection made by obtaining recognition of the court and then quietly to the court making the objection is embarrassing. A trial judge, skilled in bis business and sensitive to it, ought not to find it difficult to provide such procedure and keep it free from any “wrangling or jury play.”

We do not wish to be misunderstood; some argument, like some evidence, is so grave and so fundamentally destructive of the merits of the case as to be fatal to justice. In such case no instruction can save its dire effect, and the jury must be discharged. We do not believe this is such a case.

We have examined all assignments of error. The judgment is affirmed.


author: McCLENDON, Chief Justice.

text:
    SHELTON v. NORTHERN ASSUR. CO., Limited, OF LONDON et al.
    Motion Nos. 7447, 7449.
    Court of Civil Appeals of Texas. Austin.
    Jan. 18, 1933.
    R. T. Miller, of Austin, for appellee.
   McCLENDON, Chief Justice.

Motion by appellees to affirm on certificate, and by appellant to permit filing the record, which was not tendered to the clerk until after the statutory 60-day period had expired. No application for extension of time was filed with this court within the 60-day period, and no excuse for not making such application is shown. With the exception noted be-' low, the Courts of Civil Appeals which have passed upon the question have construed the 1931 amendment to R. S. art. 1839 (chapter 66, § 1, Acts 42d Leg. p. 100 [Vernon’s Ann. Civ. St. art. 1839]) as inhibiting extending the time unless the application is made within the 60-day period. Walker v. Lyles (Texarkana, Tex. Civ. App.) 45 S.W.(2d) 315; Reasonover v. Reasonover (San Antonio, Tex. Civ. App.) 46 S.W.(2d) 382; Reed v. Indemnity Co. (Eastland, Tex. Civ. App.) 47 S.W.(2d) 860; Reese v. Owens (Beaumont, Tex. Civ. App.) 48 S.W.(2d) 697; Van Horn v. Hidalgo (San Antonio, Tex. Civ. App.) 51 S.W.(2d) 641. In Hamilton Motor Co. v. Muckleroy (Tex. Civ. App.) 46 S.W.(2d) 451, the Dallas court held to the contrary; Chief Justice Jones dissenting.

We are not prepared to go the full length of these decisions in holding that Courts of Civil Appeals are without power to grant the extension if not applied for within the 60-day period. We seriously question whether it was the legislative intent to make filing the request within the 60 days jurisdictional. A case might arise in which appellant was providentially hindered from filing the request within the time.

However that may be, the statute does expressly impose the duty upon appellant of filing the request before the right to an affirmance on certificate arises; and, where the application, subsequently filed, presents no reasonable excuse in this regard, we think such discretionary powers as the court may otherwise have in the premises are not properly invoked.

The Texas civil judicial council in its fourth annual report (page 21) has recommended an amendment to article 1839 in this respect.

The motion for leave to file the transcript is overruled, and that to affirm' on certificate is granted. ■

Motion for leave to file transcript overruled ; motion to affirm on certificate granted.


author: LATTIMORE, Judge.

text:
    A. W. AMMONS v. STATE.
    No. 15839.
    Court of Criminal Appeals of Texas.
    Jan. 18, 1933.

      Martin & Shipman, of Abilene, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

Conviction for burglary; punishment, two years in the penitentiary.

We find on file in the office of our clerk an affidavit, in due form, made by appellant before the district clerk of the trial court, requesting that appellant be permitted to with-, draw his appeal. The request is granted.

The appeal is abated.


author: CALHOUN, Judge.

text:
    Gene BUCHANAN v. STATE.
    No. 15773.
    Court of Criminal Appeals of Texas.
    Feb. 8, 1933.
    B. F. Reynolds and Jeff A. Fowler, both of Throckmorton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, Judge.

The offense, driving automobile while intoxicated; the punishment, confinement in the county jail for twenty days.

The record is before us without a statement of facts or bills of exception. No defect either in the indictment or procedure has been pointed out or has -been perceived. No question is presented for review.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


text:
    Clifton BURTON v. STATE.
    No. 15859.
    Court of Criminal Appeals of Texas.
    Feb. 8, 1933.
    A. J. Thompson, of Nacogdoches, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

Conviction for theft; punishment, two years in the penitentiary.

We find in the record neither statement of facts nor bills of exception. The indictment, the charge of the court, the judgment and sentence appear regular.

The judgment will be affirmed.


author: MORROW, Presiding Judge.

text:
    Wallace W. CAREY v. STATE.
    No. 15813.
    Court of Criminal Appeals of Texas.
    Jan. 25, 1933.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

The offense is burglary; penalty assessed at confinement in the penitentiary for four years.

Upon the written request of the appellant, duly verified by his affidavit, th§ appeal is dismissed.


text:
    Melton COX v. STATE.
    No. 15849.
    Court of Criminal Appeals of Texas.
    Feb. 8, 1933.
    John W. Scott, of Longview, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

The offense is the unlawful possession of equipment for the manufacture of intoxicating liquor; penalty assessed at confinement in the penitentiary for one year.

The indictment is regular and regularly presented. The facts heard in the trial court are not brought forward for review. We find no bills of exception complaining of the ruling of the court. We have perceived no fault or irregularity in the procedure which would nullify the conviction or require discussion.

The judgment .is affirmed.


author: HAWKINS, Judge.

text:
    J. O. CRIM v. STATE.
    No. 15855.
    Court of Criminal Appeals of Texas.
    Feb. 8, 1933.
    Crawford & Fletcher, of Grand Saline, and Earl M. Greer, of Wills Point, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Judge.

Conviction is for possessing intoxicating liquor for the purpose of sale; punishment being two years’ confinement in the penitentiary.

The record contains neither statement of facts nor bills of exception.

We observe that in pronouncing sentence upon appellant the court overlooked giving him the benefit of the Indeterminate Sentence Law (Code Cr. Proc. 1925, art. 775), and directs his imprisonment in the penitentiary for two years. It should have been for not less than one nor more than two years. The sentence is reformed to so read.

As reformed, .the judgment is affirmed.


text:
    R. L. CUSTER v. STATE.
    No. 15801.
    Court of Criminal Appeals of Texas.
    Jan. 25, 1933.
    M. E. Lawrence, of Eastland, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

Conviction for theft; punishment, two years in the penitentiary.

We find in the record an affidavit made by appellant asking to be permitted to withdraw his appeal. The request is granted.

The appeal is dismissed.


text:
    Jim DAVENPORT v. STATE.
    No. 15750.
    Court of Criminal Appeals of Texas.
    Jan. 25, 1933.
    T. A. Bath, C. L. Williams, and A. H. Wald-rop, all of Henderson, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

The offense is murder; penalty assessed at confinement in the penitentiary for twelve years.

The indictment is regular and regularly presented. A report of the evidence that was heard before the trial court is not brought up for review. Upon examination of the record, we have perceived no departure from the proper procedure which .would warrant this court in reversing the judgment. The charge of the court fully covers the subject.

There is some complaint in the motion for new trial of the action of the court in ruling upon the admission and rejection of the evidence. There are no bills of exception disclosing that the matter was called to the attention of the trial court at the time the evidence was received. There is nothing in the record which enables this court to determine that in the ruling of the court error was committed. As stated above, the motion for new trial is supported by no bills of exception, and no facts are produced in support of the aver-ments in the motion.

In the judgment and sentence, the court failed to take note of the Indeterminate Sentence Law, as contained in article 775, C. 0. P. 1925. The judgment will be reformed so as to condemn the appellant to confinement in the state penitentiary for a period of not less than two nor. more than twelve years.

As reformed, the judgment is affirmed.


text:
    Johnnie DOBBS v. STATE.
    No. 15483.
    Court of Criminal Appeals of Texas.
    Jan. 11, 1933.
    W. H. Barnes and Thos. R. Bond, both of Terrell, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, Judge.

Selling intoxicating liquor is the offense; punishment assessed at confinement in the penitentiary for one year.

An affidavit in due form has been filed in this court showing that the appellant, since perfecting his appeal, has died.

The appeal is abated.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


text:
    Ed GALLAGHER v. STATE.
    No. 15828.
    Court of Criminal Appeals of Texas.
    Feb. 8, 1933.
    Jno. A. Cook, of Mt. Pleasant, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Judge.

Conviction is for possessing intoxicating liquor for the purpose of sale; punishment being assessed at two years’ confinement in the penitentiary.

The record is before this court without statement of facts or bills of exception.

The proceedings appear to be regular, except that we note in passing sentence upon appellant the court directed that he be confined in the penitentiary for two years. The sentence is reformed in order to give appellant the benefit of the Indeterminate Sentence Law, and his. imprisonment is directed to be for not less than one nor more than two-years. Article 775, C. C. P., as amended by Acts 1931, c. 207, § 1 (Vernon’s Ann. C. C. P.. art. 775).

As thus reformed, the judgment is affirmed.


text:
    Ed GALLAGHER v. STATE.
    No. 15829.
    Court of Criminal Appeals of Texas.
    Feb. 8, 1933.
    Jno. A. Cook, of Mt. Pleasant, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

Conviction for transporting intoxicating liquor; punishment, one year in the penitentiary.

The record is here without statement of facts or bills of exception. Appellant pleaded guilty. The indictment, the charge of the court, the judgment, and sentence appear regular.

The judgment will be affirmed.


text:
    Alex GLENN v. STATE.
    No. 15776.
    Court of Criminal Appeals of Texas.
    Feb. 8, 1933.
    T. J. Flewharty, of Sulphur Springs, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, Judge.

The offense, driving automobile while intoxicated; the punishment, 30 days’ confinement in the county jail.

The record is before us without a statement of facts or bills of exception. No de-feet either in the indictment or procedure has been pointed out or has been perceived. No question is presented for review.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


text:
    John HURST v. STATE.
    No. 15862.
    Court of Criminal Appeals of Texas.
    Feb. 1, 1933.
    W. H. Murchison, Jr., of Haskell, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

The offense is burglary; penalty assessed at confinement in the penitentiary for two years.

Upon the written request of the appellant,. duly verified' by his affidavit, the appeal is ordered dismissed.


text:
    Finn INGRAM v. STATE.
    No. 15519.
    Court of Criminal Appeals of Texas.
    Jan. 18, 1933.
    Curtis Douglass, of Panhandle, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

Conviction for transporting intoxicating liquor; punshment, one year in the penitentiary.

There are no bills of exception. The state’s testimony makes out a clear case of transporting intoxicating liquor. That of appellant presents a direct denial of such conduct. It would serve no useful purpose to set out the testimony of either side at length. The jury have accepted the testimony of the state witnesses, and we must uphold this exercise of the power confided in them by statute. ,

The judgment will be affirmed.


text:
    Albert LOGAN v. STATE.
    No. 15512.
    Court of Criminal Appeals of Texas.
    Jan. 4, 1933.
    M. E. Gates, of Huntsville, for appellant
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, Judge.

The offense, possessing intoxicating liquor for the purpose of sale; the punishment, two years in the penitentiary.

The record is before us without a statement of facts or bills of exception. No defect either in the indictment or procedure has been pointed out or has been perceived. No question is presented for review.

The judgment and sentence are improperly entered, in that they fail to take note of the Indeterminate Sentence Law as set forth ip article 775, C. C. P. 1925. The sentence will be reformed in that particular so as to declare that the appellant shall be confined in the penitentiary for a period of not less than one nor more than two years.

As reformed, the judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


text:
    Fred MOUNGER v. STATE.
    No. 15793.
    Court of Criminal Appeals of Texas.
    Feb. 8, 1933.

      Sisco & McCullough, of McKinney,' for appellant.
    -Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, Judge.

The offense, theft of chickens; the punishment, 60 days’ confinement in the county jail.

The record is before us without a statement of facts or bills of exception. No defect either in the indictment or procedure has been pointed out or has been perceived. No question is presented for review.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


text:
    John NICOLS and Josephine Goodman v. STATE.
    No. 15489.
    Court of Criminal Appeals of Texas.
    Jan. 25, 1933.
    Lamar Bethea, of Bryan, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

The conviction is for the unlawful possession of intoxicating liquor for the purpose of sale; penalty assessed at confinement in the penitentiary for one year.

The appellants, John Nicols and Josephine Goodman, were each charged by indictment with the possession of intoxicating liquor for the purpose of sale. A plea of guilty was entered. Much evidence was presented by the state going to show the truth of the aver-ments. An application for a suspended sentence was made and submitted to the jury. No legal questions are presented for review.

The judgment is affirmed.


text:
    John W. POPEJOY v. STATE.
    No. 15600.
    Court of Criminal Appeals of Texas.
    Feb. 1, 1933.
    Lackey & Lackey, of Stinnett, for appellant. *
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

The conviction is for the unlawful possession of intoxicating liquor for the purpose of sale; penalty assessed at confinement in the penitentiary for two years.

It has been made known to this court by proper affidavit that the appellant died on January 15, 1933, by reason of which the appeal is abated.


text:
    Roy SMITH v. STATE.
    No. 15573.
    Court of Criminal Appeals of Texas.
    Feb. 1, 1933.
    E. T. Chandler, of Stephenville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, Judge.

The offense, child desertion; the punishment, one year in the penitentiary.

The record is before us without a statement of facts or bills of exception. No defect either in the indictment or procedure has ■been pointed out or has been perceived. No question is presented for review.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


text:
    A. C. WHITEHEAD v. STATE.
    No. 15858.
    Court of Criminal Appeals of Texas.
    Feb. 1, 1933.
    Kirby, King & Overshiner, of Abilene, for appellant.
    Lloyd W. Davidson, State’s Atty., of'Austin, for the State.
   HAWKINS, Judge.

Conviction is for transporting intoxicating liquor, punishment being one year in the penitentiary.

Appellant has filed his affidavit stating that he does not desire to further prosecute his appeal. In compliance with his request, the appeal is dismissed.


author: ALEXANDER, Justice.

text:
    BENDER MOTOR COMPANY v. N. W. ROWAN.
    No. 947.
    Court of Civil Appeals of Texas. Waco.
    Nov. 25, 1932.
    Rehearing Denied Feb. 2, 1933.
    Witt, Terrell & Witt, of Waco, for appellant.
    Jos. W. Hale and George Clark, both of Waco, for appellee.
   ALEXANDER, Justice.

At a former date, this court reversed and remanded this cause to the trial court on account of certain errors fully set out in its opinion. See 33 S.W.(2d) 263. It appears, however, that at that time the appellant’s brief did not contain any assignments of error. The appellant had previously secured from this court an order authorizing it to withdraw its briefs and to attach thereto its assignments of error. However, this court reversed the cause before such assignments were actually attached to the brief. The Supreme Court thereafter held that this court had authority to permit the briefs to be amended by attaching the assignments of error thereto, but held that this court erred in considering such assignments of error and in reversing the cause before such assignments were actually attached to or included in the briefs. The case was therefore reversed and remanded to this court for further consideration. See 50 S.W.(2d) 802. The assignments of error are now properly attached to the brief in accordance with the permission heretofore granted, and are before the court for consideration.

We have again very carefully considered the errors assigned, and are of the opinion that the case must be reversed for the reasons stated in the former opinion of this court.

The judgment of the trial court is reversed, and the cause remanded for a new trial.


author: JONES, Justice.

text:
    Ralph Rankin WILLIAMS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Nov. 18, 1977.
    Rehearing Denied Jan. 31, 1978.
    Jack Emory Farley, Public Defender, Erwin W. Lewis, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Mark F. Armstrong, Asst. Atty. Gen., Frankfort, for appellee.
   JONES, Justice.

On January 3, 1977, Ralph Rankin Williams, a/k/a Jimmy Henry Windham, Jimmy Wayne Windham and Keith Bishop, was indicted by the grand jury of Jessamine Circuit Court. The indictment charged him with “murder by striking Sammy Guy with a club or wooden board.” KRS 507.020. Williams was found guilty and the jury fixed his punishment at life in the penitentiary. Subsequently, he moved for judgment notwithstanding the verdict and for a new trial. Both motions were overruled. Final judgment was entered on February 4, 1977. It is from that judgment that Williams prosecutes this appeal.

The facts leading to the arrest and conviction of Williams are summarized as follows:

On October 11, 1976, Sammy Guy’s partially decomposed body was found near Wil-more, Kentucky by Guy’s sister, Freda Mar-low. The evidence reveals that Guy was probably killed by a blow to the head by a broad, flat object. Other possible causes could not be ruled out because of the decomposition of the upper half of Guy’s body. At the scene, the officers found a freshly broken 2" by 2" board on which bloodstains were found. They also recovered a broken-bladed knife, later identified as belonging to Williams. Other items found near the scene of the crime were: an installment contract in Guy’s name, a sleeping bag and tent loaned to Williams, and a pair of his jeans with blood on them.

In the latter part of April 1976, Virginia Philpot, a 17-year-old resident of Wilmore, Kentucky, went to Omaha, Nebraska to visit her sister. While in Omaha, Virginia worked at the headquarters of the Salvation Army. There she fell madly in love with Jimmy Windham. While in Omaha, they dated and on one occasion at a hotel Jimmy choked her. The ties of love were so strong, however, that they made a tryst that Virginia would return to Kentucky and that Jimmy would follow. However, Jimmy arrived first. Virginia arrived on September 6, 1976. Jimmy called her from Cincinnati. She picked Windham up in Lexington, Kentucky. He visited Virginia’s home the week of September 10, while her father was away. On that visit Jimmy used the name of Keith Bishop. “He told me he was going to (use the name Bishop) because he didn’t want my parents to know what his real name was. Because he had beat me up in Omaha and he thought my sister would tell.” On Sunday, September 12, 1976, Virginia’s mother “found out that wasn’t his real name and she asked him to leave.” Again on the weekend of September 24th, Jimmy visited the home of her parents. After that, Jimmy started “staying by the railroad tracks in a tent furnished by Virginia’s friend, Joyce Woods, also 17 years of age. Virginia furnished Jimmy with food, water, a sleeping bag, and sometimes a little money. She saw him practically every day. Jimmy told Virginia how much he loved her. They planned to leave together and get married.

Virginia’s father was not impressed with her lover. He testified that Jimmy “began telling me the things he had been doing over the years and I put two and two together and I recognized that he had her snowed.” Virginia’s father told Windham not to call or see Virginia any more.

On Friday, October 1, 1976, Virginia’s father permitted her to leave, presumably to go to Lexington. However, she went from her father’s home to see Jimmy. As she was driving up the road, she saw Jimmy walking down the old railroad tracks toward her car. Jimmy was limping. Virginia testified that Jimmy got in her automobile on the passenger side and said, “ ‘Let’s go back out of here’ and I told him no and asked him why he was limping. He had scratches on his face . . . and he said that he had gotten into a fight and I asked him who with and he said Samuel Guy and that he had killed him.” Virginia testified that she had seen Guy the night before down the road with some other persons. On another occasion when she was visiting Jimmy, Sammy was asleep on an old couch by the side of the road.

Virginia testified that Jimmy said, “If I ever told anybody he wouldn’t hurt me but he would my parents or one of my sisters or my niece. He said that he would kill them if I ever told.”

Virginia’s father testified that Virginia left their home on October 1, 1976, at 6:30 P.M. and “She come back in about 11:30 or something like that . . . she come in and woke me up and told me that she wanted to talk and we went in and sat down on the couch and talked. She told me then that Jimmy was still there and she had seen him and he had been in a fight with somebody. That was on Friday, October 1.” (The Jimmy Windham referred to in the evidence was in fact Ralph Rankin Williams).

Frank Sims testified that he met Jimmy (Williams) in July or August 1976. He also testified, “He wanted to know where he could find a motorcycle or steal one so he could get out of town . . . and he asked me where he could possibly rob somebody for $400.00 or $500.00.” Sims further testified that he (Williams) had been in a dispute with Guy. That discussion was either the same day or the day after Sims learned of the murder of Sammy Guy.

Dr. McClellan, a pathologist, testified that Guy’s body was partially skeletonized and the head was deteriorated and had a 12 cm. fracture in the right side above the eye socket. The bones were lying inside the head, and no brains remained. The upper half of Guy’s body was a complete skeleton. There were no organs in the rib cage. The pathologist was of the opinion that the instrument that caused the fracture was fairly heavy and broad and compatible with the pieces of board which were found at the scene of the crime.

Johnny Hogee and his son saw Guy and talked with him on a Friday night near where his body was found. Hogee and his small son had their dog with them. He testified that, “We sat and talked . a long time and this car come back through there . . . and I said, Sam, who is that . . . . He told me it was Virginia Philpot’s car and she was bringing this boy back there. We wasn’t back there maybe for five or ten minutes and she come back out by herself.” Subsequently, Virginia Philpot corroborated Hogee’s testimony. She testified that on the night of September 30, 1976, she drove her car down the railroad right-of-way and saw Sammy Guy and his van. Jimmy was with her and she saw “another guy and a dog and a little boy down there,” and, “I just took Jimmy down the road and I turned around and came home.”

A laboratory technician for the Kentucky State Police testified that he found blood on Williams’ blue jeans in at least 15 different locations. He testified, “On the inside in a pocket here you can still see that blood and there is another bloodstain up in here. Further on down there is some blood . a fairly large concentration right on the knee . . . and then there was a little bit of blood . . . below the knee . near the cuff. On the other leg, the blood started about . . . this area of the thigh . . . and again on the knee there is a large amount of blood. On the back of the blue jeans in this pocket there is a streak running here and a large concentration on the back.” The technician also testified that he found human blood on some sections of the board and also on the tennis shoe.

After Virginia Philpot had notified the authorities, a warrant was issued for Wind-ham a/k/a Williams on October 11, 1976. On October 12, State Detective Jerry Lovett arrested Williams in Lexington, Ky. After Williams’ arrest the detective explained his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The Commonwealth’s Attorney asked Detective Lovett the following questions to which he responded:

“Q 34 Did you make any investigation as to the, who in fact is the Henry Early Windham was?
A Yes sir, I did.
Q 35 Where did he reside?
A There was such a person who resided in Watchulla, Florida prior to being murdered this year, this last year.
MR JACKSON: Object.
COURT: Sustained, you won’t consider that, ladies and gentlemen. Dismiss that from your mind.
Q 36 The social security card had the name of Henry Early Windham?
A Yes sir, it did.
Q 37 Where was this found?
A This was in the wallet of the defendant, Williams.
Q 38 And the driver’s license had what name on it?
A Jimmy H. Windham.”

Williams contends that the evidence of the murder of Henry Early Windham was inadmissible against him. He argues that the above-quoted testimony was adduced by the Commonwealth’s Attorney so as to get before the jury the inference that Williams was the murderer of Henry Windham.

Throughout the trial the witnesses identified Williams as “Jimmy Windham.” These witnesses included the sheriff, Frank Sims, Johnny Hogee, Detective Lovett, Virginia Philpot, her - father Daniel Philpot, and Joyce Woods. The sheriff originally issued an all-points bulletin for Jimmy Windham and the arrest warrant was issued for Jimmy Windham.

The Omaha driver’s license was issued in the name of Jimmy H. Windham. The social security card was in the name of Henry Early Windham. Whether “Jimmy was a nickname of Henry Windham needed to be established. It was necessary to establish whether Ralph Williams was Jimmy Windham or Henry Windham.” In that posture, this court is of the opinion that the testimony was admissible, because it was evidence of a collateral fact by which Williams’ identity was established. See LeGrande v. Commonwealth, Ky., 494 S.W.2d 726 (1973).

Williams complains that a verbal statement he made to Detective Lovett was not admissible because it was hearsay and contained evidence of other crimes. The evidence clearly shows that the oral statement about which Williams complains was made after his Miranda warnings were read to him. The statement about which Williams complains was in response to a question by the Commonwealth’s Attorney to Detective Lovett, who had reduced the statement to writing. The statement is obscene, profane, and was made by Williams in an effort to place the blame for Guy’s murder on Virginia Philpot and Joyce Woods. The statement is as follows:

“A Do you want to know what the f__k happened? I will tell you g__ d__n it. the g__ d._n Virginia Philpot and Joyce Woods are a couple of g__ d__n whores. They came down there to f__k Sammy Guy. They thought that he had a $1,000. He was broke and couldn’t f _ -k and they beat the s__t out of him. They killed him. Jennie came back to me after they killed him and asked me to go up the road and bury him. Jennie wiped blood all over my shirt and pants and I will take you and show you where they are. I shoved them into a briar patch beside my campsite. I was hot and had to get the hell out of there. I might as well tell you that my real name is Ralph Williams and I am an escapee from the prison in Alabama.” (Emphasis added).

This court is of the opinion that the statement is admissible. It established Williams’ true identity and his motive for using an alias. The statement by Williams is an effort on his part to place the blame on Virginia Philpot and Joyce Woods. This in effect was an attempt on the part of Williams to conceal the facts, which is admissible as showing ¾ guilty conscience. Also, the statement shows that Williams professed to know what happened. The statement is not hearsay evidence; it is not admitted for the purpose of proving the truth of what was said, but for describing the relative details of what Williams said took place.

Williams did not testify in his behalf. Therefore, it is uncontroverted that the statement was made voluntarily after Williams was given his Miranda warnings. This court has held that a confession made voluntarily after a defendant has been advised of his rights under Miranda, supra, is admissible. Dolan v. Commonwealth, Ky., 468 S.W.2d 277 (1971).

Williams’ contention that the photographs were inadmissible is without merit. This court’s opinion in Brown v. Commonwealth, Ky., 558 S.W.2d 599 (decided on this date) is dispositive of the issue.

Finally Williams argues that the closing argument of the Commonwealth’s Attorney was replete with improper references to matters outside the record. He also insists that the prosecutor attacked his character. This court has read the closing argument, and is of the opinion that Williams’ assertions are refuted by the record. Furthermore, counsel for Williams made no objection to any part of the argument and raises the issue for the first time here. Hence, there was no error. The trial court had no opportunity to make a ruling.

Despite Williams’ contention that his conviction was procured during a trial that could not possibly be deemed tolerably fair, this court is not so persuaded.

Accordingly, the judgment is affirmed.

All concur.


author: PER CURIAM.

text:
    KENTUCKY BAR ASSOCIATION, Complainant, v. Gary L. LITTLETON, Respondent.
    Supreme Court of Kentucky.
    Nov. 18, 1977.
    Rehearing Denied Jan. 31, 1978.
   PER CURIAM.

On July 11, 1977 the Kentucky Bar Association charged Littleton with the following unprofessional and unethical conduct:

“On or about August 20, 1974, John Willie Bays, whose last known address is 808 Webster Avenue, Grayson, Kentucky, was injured while performing work for his employer. In or about December, 1975, Mr. Bays employed Respondent to file a claim before the Workman’s Compensation Board. An agreement as to fees was made and Mr. Bays signed medical release forms. Thereafter, Respondent neglected the case entrusted to him and no claim was ever filed. No communication was made to Mr. Bays by Respondent despite numerous attempts by Mr. Bays to contact him.”

Littleton filed no answer to the charge. Consequently the matter was referred to the Board of Governors for disposition, pursuant to RAP 3.210. The board found Lit-tleton guilty of the charge and recommended to this court that he be publicly reprimanded and required to pay the costs of this action. Littleton has made no response to the recommendation of the Board.

We have independently reviewed the record in this case and are convinced as was the Board that Littleton is guilty as charged. However, we are of the opinion that the punishment recommended by the Board is utterly inadequate in the light of our decisions in Kentucky Bar Association v. Martin, Ky., 558 S.W.2d 173 (1977); Kentucky Bar Association v. Clem, Ky., 554 S.W.2d 360 (1977); Kentucky Bar Association v. Dillman, Ky., 554 S.W.2d 362 (1977); Kentucky Bar Association v. Murphy, Ky., 459 S.W.2d 295 (1976); Kentucky Bar Association v. Dillman, Ky., 539 S.W.2d 294 (1976); Kentucky Bar Association v. Vincent, Ky., 538 S.W.2d 39 (1976). Littleton should be suspended from the practice of law for a period of two years and directed to pay the costs of these proceedings.

It is so ordered.

All concur except STEPHENSON, J., who did not sit.


author: STEPHENSON, Justice.

text:
    AMERICAN AUTOMOBILE INSURANCE COMPANY, Appellant, v. Jerry BARTLETT, Administrator of the Estate of Mary C. Bartlett, Appellee.
    Supreme Court of Kentucky.
    Nov. 18, 1977.
    Rehearing Denied Jan. 31, 1978.
    Robert C. Hobson, John P. Sandidge, Woodward, Hobson & Fulton, Louisville, for appellant.
    Carl J. Bensinger, Louisville, for appellee.
   Reversing

STEPHENSON, Justice.

American Automobile Insurance Company appeals from a judgment in the sum of $9,000.29 on the uninsured motorist provision of a policy issued by American to Bartlett. We reverse.

Mary 'C. Bartlett, a passenger in an automobile driven by Mary Thacker, suffered injuries resulting in her death when an unknown vehicle, coming into contact with the Thacker automobile, caused Mary Thacker to lose control of her automobile and strike a utility pole.

The Thacker automobile was covered by a policy of liability insurance issued by Aetna Casualty & Surety Company with a single person liability maximum of $25,000 and in addition uninsured motorist coverage of $10,000 for each person.

Mary Bartlett was covered by an insurance policy issued by American in favor of her and her husband, Jerry Bartlett, which provided for medical payments and uninsured motorist coverage of $10,000 for each person in addition to other coverage not relevant here.

Jerry Bartlett, as administrator of the estate of Mary Bartlett, settled with Aetna for the sum of $25,000. The settlement transaction took a curious turn. Aetna sent Bartlett a “Release in Full,” the terms being for the consideration of $25,000.00, released Mary Thacker and Henry Thacker from all claims, damages, etc., “from an accident to the estate of Mary C. Bartlett,” together with a check for $25,000. Instead of signing the release as presented, Bartlett inserted into the release, “It is specifically agreed and understood that this does not release any claim of Jerry Bartlett and the estate of Mary C. Bartlett for any uninsured motorist claim nor any subrogation rights that may inure to the insured motorist carrier.” This amended release was signed October 25, 1974.

We can imagine the reaction when Aetna received this version of the release. According to the insertion, Aetna did not have a release at all. The settlement figure amounted to policy limits on a single person, but Aetna still remained exposed on the $10,000 uninsured motorist coverage. The situation was further complicated by the fact that Bartlett’s lawyer cashed the $25,000 settlement check before returning the release form with the insertion to Aet-na. We are advised of this by Bartlett’s lawyer.

Aetna demanded that the release be executed as forwarded to Bartlett or return the $25,000. According to the Aetna representative, he and Bartlett’s lawyer then agreed upon the following:

"INDEMNIFICATION AGREEMENT
"Comes Jerry Bartlett, Administrator of the Estate of Mary C. Bartlett, Deceased, and Carl J. Bensinger, his attorney, and hereby agrees to indemnify Aetna Life and Casualty Company for all sums in excess of the $25,000.00 payment made on October 23, 1974, Aetna Life and Casualty Company incurs as a result of defending pending and/or future litigation arising out of the automobile accident of October 29, 1973, wherein, Mary C. Bartlett sustained fatal injuries. We hereby agree to indemnify Aetna Life and Casualty Company for all payments and legal defense costs in excess of the $25,000.00 payment incurred as a result of defending pending and/or future litigation brought by the Estate of Mary C. Bartlett against any alleged uninsured motorist and/or against Aetna Life and Casualty Company as uninsured motorist carrier for Henry Lewis Thacker and Mary Thacker.
"IN WITNESS WHEREOF, we have hereunto set out hands this 15 day of Feb_, 1975.
IN THE PRESENCE OF
Signed by
Raymond R. Roeland_
Signed by
Jerry W. Bartlett_
ADMINISTRATOR OF THE ESTATE OF MARY C. BARTLETT, DECEASED
Signed by
¡Carl J. Bensinger
CARL J. BENSINGER."

The existence of this document came to light during a deposition for discovery given by Jerry Bartlett on May 29, 1975. The reluctance of Bartlett’s lawyer to give a copy of this document to American was overcome when on the day of trial, June 19, 1975, the trial court ordered it done.

After the amended release was executed by Bartlett on October 25, 1974, Bartlett filed suit against American November 30, 1974, on the uninsured motorist provision of American’s policy on Mary Bartlett. One month prior to trial, American tendered an amended answer and a third party complaint against Aetna alleging that according to the “Other Insurance” clause of the policy, Aetna’s coverage was primary and American’s was secondary; that is, American’s liability applied only to any amounts recovered in excess of Aetna’s coverage.

The clause referred to is as follows: “Other Insurance. With respect to bodily injury to an insured while occupying an automobile not owned by the named insured, the insurance under Part IV shall apply only as excess insurance over any other similar insurance available to such insured and applicable to such automobile as primary insurance, and this insurance shall then apply only in the amount by which the limit of liability for this Coverage exceeds the applicable limit of liability of such other insurance.”

The trial court declined to permit the filing of the amended answer and the third party complaint for the reason that it was too late. After the indemnification agreement was produced, American again moved that the pleading be filed, but this motion was overruled by the trial court.

It is apparent that determination of the primary coverage and secondary coverage was considered to be a question of law. We gather this from a conference between the trial court and the lawyers prior to trial:

“Mr. Bensinger: Yes, Sir. Let me explain to you what this is. It really has nothing to do with the case and let me see if I can explain my understanding of the law and I have tried to explain this to Mr. Hobson. Aetna gave me $25,000.00 under their liability policy. Now both Aetna and the American Automobile have this uninsured primary secondary question of $10,000.00. There is a question who comes first and who comes second of the $10,000.00. Now I have discussed that with Mr. Hobson, and that’s a legitimate question we may or may not get into depending on the size of the jury verdict. If the jury verdict is $45,000.00 then there is no argument. We’re all just wasting our time because there is no doubt about it Mr. Hobson’s $10,000.00 policy comes into play and that’s it. They pay their $10,000.00 and the case is over. Now if the jury verdict is under $25,000.00 they walk away from the case because I’ve already got $25,-000.00 I told Mr. Hobson this, from the Aetna. No question about it. I have received twenty-five. Now if it’s in the area above $25,000.00 then I would imagine Your Honor would want us to do some law work as to the primary and secondary of that $10,000.00. Now I’m only going to get it, if I get it, from American. I don’t have to. I’m not going to get it from Aetna. And I tried to explain that to Mr. Hobson. Aetna’s out of it. I have gotten twenty-five. They’re not in this case. I’m not going to get any more and I want to—
“The Court: Do you have the agreement?
“Mr. Bensinger: —and I will gladly I have an indemnification agreement that I gave Aetna just on this basis—
“The Court: Is that what you want to see?
“Mr. Bensinger: —but I don’t — it doesn’t belong in this case. I don’t want to get this case mixed up with Aetna— and they — the Aetna man asked me not to produce this, because Mr. Hobson has asked them for it, and I just want to make sure that—
“The Court: (interrupting) Tell them the Court did.
“Mr. Bensinger: —that the Court is asking.
“Mr. Hobson: Well, I’d like for it to be made a part of the record, please, Miss Mary, the indemnification agreement, and, Mr. Bensinger, what you said I completely concur with with the one reservation that it strikes me clear that our coverage is primary and if you have agreed that, and you have agreed as indicated by that indemnifying agreement, that if a verdict is returned of $35,000.00 or less we owe nothing unless you can show the Court that our coverage is primary, as we understand the concept of primary and secondary coverage. If it’s in excess of $35,000.00 we owe up to $45,000.00.
“Mr. Bensinger: Well, that’s the real question. I think we’re going to see whether we’ll get into that or not, whether your $10,000.00 comes in after twenty-five or after thirty-five which may be a moot question after this case.
“Mr. Hobson: It could very easily be. Alright [sic.] Then we understand each other.”

The case was submitted to the jury upon an interrogatory that if the jury believed there was contact between the Thacker car and the unidentified motor vehicle, the law was for Bartlett. The jury, in its verdict answered “Yes” and assessed damages in the sum of $34,000.29. The trial court then subtracted $25,000, the amount of the settlement, and entered judgment against American for $9,000.29. Orr v. Coleman, Ky., 455 S.W.2d 59 (1970).

American again raised the issue of primary and secondary coverage on a motion for judgment n.o.v., which was overruled by the trial court.

We are of the opinion there was an abuse of discretion on the part of the trial court in declining to permit the filing of the amended answer and the third party complaint against Aetna. We regard the issue of primary and secondary coverage as dis-positive of this appeal in view of the amount of the jury verdict. The amended answer presented a question of law as to primary coverage and the third party complaint against Aetna asked for a declaration of rights as to primary coverage. Neither would have required a continuance of the case, and it was error not to permit the filing.

The “Other Insurance” clause in American’s policy, set out above, clearly' applies here. Aetna’s coverage was not exhausted by the amount of the settlement or exceeded by the jury verdict. We are of the opinion that the Thacker automobile, covered by Aetna’s policy, had the primary coverage for this accident and that American’s liability on its policy with Bartlett would be effective only to the extent that a jury verdict was in excess of $35,000. Cf. State Farm Mut. Auto Ins. Co. v. Hall, 292 Ky. 22, 165 S.W.2d 838 (1942), where, in a similar factual situation, the insurance policy on the automobile was considered to be primary in conformity with the terms of the policy.

Bartlett’s argument that no other insurance was available, based on the indemnification agreement and release, attempts to escape the “Other Insurance” clause and is answered by the express terms of the reservation inserted by Bartlett in the release. By the terms of the release, Bartlett could have proceeded against both Aetna and American on the uninsured motorist coverage, exhausting Aetna’s policy as the primary coverage, then American’s policy as secondary coverage. To the extent the indemnification agreement would operate to prevent Bartlett from retaining any proceeds collected on the uninsured motorist provision, we can only say that Bartlett alone created this situation.

We do not deem it necessary to discuss other issues argued by American.

The judgment is reversed with directions to dismiss the complaint.

All concur.