author: O’QUINN, Justice.

text:
    MERCHANTS FAST MOTOR LINES, INC., Appellant, v. Bob BULLOCK, Comptroller of Public Accounts of the State of Texas, et al., Appellees.
    No. 12490.
    Court of Civil Appeals of Texas, Austin.
    March 9, 1977.
    Rehearing Denied March 30, 1977.

      Frederick M. Schattman, Clark, Thomas, Winters & Shapiro, Austin, for appellant.
    John L. Hill, Atty. Gen., Michael E. Stork, Asst. Atty. Gen., Austin, for appel-lees.
   O’QUINN, Justice.

Merchants Fast Motor Lines, Inc., a common carrier, brought this lawsuit to recover taxes paid under protest, in the amount of $20,681.56, after the Comptroller of Public Accounts assessed the taxes on cigarettes not delivered on portions of shipments transported by the carrier.

The taxes were levied upon cigarettes lost by, or stolen from, Merchants Fast Motor during transportation of the products from one point to another within the state. It is undisputed that Merchants did not own the products lost and was liable to the shipper of the products for reimbursement to the full value of the products lost.

The Comptroller contends that the carrier is liable for the taxes because loss of the cigarettes in transit constituted a “first sale” under terms of Article 7.01(8), as amended in 1969 to add provisions relating to loss. (Art. 7.01 (8), Title 122A, Taxation-General; Acts 1969, 61st Leg., 2nd C.S., p. 61, ch. 1, art. 2, secs. 2, 3).

That section provides in full:

“(8) ‘First Sale’ shall mean and include the first sale or distribution of cigarettes in intrastate commerce, or the first use or consumption of cigarettes within this State, or the loss of cigarettes in this State whether by negligence, theft, or any other unaccountable loss.”

Trial was before the court without a jury, after which the court entered judgment that Merchants take nothing by its suit. The carrier appeals and brings the single point that the court erred in holding that appellant was a party against whom the Comptroller could assess and collect cigarette taxes for cigarettes lost by, or stolen from, appellant in transit, pursuant to Article 7.01(8).

We will sustain appellant carrier’s point of error, reverse judgment of the trial court, and render judgment allowing recovery of taxes paid under protest.

The Comptroller contends that Merchants, a common carrier authorized to transport general commodities intrastate in Texas including commodities moving in interstate commerce, is a “distributor” of cigarettes as that term is defined by the Cigarette Tax Law in Article 7.01(13), although Merchants is not licensed as a distributor as required by Article 7.09(1)(2), a prerequisite to making legal commercial sales of cigarettes. Merchants argues that it is a bailee for hire and is not in the business of selling or distributing cigarettes, but only in the business of transporting cigarettes and other general commodities for hire. Not being licensed as a distributor, Merchants does not make and deliver to the Comptroller monthly reports showing cigarettes received and on hand, the number of stamped and unstamped cigarettes purchased and received, and other vital information as required of licensed distributors under Article 7.17.

The Cigarette Tax Law does require by Article 7.28 all “common and contract carriers” who transport cigarettes in this State to “ . . . keep a complete record . of all cigarettes so transported or handled which record shall show separately for each transaction the name of the consignor and consignee, the date of delivery, and the number or quantity of cigarettes transported or handled.” The statute further requires that this record “ . . . together with all other books or records . in the custody of said carriers showing the shipment of cigarettes shall be open to the inspection at all times of the Comptroller, Attorney General, and their authorized representatives . . . ” (Emphasis added).

It was from such records and books, maintained by Merchants in compliance with Article 7.28, that the Comptroller made the assessment of taxes contested in this lawsuit, and particularly from Merchants’ record of claims made by consignors and consignees because of losses while the cigarettes were in transit. The record does not disclose that in any instance of these losses the Comptroller levied the tax against a consignor or an assignee licensed and operating in the chain of distribution of cigarettes in Texas.

The Comptroller argues that Merchants is a distributor within the meaning of Article 7.01(13) because as a carrier of the cigarettes Merchants had custody and control of the cigarettes “ . . . which would seem to indicate that it [Merchants] had acquired or possessed enough rights over the cigarettes to bring it under the definition of 'distributor,’ and make it liable for the tax.”

Article 7.10 exempts a carrier from the statutory requirement there imposed that “Every person, other than a common carrier, shall before receiving or accepting delivery of any cigarettes without stamps affixed to evidence the payment of the tax, obtain from the Treasurer . ” the stamps necessary to place on the cigarettes, and possession of the unstamped cigarettes is made prima facie evidence,,that the cigarettes “ . . . are possessed for the purpose of making a ‘first sale’ . . . ” (Emphasis added).

The statute, as amended in 1971, further requires “Every distributor . . [to] cause all cigarettes received by him to have the requisite denominations and amount of stamps affixed . . . within ninety-six (96) hours, excluding Saturdays, Sundays, and legal holidays, after receiving delivery of them.” (Emphasis added).

The Comptroller’s insistence that Merchants is a distributor of cigarettes under the Cigarette Tax Law is an assertion directly in conflict with provisions of Article 7.10. For Merchants, as a carrier, expressly exempt from the burden of possession “for purpose of making a ‘first sale’ ” in event of delivery to Merchants of unstamped cigarettes, may not be required as an alleged “distributor” to affix stamps on unstamped cigarettes within 96 hours “after receiving delivery of them.” It seems clear from this statute, as well as from the whole structure of the Cigarette Tax Law, that carriers are not required to double in brass and play distributor as well as carrier.

The State takes the position that “even though Appellant is a ‘distributor’ within the terms of the statute this issue is not determinative of the case.” In support of this contention the Comptroller advances the argument that Article 7.27, which gives the Comptroller authority, in determining “the tax liability of, a distributor, wholesale dealer, retail dealer, distributing agent or any other person dealing in cigarettes," to make certain inspections of premises and records, expresses a.legislative intent to tax Merchants as an entity “dealing in cigarettes.”

To say that a person is dealing in a commodity, such as cigarettes, implies that in so doing the person is a dealer. Merchants is not licensed as a dealer within any licensing term of the Cigarette Tax Law. To be lawfully dealing in cigarettes, Merchants necessarily would hold a license as Distributor, Wholesale Dealer, Retail Dealer, or Distributing Agent, as defined by Article 7.01(13)(14)(15)(16). It is undisputed that Merchants holds no license under the Cigarette Tax Law, but is licensed only as a carrier of commodities under authority of the Railroad Commission.

It appears settled that in commerce dealing in a commodity means to negotiate, or make bargains, in respect to that commodity, and to traffic in the goods as buyer or seller. Dealing has as a purpose accomplishment of change, from one person to another, of an interest in or title to the commodity. The general understanding is that dealing in goods or commodities means buying and selling for purpose of gain. See 17 C.J. Dealer p. 1154 et seq.; 25A C.J.S. Deal pp. 530 et seq. (1966). In hauling cigarettes, Merchants was without contractual authority to buy or sell the cigarettes, and had no statutory authority with respect to cigarettes, except to transport the cigarettes from shipper to consignee. Merchants was not “dealing in cigarettes” as that term is used in Article 7.27.

The Comptroller seeks to place Merchants in this case in the same position as a distributing agent, held for taxes on shortage of cigarettes in the agent’s possession, in a case decided by the Supreme Court in 1973. Calvert v. Zanes-Ewalt Warehouse, Inc., 502 S.W.2d 689 (Tex.Sup.1973).

In that case the Supreme Court stated: “Under review here are these provisions of the Cigarette Tax Law to which Zanes-Ewalt became subject as a licensed distributing agent . . . ” (Emphasis added). The Court, later in its opinion, pointed out: “Zanes-Ewalt had notice of, and became subject to, the statutory requirements when it annually applied for and was granted State license to engage in the statutorily defined business of a distributing agent . This was a hazard of doing business as a distributing agent known to Zanes-Ewalt.” (Emphasis added).

The Supreme Court in effect held that since Zanes-Ewalt was acting in a licensed capacity under the Cigarette Tax Law, in the chain of distribution provided by statute to move cigarettes “between the tobacco companies and their distributors who affix the stamp,” the company as a licensed distributing agent was liable for the tax on cigarettes lost or otherwise unaccounted for.

Merchants occupies no licensed place in the chain of distribution established by the Cigarette Tax Law so as to make it subject to the law in like manner with the licensed persons “dealing in cigarettes.” It seems clear, under the facts as stated in Zanes-Ewalt, that the distributing agent there was “dealing in cigarettes” within the meaning of Article 7.27. As heretofore stated, we are unable to find any function performed by Merchants as a carrier which would constitute “dealing in cigarettes” under the Cigarette Tax Law. The Legislative purpose, with respect to imposing the tax at the “first sale,” is expressed in Article 7.06:

“The tax shall be paid only once by the person making the ‘first sale’ and shall become due and payable as soon as such cigarettes are subject to a ‘first sale’ in Texas, it being intended to impose the tax as soon as such cigarettes are received by any person in Texas for the purpose of making a ‘first sale’ of same.” (Emphasis added).

It cannot be said that Merchants as a carrier received the cigarettes “for the purpose of making a ‘first sale’ of same.” The Cigarette Tax Law does not make the carrier an agent or representative of the State to collect cigarette taxes for the State, such collectors being only those licensed under Chapter 7. See Daywood v. Calvert, 478 S.W.2d 152 (Tex.Civ.App. Austin 1972, writ ref’d n. r. e.).

Review of the entire Cigarette Tax Law fails to reveal a clear intent of the Legislature to include carriers as persons or entities subject to the tax. It is an established rule that in construing a tax statute, where the question is whether the person or entity sought to be held for the tax comes within the provisions imposing the tax, “ . . . the statute must be construed strictly against the taxing authority and liberally in favor of the person [or entity] sought to be held.” Texas Unemployment Compensation Commission v. Bass, 137 Tex. 1, 151 S.W.2d 567, 570 (1941); State v. Kenyon, 153 S.W.2d 195, 199 (Tex.Civ.App. Austin 1941, writ ref’d).

Viewing the Cigarette Tax Law broadly, it appears that the Legislature intended to make tax collectors of the licensed persons and entities named in the law and to hold them responsible for payment of the tax, but was silent about making tax collectors of the carriers or holding them for payment of the tax. In construing the statutory reach of the tax, we follow the rule that the tax law will be construed with strictness against the taxing authority. Wilson Communications, Inc. v. Calvert, 450 S.W.2d 842, 844 (Tex.Sup.1970).

We hold that Merchants, as a carrier and not licensed for any purpose under the Cigarette Tax Law, was not subject to the taxes assessed by the Comptroller and is entitled to refund of such taxes paid under protest.

Judgment of the trial court is reversed. Judgment is rendered that appellant recover the taxes paid under protest.

Reversed and Rendered.

      . Suit was filed under provisions of Article 1.05, Title 122A, Taxation-General, and Article 7057b, Title 122, Taxation, against statutory defendants, the Comptroller of Public Accounts, the Attorney General, and the State Treasurer, who in this opinion will be designated generally as the Comptroller.

      . Other tax statutes of the State also require carriers to keep records of taxable commodities received and transported, together with names of shippers and consignees, dates of transporting, and other data useful to the Comptroller in following taxable goods and collecting the taxes: Article 4.04(7), Occupation Tax on Oil; Article 8.19, Cigars and Tobacco Products Tax; Article 9.11, Motor Fuel Tax; all under Title 122A, Taxation-General.


source: Caselaw Access Project

license: Public Domain

text:
    Nancy Bess Wilson DAVIS et vir., Appellants, v. Duke Glover WILSON, Appellee.
    No. 12495.
    Court of Civil Appeals of Texas, Austin.
    March 9, 1977.
    James A. Carter, Smith, Davis, Rose, Finley & Hofmann, San Angelo, for appellants.
    W. Hampton Beesley, III, Craig Porter, Upton, Shannon, Porter & Johnson, San Angelo, for appellee.
   O’QUINN, Justice.

Decision in this case turns on construction of a will, with particular focus upon one of forty-four paragraphs comprising the will.

Mary Dan Sandlin, the testatrix, made and executed her will in August of 1972, and died more than four years later, on November 15, 1974.

Duke Glover Wilson, the appellee, a contingent beneficiary under paragraph 7.01 of the will, brought this suit in December of 1975, seeking by declaratory judgment to obtain construction of paragraph 7.01. Named defendants were Nancy Bess Wilson Davis, a principal beneficiary under the will and independent executrix, and her husband, Richard W. Davis. Under paragraph 7.01, Mrs. Davis, a niece of the testatrix, was accorded an election by which she might own Mrs. Sandlin’s home if she conveyed the Davis home to Wilson, the appel-lee.

Mrs. Davis accepted the election in November of 1975, and afterwards tendered to Wilson a deed to her home which if accepted by Wilson would require that he receive the property subject to a lien debt amounting to more than $12,000. Wilson contends by his suit that under the will he was entitled to take the Davis home free of debt.

Both parties moved for summary judgment. The trial court denied the Davis motion, and granted the Wilson motion, entering judgment for Wilson against the Da-vises in the amount of $12,400.46 plus interest. Mrs. Davis and husband have appealed and bring four points of error. We will affirm judgment of the trial court.

The paragraph of Mrs. Sandlin’s will which the parties ask to have construed by the Court is set out in full, together with the companion paragraph providing for lapse of the first in event Mrs. Davis preceded Mrs. Sandlin in death.

“7.01 If my niece, NANCY BESS WILSON DAVIS would like to own my house in San Angelo, Texas and the real estate in connection therewith, then I give and devise such property to her in fee (exclusive of the household furnishings and effects) upon the condition that she convey to DUKE GLOVER WILSON in fee the dwelling house and real estate in connection therewith owned by her and upon which she resides. If she does not elect to take my house upon the above terms and conditions, then and in that event I give and devise such house and real estate in connection therewith (exclusive of the household furnishings and effects therein) to my nephew DUKE GLOVER WILSON in fee.
“7.02 In the event my niece, NANCY BESS WILSON DAVIS shall predecease me, the bequest set forth in Section 7.01 above shall lapse.”

Under paragraph 7.01, it is obvious that Mrs. Sandlin was giving Mrs. Davis first choice to own the Sandlin home, and to provide that if she elected not to take the Sandlin home “upon the terms and conditions” there stated, the Sandlin home would go to Wilson, who was Mrs. Sandlin’s nephew. In event Mrs. Davis died before Mrs. Sandlin, the bequest was to lapse under paragraph 7.02.

The problem arose when Mrs. Davis sought to exercise her election to take the Sandlin home, but offered the nephew her home encumbered by a debt in excess of $12,000, although Mrs. Davis took the Sand-lin home free of debt.

The parties join issue on the language of paragraph 7.01, with appellants contending that Mrs. Sandlin “ . . . did not include as a condition that Appellant satisfy all encumbrances that may exist against her house, especially an encumbrance which had not been assumed, as part of the transfer and conveyance to Appellee.” Appellants insist that “ . . . construction of Article Seven to require Appellant to transfer and convey her house to Appellee free of encumbrances would be unreasonable construction creating a condition Mary Dan Sandlin herself did not create.”

Appellee relies on the language of paragraph 7.01 of the will and argues that by use of the words “fee” and “convey” the testatrix demonstrated her intention that in each instance the devise to Mrs. Davis and the conveyance by Mrs. Davis to Wilson would transfer unencumbered real property-

In this contention appellee points to the provisions of Articles 1291 and 1297, V.A. C.S. Article 1291 provides that if an estate in lands “be granted, conveyed or devised,” even without words theretofore necessary at common law, “shall be deemed a fee simple, if a less estate be not limited by express words or do not appear to have been granted, conveyed or devised by construction or operation of law.” (Originally enacted by Congress, Republic of Texas, 4th Session, 1840, p. 153; carried forward in R.S.1879, Art. 551; R.S.1895, Art. 627; R.S. 1911, Art. 1106).

Article 1297, which originated in R.S.1879 and was carried forward through the revisions of 1895, 1911, and 1925, provides that unless the instrument of conveyance shows a contrary intent, use of the word “grant” or the word “convey” will imply a covenant that the grantor had not already conveyed any interest in the property, and “That such estate is at the time of the execution of such conveyance free from incumbrances.” (See Fritz: The Texas Law of Conveyancing, Sec. 17, Commentary, Vernon’s Anno. Civ.Sts., Vol. 3, p. 19).

In her will Mrs. Sandlin stated that if her niece, Mrs. Davis, would like to own the Sandlin house, Mrs. Sandlin devised the real estate to her niece “in fee” but “upon the condition that she convey” the Davis home “in fee” to the nephew, Appellee Wilson. If Mrs. Davis did not elect to take the Sandlin house “upon the above terms and conditions,” Mrs. Sandlin devised the “house and real estate” to her nephew “in fee.” It is noted that with each devise mentioned by Mrs. Sandlin she used the words “in fee,” and in specifying that Mrs. Davis, in event of election to take the Sandlin home, transfer her home to appellee, the testatrix plainly required that Mrs. Davis “convey to Duke Glover Wilson in fee” the Davis “dwelling house and real estate.” (With emphasis added).

The statutory covenant against encumbrances provided by Article 1297 is implied from use of the word convey in a conveyance by which an estate of inheritance or fee simple is transferred, unless restrained by express terms. The covenant is to protect the grantee against rights or interests in third persons, which, although consistent with the fee being in grantor, will diminish the value of the estate conveyed. City of Beaumont v. Moore, 146 Tex. 46, 202 S.W.2d 448, 453 (1947).

A statute in the nature of Article 1297 is not without precedent. As early as the year 1276, the statute de bigamis (4 Edw. I. c. 6) was declaratory of the effect attached by common law to use of the word of feoffment dedi, by which warranty in law was implied without use of the word warrantizo. The grantor was bound by warranty, to protect against interests of third persons, if the deed contained the phrase dedi et con-cessi (I have given and granted). See Rawle: Law of Covenants for Title, 3rd ed. (1887), ch. I, secs. 3, 4, 5; Reeves: History of the English Law (Finalson, ed.), Vol. II, pp. 429 — 131 (1880). Both Rawle and Reeves made clear that the statute actually was “only a confirmation of the common law.”

The judgment of the trial court contains recitations that each of the opposing parties at trial held the position that the will of Mrs. Sandlin is not ambiguous, and the court found that the will of decedent is not ambiguous. The trial court therefore properly made findings and entered judgment based upon “a determination of the intention of the Testatrix with respect to the language in question.”

It is settled that in arriving at the intention of the testatrix the true purpose of the inquiry is to ascertain what the words used express and not to discover what she meant to express apart from the language used in the will. Huffman v. Huffman, 161 Tex. 267, 339 S.W.2d 885, 888 (1960).

The language employed by Mrs. Sandlin in paragraph 7.01 must be viewed as a consistent intent on her part that the niece and the nephew, Mrs. Davis and Wilson, take the home properties in fee, which would mean free from encumbrances, and cannot be read to say that the niece would take her devise in fee and convey to the nephew property diminished in value by an encumbrance represented by interests held by third parties.

We find no room for doubt as to the intention of the testatrix as expressed in her will. When the language of the will is plain and unambiguous, the court cannot give it meaning which is different from that warranted by its words merely for the purpose of carrying into effect a conjecture or hypothesis as to the intention of the testatrix by changing such language. Price v. Austin National Bank, 522 S.W.2d 725 (Tex.Civ.App. Austin 1975, writ ref’d n. r. e.).

The parties in this cause stipulated that if the trial court should find for plaintiff below, appellee here, the judgment should award appellee money judgment against appellants in the sum of $12,400.46, plus interest at the legal rate from November 26,1975. Based on the court’s findings and stipulation of the parties, the trial court entered judgment for appellee against appellants.

We affirm the judgment of the trial court.

Affirmed.

      . When Appellants Nancy W. Davis and her husband, Richard W. Davis, acquired the “Davis home” in September of 1963, they did not personally assume payment of an existing indebtedness secured by deed of trust lien, but the conveyance to them was “made subject to all accrued interest and present unpaid balance of $17,337.73 of that certain indebtedness in the original principal sum of $18,200.00” more fully described in a recorded deed of trust dated February 16, 1960.


author: SHANNON, Justice.

text:
    PUROLATOR COURIER CORPORATION, Appellant, v. RAILROAD COMMISSION OF TEXAS et al., Appellees.
    No. 12505.
    Court of Civil Appeals of Texas, Austin.
    March 9, 1977.
    Rehearing Denied March 30, 1977.

      William T. Hall, Stayton, Maloney, Hearne & Babb, Austin, for appellant.
    John L. Hill, Atty. Gen., Marvin F. Sen-tell, Asst. Atty. Gen., Austin, for Railroad Commission.
    James M. Doherty, Doherty, Robertson & Maxwell, Austin, for Executive Courier Service of Texas, Inc.
   SHANNON, Justice.

Over protest of appellant, Purolator Courier Corp., the Railroad Commission granted a limited common carrier certificate to appellee, Executive Courier Service, Inc. of Texas, to transport by courier certain materials on stated routes within the State. Appellant filed suit in the district court of Travis County appealing from the order entered by the Commission. Upon trial the court entered judgment that appellant take nothing.

In its order granting the certificate, the Commission found in part as follows:

“That the Commission in accordance with the Laws of the State of Texas has duly considered the issue of public convenience and necessity and has particularly considered the transportation services now available to and which have been rendered for the public within the involved territory, the service capable of being rendered by available transportation services and the demand for, or need of additional service, and has further particularly considered the territorial scope of the application as to the construction and state of repair of the highways of the State and whether the same would permit the use sought to be made by the applicant without unreasonable interference with the use of such highways by the general public for highway purposes, and has further given due regard to the probable permanence and quality of the service offered by the applicant, the financial ability and responsibility of the applicant, its organization and personnel, the character of the vehicles and the character and locations of terminals proposed to be used, and the experience of applicant in the transportation of the commodities involved in the application and the character of the bond or insurance which will be given to ensure the protection of the public;
“The Commission finds after considering all of the above in connection with the instant application, that the services and facilities of the existing carriers serving the territory or any part thereof are inadequate, that there exists a public necessity for the proposed service, and that the public convenience will be promoted by granting said application as set out below and permitting the operation of motor vehicles on the highways of this State as a motor common carrier for hire; and “The Commission further finds that applicant is fit, willing and able, financially and otherwise, to institute and maintain the operation authorized herein and here-Jjy. # # # tt

Although appellant’s principal point of error is that the district court erred in concluding that there was substantial evidence to support the Commission’s order granting common carrier authority to ap-pellee, there are other points claiming error in the admission of evidence.

In an effort to demonstrate support for the Commission’s finding that appellee was financially able to institute and maintain the authorized operation, appellee tendered exhibits purportedly showing its financial condition and the financial condition of its parent corporation. Appellant objected to the admission of those exhibits on grounds of hearsay and that the exhibits were not qualified under Tex.Rev.Civ.Stat.Ann. art. 3737e (1969). The exhibits tendered consisted primarily of balance sheets and income statements of the parent corporation.

Davis Morrison, president of appellee and the parent corporation, testified as to the identity and mode of the preparation of the financial statements. As president, he was familiar with the financial conditions of the companies. He testified that the financial statements were prepared by the corporations’ certified public accountant from regularly compiled and maintained books and records of the corporations.

Appellee called Sherman Cole the certified public accountant who prepared the financial statements for appellee and the parent corporation from the internal business records of the two corporations. Cole testified that the financial statements correctly reflected the financial conditions for the dates and periods stated. Cole produced in court the general ledger sheets of the corporations from which the financial statements were prepared.

The financial statements were prepared from the records of the company which were kept by company personnel. Morrison testified that Merlene Hubbard, the bookkeeper and an officer of the company, had recorded the underlying facts from which the statements were prepared. Morrison further stated that Hubbard had been an employee for over five years and that such books and records kept by her were maintained in the ordinary course of business and are relied upon by the officers and directors of the company to reflect the correct financial posture of the company.

A summary of a business record is admissible and not subject to objection on the grounds of hearsay if the “underlying” records are admissible business records under Tex.Rev.Civ.Stat.Ann. art. 3737e. Black Lake Pipe Line Co. v. Union Construction Co., 538 S.W.2d 80, 92 (Tex.1976), Cooper Petroleum v. La Gloria Oil & Gas Co., 436 S.W.2d 889 (Tex.1969).

For the “underlying” records to be admissible, those records must be made in the regular course of business, at or near the time of the event, and “some employee or representative who either made or transmitted the information to another to record must have had personal knowledge of the act, event or condition.” Skillern & Sons, Inc. v. Rosen, 359 S.W.2d 298 (Tex.1962).

Under the record, some of which we have set out, the district court could have reasonably concluded that the “underlying” records met the requirements of Tex.Rev. Civ.Stat.Ann. art. 3737e. As a result, the financial statements prepared from those records were properly admitted into evidence.

Appellant also complains of the admission into evidence of the personal financial statements of the president and vice-president of the parent corporation. These officers personally prepared their respective financial statements and each appeared and testified in the trial. Each officer testified that the respective financial statement correctly reflected his financial condition and net worth as of the date of the statements.

Appellant urges that the financial statements were inadmissible as hearsay. In that connection appellant points out that certain valuations appearing in the financial statements were based on sources not within the personal knowledge of the witnesses.

Testimony concerning entries on personal financial statements is by nature opinion testimony. In general, it is well established that the owner of property is permitted to give his opinion as to the value of the property. Barstow v. Jackson, 429 S.W.2d 536 (Tex.Civ.App.1968, no writ). The qualification of a witness to testify on the question of value is primarily to be determined by the trial court, and its ruling will not be disturbed unless it is so clearly wrong so as to show an abuse of discretion. Foley Bros. Dry Goods Co. v. Settegast, 133 S.W.2d 228 (Tex.Civ.App.1939, writ ref’d). The fact that a witness’s knowledge of values is derived from information furnished by others does not deprive the testimony of probative value. Webb v. Mitchell, 371 S.W.2d 754 (Tex.Civ.App.1963, no writ). The court properly admitted the financial statements into evidence.

Appellant’s major argument is that the Commission’s order granting the common carrier authority was not supported by substantial evidence. The case was tried without specific reference to the Administrative Procedure and Texas Register Act, Tex.Rev.Civ.Stat.Ann. art. 6252-13a (1975). No point of error is directed to the manner in which the case was tried, and, as a result, that matter is not before this Court, and is not considered.

An appeal from an order of the Railroad Commission is governed by the substantial evidence rule. Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424 (1946). As the Commission’s order is presumed to be supported by substantial evidence, it was appellant’s burden to overcome that presumption. City of San Antonio v. Texas Water Commission, 407 S.W.2d 752 (Tex.1966). To set aside the order, it was appellant’s burden to demonstrate that the evidence, as a whole, was such that reasonable minds could not have concluded to grant the certificate to appellee. Trapp v. Shell Oil Co., supra. Substantial evidence need not be much evidence, and though “substantial” means more than a mere scintilla, or some evidence, it is less than is required to sustain a verdict being attacked as against the great weight and preponderance of the evidence. Reavley, “Substantial Evidence and Insubstantial Review in Texas,” 23 Sw. L.J. 239, 241 (1969), State Banking Board v. Proposed Central Park Bank of Dallas, 522 S.W.2d 717 (Tex.Civ.App.1975, writ ref’d n. r. e.).

Before the judgment of the district court may be reversed, we must hold that the order of the Commission is not supported by substantial evidence and that the evidence so conclusively required a negative finding with respect to the application for the certificate that the Commission’s refusal to make it was arbitrary or capricious. Gerst v. Cain, 388 S.W.2d 168 (Tex.1965). To the contrary, we are of the opinion that there existed substantial evidence at the time of entry of the Commission’s order which would have supported the granting of appellee’s application. The posture of the record being such, it follows that the order of the Commission granting the application should be given effect and that the judgment of the district court should be affirmed.

Appellant claims that, contrary to the Commission’s finding, appellee lacks the financial ability to implement its proposal. Appellant stresses that appellee has never experienced a profit and that the liabilities of the company exceed its assets. Appellant claims in this regard, “Without more, this evidence conclusively shows that Appel-lee is utterly incapable of implementing its massive proposal.”

Appellee is a subsidiary of Executive Courier Service, Inc., an Oklahoma corporation. The parent corporation has performed regulated courier transportation service in Oklahoma since 1970. Since 1973, appellee has operated an unregulated courier transportation service in the Dallas-Fort Worth area.

The history of the parent corporation shows an operating loss in the beginning of its operations, but a profit within four years. Since its inception the parent corporation has increased the number of vehicles, employees, and its operating revenues. The corporation is now operating profitably.

The parent corporation and appellee share common officers. In keeping with managements’ projections, appellee has experienced operating losses since the start of its unregulated service in 1973. Nevertheless, appellee’s management anticipates that its operation, similar to that of the parent corporation, will show a profit after a four-year period.

The evidence was that appellee will lease locations for and establish a number of office facilities over the State. Appellee’s proposed service will begin with seventy-four passenger-type automobiles. Appellee will acquire a number of vehicles in addition to those which it already possesses by equipment-financing contracts. This manner of financing has been used successfully for the acquisition of vehicles currently operated by appellee and the parent corporation. The testimony was that the parent corporation would borrow the working capital necessary for appellee’s operation. The members of the boards of directors of ap-pellee and the parent corporation committed themselves to make personal guarantees necessary to secure the funds. Appellee placed into evidence letters of intent from two banks in Oklahoma to make the necessary financing available to appellee.

Texas Rev.Civ.Stat.Ann. art. 911b, § 9 (1964) does not set out with particularity the financing required of the applicant. Appellee placed before the Commission some evidence of the financial experience of its parent corporation and evidence of the financial aspects of its projected operations which were patterned upon the experience of the parent corporation. The decision as to the financial ability and responsibility must be made by the Railroad Commission. The courts may interfere with that decision only if there is no reasonable support for it in the record. Texas Aeronautics Commission v. Braniff Airway, Inc., 454 S.W.2d 199 (Tex.1970). The evidence reasonably supports the Commission’s order.

Appellant also claims that there was no substantial evidence to support the further conclusion that appellee will consistently provide the proposed service. Appellant says further that appellee’s proposed schedules are impractical and in some instances would result in operations over the speed limit laws.

We agree with appellee’s response to appellant’s contentions that operational details of proposed new transportation service, absent the benefit of operational experience, cannot be stated with precision. All that is required of an applicant for new operating authority is that evidence be offered in sufficient detail to enable the Commission to determine the reasonable bounds of the proposed service and that such service will be instituted if authority is granted.

Although the record shows a difference in opinion between appellant’s witnesses and appellee’s witnesses as to what speed the courier fleet would have to travel under the proposed schedules, that difference is not ground for reversal of the judgment. This is particularly true in light of appel-lee’s proposal to make necessary revisions in the schedules, consistent with customer requirements, where operating experience establishes that errors in time or mileage calculations occurred in the formulation of the schedules.

Appellant also claims that it maintained adequate service in Texas. In connection with this argument appellant claims that much of appellee’s shipper and receiver testimony concerning appellant’s inadequacy was hearsay, and hence not probative. Disregarding hearsay testimony, there is substantial evidence remaining showing appellant’s inadequate service in late pickups, missed deliveries, late deliveries, inadequate schedules, and no scheduled services.

Finally, appellant contends that ap-pellee’s operation of a second courier company would have a substantial and adverse economic effect on appellant. Appellant’s operating reports show appellant’s economic position to be healthy and its growth in operations to be significant. Surely appel-lee’s operation of a second courier service will result in some loss of business for appellant. There will probably be, at the same time, a corresponding reduction in appellant’s operating expenses. Appellee points out, as well, that there is increasing growth in the volume of courier traffic. There was a reasonable basis for the Commission’s finding that the approval of appel-lee’s application would not have any material adverse effect upon appellant.

The judgment is affirmed.

Affirmed.


author: PHILLIPS, Chief Justice.

text:
    Mildred Disch WILLIAMS, Appellant, v. ESTATE of William Wesley WILLIAMS, Sr., et al., Appellees.
    No. 12511.
    Court of Civil Appeals of Texas, Austin.
    March 9, 1977.
    Rehearing Denied March 30, 1977.
    Charles G. Trenckmann, Austin, for appellant.
    Malcolm Robinson, Karl H. Moeller, Hooper, Robinson & Moeller, Austin, William Wesley Ogden, Jr., Law Student, for appellees.
   PHILLIPS, Chief Justice.

The question before this Court is whether a party can, by premarital contract, relinquish her right, as surviving spouse, to occupy the homestead, use its furnishings and use the family car.

The trial court held such a contract valid and binding on the appellant. We reverse this judgment and hold the contract to have no force and effect on appellant’s constitutional and statutory rights in the properties.

The facts necessary to the disposition of this case are as follows. Appellant and William Wesley Williams executed a premarital agreement among the provisions of which appellant promised to relinquish her homestead right in the above-mentioned properties. The parties were married and Mr. Williams died four months later.

Appellant then decided to exercise her homestead rights in her deceased husband’s home and also her statutory rights with respect to the furniture and the family car.

This suit was brought by the deceased’s grown children, beneficiaries under his will, to evict appellant from the homestead and to gain possession of the furniture and car.

Vernon’s Ann.Tex.Const. art. 16, § 52 (1955) restricts the partitioning of the homestead among the heirs of the deceased during the lifetime of the surviving husband or wife, for so long as the survivor may elect to use or occupy the same as a homestead.

It is undisputed that the automobile and household furnishings here in controversy are exempt property within the meaning of Tex.Rev.Civ.Stat.Ann. art. 3836 (1966) and constitute homestead property.

There are no cases in Texas involving the validity of premarital contracts waiving the surviving spouse’s right to the homestead. This question has been decided in other states, although there is a division of authority thereon.

The courts of Kansas prohibit such agreements on the basis that the surviving spouse’s homestead rights were superior to any right granted or denied in premarital contracts. Boulls v. Boulls, 137 Kan. 880, 22 P.2d 465 (1933); Hoard v. Jones, 119 Kan. 138, 237 P. 888 (1925); Watson v. Watson, 106 Kan. 693, 189 P. 949 (1920); In re Neis’ Estate, 170 Kan. 254, 225 P.2d 110 (1950). The courts of North Dakota and Vermont hold that the homestead right cannot be waived, even by antenuptial agreement pri- or to the appropriate time for claiming it. See Swingle v. Swingle, 36 N.D. 611, 162 N.W. 912 (1917), and Mann v. Mann's Estate, 53 Vt. 48 (1880). North Dakota also holds that antenuptial agreements waiving or relinquishing homestead rights are void as against public policy. For states that allow the surviving spouse to waive homestead rights under the facts of this case, see In re Moore’s Estate, 210 Or. 23, 307 P.2d 483, mandate recalled 210 Or. 23, 308 P.2d 180 (1957); In re Appleby’s Estate, 100 Minn. 408, 111 N.W. 305 (1907); In re Devoe's Estate, 113 Iowa 4, 84 N.W. 923 (1901); In re Howe’s Estate, 81 Cal.App.2d 95, 183 P.2d 329 (1947); and Colbert v. Rings, 231 Ill. 404, 83 N.E. 274 (1907).

Texas, by law, permits certain premarital agreements. In addition, the doctrine of waiver is generally applicable to all rights or privileges to which a person is legally entitled whether secured by contract, conferred by statute or guaranteed by the Constitution. However, in Texas, in order to waive a right, such right or privilege must be in existence at the time of the waiver. See Payne v. Beaumont, 245 S.W. 94 (Tex.Civ.App.1922, writ ref.); Aetna Life Insurance Co. v. Eilers, 367 S.W.2d 732 (Tex.Civ.App.1963, writ ref.); and Pennzoil v. Socony Mobil Oil Co., 421 S.W.2d 416 (Tex.Civ.App.1967, no writ). A person cannot waive a right before being in a position to assert it. King v. Lacy, 17 S.W. 143 (Tex.Civ.App.1891); Staples v. Railroad Commission, 358 S.W.2d 706 (Tex.Civ.App. 1962, writ ref. n. r. e.).

The homestead right in a survivor does not exist until the death of one of the spouses. Vernon’s Ann.Tex.Const. art. 16, § 52 (1955). Consequently, the premarital contract here allegedly waiving appellant’s homestead rights is unenforceable because it purports to waive a right not then in existence.

The judgment of the trial court is reversed and judgment here rendered that appellees take nothing by their suit and that appellant has homestead and statutory rights in the residence, its furnishings and the car.

      . Tex.Family Code Ann. § 5.41 (1975).

      . Zurich General Accident & Liability Insurance Co. v. Fort Worth Laundry Co., 63 S.W.2d 236 (Tex.Civ.App.1933, no writ).


text:
    A. LEANDER McALISTER TRUCKING COMPANY, Appellant, v. STATE BOARD OF INSURANCE et al., Appellees.
    No. 12516.
    Court of Civil Appeals of Texas, Austin.
    March 9, 1977.
    Rehearing Denied March 30, 1977.

      Paul D. Connor, Austin, for appellant.
    John L. Hill, Atty. Gen., Patrick P. Rogers, Asst. Atty. Gen., Austin, for appellee, State Board of Ins.
    Barry Bishop, Clark, Thomas, Winters & Shapiro, Austin, for appellee, Fidelity and Cas. Co. of New York.
   O’QUINN, Justice.

By this lawsuit, an order of the State Board of Insurance affecting the premiums paid by plaintiff below for automobile insurance and workmen’s compensation insurance, is challenged pursuant to right of appeal from rulings of the Board under Article 1.04(f) of the Texas Insurance Code.

The suit in essence attacks the order and ruling of the Insurance Board as an incorrect computation of premiums paid by the plaintiff to the insurance companies. Plaintiff claims that with the death of Alton Leander McAlister in September of 1971 an ownership change of the trucking business conducted by McAlister occurred, and that thereafter it was improper to consider “incurred experience” of the entity in arriving at future ratings.

Plaintiff corporation pleaded that at the time of McAlister’s death the trucking entity had developed a “debit” on its automobile insurance and a “credit” on its workmen’s compensation insurance, which properly were being applied in determining premiums to be paid by McAlister. Plaintiff complains that because thereafter a change of ownership occurred the order of the Insurance Board was contrary to the Board’s rules in that it required the prior experience of the trucking business to be continued after the death of McAlister.

As a result, plaintiff insisted, premiums on automobile insurance were overpaid in excess of $23,700, and premiums on workmen’s compensation insurance were underpaid by nearly $2,000.

The position of the Insurance Board and other defendants was and is that the Insur-anee Board, properly and within its authority, interpreted the rules it had promulgated and reached the result challenged in this suit. Under the Board’s interpretation no change of ownership under the experience rating plan had occurred with McAlister’s death, and the accrued experience of the entity continued to be a factor in arriving at premiums to be paid.

The facts under consideration before the Board and at trial in district court are not in dispute. The trucking company was created in 1938 by Alton Leander McAlister, who operated the company as a sole proprietorship. Later, in 1941, McAlister married, and McAlister continued to operate the business until his death in September of 1971. The parties are agreed that the value accruing to the proprietorship after marriage in 1941 was community property of McAlister and his wife, who survived him in 1971.

Upon McAlister’s death, a bank in Wichita Falls qualified as executor of his will and administered the estate. Under his will McAlister left half the community property interest in trust for his descendants. On January 1,1973, the interests of Mrs. McAl-ister and the interests held for the descendants were conveyed to A. Leander McAlis-ter Trucking Company, corporation. Stock of the corporation was issued one-half to Mrs. McAlister and half to the heirs.

After hearing in district court, the trial court rendered judgment that McAlister Company take nothing by its suit. The corporation has appealed, contending in the main that the entire ownership of the original proprietorship changed after McAlis-ter’s death (1) pursuant to the laws of descent and distribution (sec. 37, Texas Probate Code) and that (2) upon qualification of the bank as executor, the bank became the new owner of the business, as provided under Rule 4, the Automobile Experience Rating Plan.

We will overrule appellant’s points of error and affirm judgment of the trial court.

Under the Automobile Liability Experience Rating Plan, in effect at the time of McAlister’s death in 1971, it was provided that upon a “change in control, management, name or operations, not accompanied by any change in ownership interest, incurred experience shall be used in future ratings.” But by exception, “incurred experience shall not be used in the future ratings of the entity undergoing change When the entire ownership interest after the change had no ownership interest before the change . . .” (Rule 4, eff. Sept. 1, 1968). (Emphasis added). The Rule further provided that “Ownership Interest” in the entity undergoing change “. . . shall be deemed to be vested in a fiduciary when a fiduciary is involved . . .’’An official note declared that “Ownership conferred on a spouse by community property law shall not be considered in the administration of this Plan.”

In a decision made by the Insurance Board in June of 1970 the Board stated its “. . . opinion that an ownership interest change has not occurred where only an executor or administrator has qualified Ownership interest as used in Rule 11 [of the Texas Experience Rating Manual] was not intended to encompass the interest of an executor or administrator in property when he was acting solely in that capacity . . . ”

This decision of the Board, reached in an appeal from the Commissioner, identified as the matter of Ray Smith Transport Company, has been made a part of this record. (Ray Smith Transport, No. 13,950, State Board of Insurance, June 29, 1970). It is attacked by appellant as not binding and contrary to Board Rules, but is relied on by appellees as a sound decision and a principle properly applied in this case.

Appellant contends that the Board failed to follow its Rules, although the record shows that the Board acted in accordance with the Rules as interpreted by the Board earlier in the Ray Smith order. When the Board, acting as an administrative commission, officially interpreted its Rules, the interpretation given the Rules in the Ray Smith matter became a part of the Rules. Texarkana and Fort Smith Ry. Co. v. Houston Gas and Fuel Co., 121 Tex. 594, 51 S.W.2d 284, 287 (1932); West Texas Compress and Warehouse Co. v. Panhandle and Santa Fe Ry. Co., 15 S.W.2d 558, 560 (Tex.Comm’n App.1929, jdgmt. adopted); Lawyers Title Insurance Corp. v. Board of Insurance Commissioners, 207 S.W.2d 972, 976 (Tex.Civ.App. Austin 1948, writ ref’d n. r. e.).

We do not understand appellant to contend that the ruling of the Board in this case is inconsistent with the prior interpretive ruling and result reached in the Ray Smith matter, but that the “past violation of its own Rules cannot be urged as a basis for continued violation” in the case on appeal.

We are firmly of the view that when the Board made the Rules, then interpreted the Rules, the courts may not set aside an order consistent with the interpretation applied, in the absence of showing that in some manner the Rule in question is viola-tive of a statute or contrary to a provision of the Constitution.

We have examined and considered appellant’s several points of error, some of which we do not reach under disposition made of the appeal, and overrule such points as were directed to the principal and controlling contentions.

The judgment of the trial court is affirmed.

Affirmed.

      . A. Leander McAlister Trucking Company, a corporation, filed suit in district court of Travis County in February of 1974, appealing from an order of the Insurance Board, and naming as defendant the State Board of Insurance and joining as defendants Fidelity and Casualty Company of New York and the Texas Employers Insurance Association, parties to the proceedings before the Board.


author: McCLOUD, Chief Justice.

text:
    Silvestre MATA, Appellant, v. Richard O. ALBERT et al., Appellees.
    No. 4953.
    Court of Civil Appeals of Texas, Eastland.
    March 10, 1977.
    Rehearing Denied March 31, 1977.

      William R. Edwards and J. Robert McKissick, Corpus Christi, for appellant.
    Ben A. Donnell, Meredith & Donnell, Corpus Christi, for appellees.
   McCLOUD, Chief Justice.

This is a medical malpractice case. Plaintiff, Silvestre Mata, sued defendant, Dr. Richard 0. Albert, a general surgeon, alleging he was injured as a result of defendant’s negligent acts in performing disc surgery and a lumbar spinal fusion on plaintiff. In answer to Special Issue 1, the jury found that defendant did not “fail to use ordinary care” in the treatment of Mata in either the “disc exploration portion of the operation” or the “fusion portion of the operation.” The jury was instructed that “ordinary care” means what a doctor of ordinary prudence from the same or similar community would have done or would not have done at the time of the occurrence in question, under the same or similar circumstances. The jury also found plaintiff had suffered no damages as a result of his treatment by defendant. Plaintiff, Silvers-tre Mata, has appealed. We affirm.

Plaintiff alleged, among other things, defendant was negligent in the following ways:

“1. Although there was no emergency requiring immediate surgery, although there were many adequate orthopedic and neurosurgeons readily available to perform the surgery in question, and although he was himself not sufficiently trained or experienced to perform either disc surgery or lumbar spine fusion, he attempted both disc surgery and fusion instead of calling in a specialist to perform such surgery.
2. He attempted to perform disc surgery when he was neither trained nor experienced enough to do disc surgery.
3. He attempted to perform a lumbar spine fusion when he was neither trained nor experienced enough to do so.”

Defendant filed special exceptions to the allegations urging that there is “no duty owed by a specialist in general surgery to seek consultation from another specialist in an area falling within both specialities.” The court granted defendant’s special exceptions. Plaintiff contends the court erred.

Although the special exceptions were granted, it is clear from reviewing the statement of facts that plaintiff was permitted to fully develop his theory that defendant was negligent in not referring plaintiff to an orthopedic or neurosurgeon. Plaintiff has failed to show reversible error. Rule 434, T.R.C.P.

Plaintiff next asserts that the court erred in refusing to submit his two requested issues inquiring whether defendant was negligent in failing to refer plaintiff to a “back specialist for the surgery,” and whether such negligence was a proximate cause of plaintiff’s damages. Plaintiff argues that sufficient evidence was presented to raise a fact issue, even though the court’s action in granting defendant’s special exceptions deprived plaintiff of the right to fully present his theory of the case.

Plaintiff relies upon the rule announced in King v. Flamm, 442 S.W.2d 679 (Tex.1969), wherein the court said:

“One who holds himself out as a specialist is generally expected to possess a higher degree of skill and learning than a general practitioner. See 41 Am.Jur. Physicians and Surgeons § 90; Annotation, 59 A.L.R. 1071. The general practitioner is not required to consult with a specialist, however, on every conceivable complication that may arise in his practice. See Manion v. Tweedy, 257 Minn. 59, 100 N.W.2d 124. If he exercises the care and skill of other physicians similarly situated, he is not responsible for an error of judgment even though a specialist would not have made the same mistake. But there is a duty to seek consultation with, or refer the patient to, a specialist when he knows, or in the exercise of reasonable care should know, that the services of a specialist are indicated. Here, as in other cases of alleged medical malpractice, the defendant is to be judged on the basis of the standards and practices of his profession. If there is expert testimony fairly supporting the conclusion that a reasonably careful and prudent general practitioner would have sought consultation under the same or similar circumstances, the trier of fact is entitled to find that the defendant was negligent in failing to do so. See Simone v. Sabo, 37 Cal.2d 253, 231 P.2d 19; Annotation, 132 A.L.R. 392.” (Emphasis added)

See also: 35 A.L.R.3d 349.

Defendant argues that the rule announced in King is restricted to “general practitioners” and should not be extended to the “speciality areas of medicine” to include “general surgeons.”

Dr. Upshaw, an orthopedic surgeon, testified that the type of surgery performed on plaintiff, laminectomy and fusion, does not ordinarily fall within the medical term “general surgery.” He stated it is usually done by a neurosurgeon or an orthopedic surgeon. He stated that a laminectomy and fusion is a highly technical procedure and back surgery is ordinarily considered to be one of the more difficult types of surgery.

Defendant testified that he, “to some extent,” held himself out as an orthopedic surgeon. He stated he did not think it was necessary for him to consult with an orthopedic or neurosurgeon before performing the surgery on plaintiff. Defendant testified disc surgery was one of the operations in his “field of ability.” Defendant was unable to remember the name of a “single person in Alice, Texas, other than” plaintiff upon whom he had performed a spinal fusion. Defendant points out that Dr. Up-shaw refused to say that a “general surgeon” should never perform back surgery. Dr. Upshaw did testify that an “unusually gifted person might well qualify himself by observation and personal study to be able” to perform such surgery.

Our Supreme Court in King cited 132 A.L.R. 392, which provides:

“It may be stated as a general rule that, as a part of the requirements which the law exacts of general practitioners of medicine and surgery, or other schools of healing, if, in the exercise of the care and skill demanded by those requirements, such a practitioner discovers, or should know or discover, that the patient’s ailment is beyond his knowledge or technical skill, or ability or capacity to treat with a likelihood of reasonable success, he is under a duty to disclose the situation to his patient, or advise him of the necessity of other or different treatment.” (Emphasis added)

The annotation includes both general practitioners and general surgeons in the rule announced.

It is not necessary, however, for us to decide if the rule announced in King applies to general surgeons, such as defendant, because if we assume, without deciding, that general surgeons are included, plaintiff has nevertheless failed to show error. Rule 279, T.R.C.P., provides:

. . Failure to submit an issue shall not be deemed a ground for reversal of the judgment, unless its submission, in substantially correct wording, has been requested in writing and tendered by the party complaining of the judgment;

The court in King states there is a “duty” to seek consultation with, or refer the patient to, a specialist when the treating physician knows or in the exercise of reasonable care should know that the services of a specialist are indicated. Plaintiff failed to request an issue inquiring if defendant knew or should have known that the services of a specialist were indicated. Plaintiff requested only two issues: (1) Was defendant negligent in not referring plaintiff to a back specialist for the surgery, and (2) was such failure a proximate cause.of any damages to plaintiff. Plaintiff failed to request an essential issue necessary for a determination of the duty owed to plaintiff. When a requested special issue is one of a series of interdependent issues all of which are essential to submit a theory of recovery, and none of such issues are already included in the charge, a request is in substantially correct form as required by Rule 279, T.R. C.P., only when it incorporates all of the required special issues. Plaintiffs requested submission of his theory of recovery was not in substantially correct form. Lee v. Howard, 483 S.W.2d 922 (Tex.Civ.App.—Eastland 1972, writ ref. n. r. e.); 3 McDonald, Texas Civil Practice § 12.33.2 (1970).

Plaintiff next contends the jury’s findings that defendant did not fail to use ordinary care in the disc exploration and fusion portions of the operation were contrary to the overwhelming weight and preponderance of the evidence. He also says the jury’s failure to find defendant’s acts were a proximate cause of plaintiff’s damages is contrary to the overwhelming weight and preponderance of the evidence. In passing upon these points we have reviewed the entire record as required by In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). We will not detail the evidence. The record contains expert medical testimony from which the jury could have reasonably concluded the defendant was negligent in both the disc exploration and fusion portions of the operation. There is also evidence from which the jury might reasonably conclude the defendant was not negligent. We cannot say, however, after reviewing the entire testimony that the jury’s findings are contrary to the overwhelming weight and preponderance of the evidence. All of plaintiff’s points urging that the jury’s answers are contrary to the overwhelming weight and preponderance of the evidence are overruled.

Plaintiff further complains that the evidence conclusively establishes that he suffered damages as a result of defendant’s treatment. Alternatively, he claims the “No” damages finding is contrary to the overwhelming weight and preponderance of the evidence.

The jury found no liability on the part of defendant. The damage issue becomes immaterial. Southern Pine Lumber Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334 (1939).

We have considered all points of error and all are overruled. The judgment is affirmed.


author: RALEIGH BROWN, Justice.

text:
    JOHNSON-WALKER MOVING & STORAGE, INC., Appellant, v. LANE CONTAINER COMPANY, Appellee.
    No. 4987.
    Court of Civil Appeals of Texas, Eastland.
    March 10, 1977.
    Rehearing Denied March 31, 1977.
    Gray B. Jolink, Lynch, Jolink, Zimmerman & Young, Austin, for appellant.
    Charles A. Girand, Herndon, Girand & Dooley, Dallas, for appellee.
   RALEIGH BROWN, Justice.

This is a suit on a sworn account. Lane Container Company sued Johnson-Walker Moving and Storage, Inc. for goods, wares and merchandise sold and delivered to defendant in the amount of $6,246.95 plus interest and attorney’s fees. Prior to trial before the court, the principal amount of the debt was tendered and accepted, judgment was then entered for the sum of $1,832 as reasonable attorney fees together with interest on $6,246.95 at the rate of 6% per annum from January 1, 1976 to March 11, 1976, together with all costs of suit, with interest at the rate of 9% per annum. Johnson-Walker appeals. We reverse and render.

At the original trial setting, appellant appeared, without counsel, and announced a cashier’s check for the principal amount sued for had been mailed to appellee. The parties agreed that the trial would be rescheduled for one week later and if appellee in the interim received the principal amount of the debt, plus appellee contends an additional sum of money in payment of attorney’s fees, interest and court costs, the case would be dismissed.

The principal amount of the debt was received by appellee but no additional amount in payment of attorney’s fees, interest and court costs. The rescheduled trial was held without appellant who, although notified, failed to appear. After the hearing, judgment was entered which recites in part:

. . the Court, having considered the pleadings, the evidence and the arguments of counsel finds that the Plaintiff has received on March 11, 1976 the sum of Six Thousand Two Hundred Forty-six Dollars and Ninety-five Cents ($6,246.95), the principal amount of the debt due it by the Defendant but that the Defendant has not paid any Court costs, attorney fees or interest, all of which the Plaintiff had sued for and by law was entitled to receive.
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED by the Court that the Plaintiff, LANE CONTAINER COMPANY, do have and recover from the Defendant, JOHNSON-WALKER MOVING & STORAGE, INC., the sum of One Thousand Eight Hundred Thirty-two Dollars ($1,832) as attorney fees, which this Court finds to be reasonable, together with interest on Six Thousand Two Hundred Forty-six Dollars and Ninety-five Cents ($6,246.95) at the rate of six percent (6%) per annum from January 1, 1976 to March 11, 1976, together with all costs of suit, with interest thereon at the rate of nine percent (9%) per annum from this date until paid, for all of which execution may issue.”

Johnson-Walker argues that because there is no judgment for any amount of the claim, there is no judgment which can support an award of attorney’s fees under Article 2226, V.A.C.S. We agree.

Article 2226 provides:

“Any person, corporation, partnership, or other legal entity having a valid claim against a person or corporation for services rendered, labor done, material furnished, overcharges on freight or express, lost or damaged freight or express, or stock killed or injured or suits founded upon a sworn account or accounts, may present the same to such persons or corporation or to any duly authorized agent thereof; and if, at the expiration of 30 days thereafter, the claim has not been paid or satisfied, and he should finally obtain judgment for any amount thereof as presented for payment to such persons or corporation, he may, if represented by an attorney, also recover, in addition to his claim and costs, a reasonable amount as attorney’s fees. The amount prescribed in the current State Bar Minimum Fee Schedule shall be prima facie evidence of reasonable attorney’s fees. The court, in non-jury cases, may take judicial knowledge of such schedule and of the contents of the case file in determining the amount of attorney’s fees without the necessity of hearing further evidence.
Amended by Acts 1971, 62nd Leg., p. 1073, ch. 225, § 1, eff. May 17, 1971.” (Emphasis ours)

The court in Van Zandt v. Fort Worth Press, 359 S.W.2d 893 (Tex.1962) said:

“Statutes authorizing a recovery of attorney fees are penal in character and are to be strictly construed. Perry v. Leuttieh, 132 Tex. 159, 121 S.W.2d 332, 333; Washington Fidelity Nat. Ins. Co. v. Williams, Tex.Com.App., 49 S.W.2d 1093, 1094 ...”

The Supreme Court also said in Huff v. Fidelity Union Life Insurance Company, 158 Tex. 433, 312 S.W.2d 493 (1958):

“. . . Article 2226 requires that a plaintiff must finally obtain judgment for any amount thereof (of the claim) as presented to the person or corporation before a reasonable attorney’s fee can be recovered. While the attorney’s fees are not part of the demand or claim, but are in the nature of a penalty, or punishment for failure to pay a just debt (Davenport v. Harry Payne Motors, Inc., Tex.Civ.App.1953, 256 S.W.2d 245, no writ history), and are not ordinarily recoverable in a tort or contract action (Cleveland State Bank v. Lilley, Tex.Civ.App.1924, 260 S.W. 324(2), no writ history), they may be recovered by compliance with the statutory provisions of Article 2226. That a suit for the statutory attorney’s fees as a separate action could not be maintained is evidence from the wording of the statute

The judgment recites that the principal amount of the debt had been paid. Unless the interest award is part of the claim, Lane Container failed to “obtain judgment for any amount thereof as presented for payment” which would entitle it to attorney’s fees.

Article 5069-1.03, V.A.C.S., states:

“When no specified rate of interest is agreed upon by the parties, interest at the rate of six percent per annum shall be allowed on all written contracts ascertaining the sum payable, from and after the time when the sum is due and payable; and on all open accounts, from the first day of January after the same are made.
Acts 1967, 60th Leg., p. 609, ch. 274, § 2, eff. Oct. 1, 1967.”

This article was formerly Article 5070. The interest provided for by the statute was not included in determining the jurisdictional amount of a claim, as the court in Oppenheim v. Hood, 33 S.W.2d 265 (Tex. Civ.App.—Dallas 1930, writ ref.) said:

“Under Article 5070, supra, interest therein provided to be allowed on an open account is not recoverable from the date an account is due as damages for nonpayment, but simply as ‘compensation allowed by law * * * for the use or forbearance or detention of money’; and therefore is legal interest, in that it is interest allowed by law where the parties to a contract had failed to agree upon any particular rate of interest. Article 5069, R.S.1925.
Interest sought and recovered as interest eo nomine, viz., interest in its own name, is interest specially provided for by statute, and, regardless, of the amount of such interest, same is not to be considered in determining whether or not the amount sued for is within the limit of the court’s jurisdiction . .

The court in determining the effect of the acceptance of the principal amount of the debt where no interest was contracted for said in United Bros. of Friendship of Texas v. Kennedy, 193 S.W. 253 (Tex.Civ.App.—Texarkana 1917, no writ):

“ ‘Where there is no express contract or obligation to pay interest as well as principal, and the interest is recoverable only as damages for nonpayment of the principal when it is due, the receipt of the principal, as such, in full, is a bar to any claim for interest, because it is considered no part of the debt, but as a mere incident of the debt; and it is immaterial whether the debt be pais due or running to maturity. It is likewise immaterial that the creditor received payment of the principal without interest under protest. This does not change the legal effect of his act.’ 1 C.J. 546; and see 1 Cyc. 325; 1 R.C.L. 189.”

We hold that interest provided by Article 5069-1.03, V.A.C.S., being interest eo no-mine and not interest as damages, is not a part of the claim that will support an award of attorney’s fees under Article 2226, supra.

This holding makes it unnecessary to consider the other points of error. The judgment is reversed and rendered that Lane Container Company take nothing.


author: WALTER, Justice.

text:
    Carol J. GRAVES et al., Appellants, v. GEORGE DULLNIG & CO. et al., Appellees.
    No. 4973.
    Court of Civil Appeals of Texas, Eastland.
    March 17, 1977.
    Rehearing Denied March 17, 1977.
    Second Motion for Rehearing Denied April 14, 1977.

      Gary A. Beahm, San Antonio, for appellants.
    G. Thomas Coghlan, Stephen E. Walra-ven, Charles R. Shaddox, San Antonio, for appellees.
   ON MOTION FOR REHEARING

WALTER, Justice.

Our opinion and judgment rendered on February 3, 1977, are set aside.

In the appellees’ motion for rehearing, they assert the deposition of Randolph Coleman has never been signed, has never been filed, was not relied on in the court below, and is not part of the record in this case.

In George Dullnig & Company and Randolph Coleman’s motion for summary judgment, they assert:

“In support of this motion, defendants rely on the pleadings on file in the Court, depositions and affidavits which shall be timely filed prior to the hearing date of the motion.”

In Rauscher, Pierce Securities Corporation’s motion for summary judgment, it asserts:

“This Motion is based upon the pleadings herein, and the depositions of Defendant Randolph Coleman and Plaintiff Carroll F. Graves, Jr., taken and filed herein, all of which show as a matter of law there is no genuine issue as to any material fact herein and that the Defendant Rauscher, Pierce Securities Corporation is entitled to summary judgment against the Plaintiffs herein.”

The order granting summary judgment recites:

“. . . the Court having considered Defendants’ Motions together with the pleadings, depositions and Affidavits on file herein as well as the argument of counsel, is of the opinion and so finds that there is no genuine issue of any material facts, and that Defendants, and each of them are entitled to judgment as a matter of law.”

The order granting summary judgment was signed and entered on January 12, 1976. Prior to that time, the appellee, Rauscher, Pierce Securities Corporation, filed a memorandum brief in support of its motion for summary judgment which appears in the transcript and appears to have been filed as of December 17, 1975 by the clerk of the district court. In this appel-lee’s memorandum brief, it refers to the deposition of Carroll F. Graves, Jr. and the u deposition of Randolph Coleman.

On March 2, 1976, the court entered the following order:

“The court being of the opinion that the following specified original exhibits admitted in evidence at the trial of the above entitled and numbered cause should be inspected by and sent to the Court of Civil Appeals for the Fourth Supreme Judicial District of Texas, at San Antonio, Texas, in lieu of copies thereof: Exhibit_Oral Deposition of Carroll F. Graves, Jr., and Exhibit _-Oral Deposition of Randolph Coleman.”

It would appear from these instruments the court considered the depositions.

The original unsigned deposition of Carroll F. Graves and a copy of the unsigned deposition of Randolph Coleman appear in this record. Neither of them bear the file mark of either the District Clerk or the Clerk of the Court of Civil Appeals. There appears a notation on each of them: “Received 1-10-77, Glenda Terrell, Deputy, 11th Dist., Court of Civil Appeals.”

The appellants in their brief refer to the deposition of Graves and Coleman. The appellees in their brief refer to the deposition of Mr. Graves.

Appellees, George Dullnig and Company and Randolph Coleman, in their brief assert:

“The only evidence offered to support the motion for summary judgment was the deposition of the plaintiff, Carroll F. Graves.”

Appellee, Rauscher, Pierce Securities Corporation, in its brief says:

“The facts relevant to this appeal are undisputed, and are established through the deposition testimony of the appellant Carroll F. Graves, Jr.”

Since the depositions were not signed and filed in the trial court, we have no summary judgment proof to support the judgment.

On the other hand, if we consider the depositions a part of the record, we find the appellees have failed to discharge their bur-1' den of showing they were entitled to a summary judgment.

Defendants’ motions for summary judgment assert they were given complete written discretion to handle the stock which was never revoked and that the Graves still own the stock and are unable to demonstrate any injury arising from defendants’ failure to sell the stock at any particular time. In support of their motions for summary judgment, defendants rely upon the record and the depositions of defendant, Randolph Coleman, and plaintiff, Carroll F. Graves, Jr.

The Graves executed the following instruments:

“U.S. Defense Liaison Group
APO San Francisco 96356
July 17, 1973
Dear Mr. Coleman,
This letter gives you the authority to fully handle our account. This is to include buying, selling, and trading of stocks.
Sincerely,
s/ Mrs. Carroll F. Graves, Jr. (Carol Graves) s/ Carroll F. Graves, Jr.”
FULL TRADING AUTHORIZATION WITH PRIVILEGE TO WITHDRAW MONEY AND/OR SECURITIES '
Gentlemen:
The undersigned hereby authorizes RANDOLPH COLEMAN (whose signature appears below) as his agent and attorney in fact to buy, sell (including short sales) and trade in stocks, bonds and any other securities and/or commodoities and/or contracts relating to the same on margin or otherwise in accordance with your terms and conditions for the undersigned’s account and risk and in the undersigned’s name, or number on your books. The undersigned hereby agrees to indemnify and hold you harmless from and to pay you promptly on demand any and all losses arising therefrom or debit balance due thereon.
You are authorized to follow the instructions of RANDOLPH COLEMAN in every respect concerning the undersigned’s account with you, and make deliveries of securities and payment of moneys to him or as he may order and direct. In all matters and things aforementioned, as well as in all other things necessary or incidental to the furtherance or conduct of the account of the undersigned, the aforesaid agent and attorney in fact is authorized to act for the undersigned and in the undersigned’s behalf in the same manner and with the same force and effect as the undersigned might or could do.
The undersigned hereby ratifies and confirms any and all transactions with you heretofore or hereafter made by the aforesaid agent or for the undersigned’s account.
This authorization and indemnity is in addition to (and in no way limits or restricts) any rights which you may have under any other agreement or agreements between the undersigned and your firm.
This authorization and indemnity is also a continuing one and shall remain in full force and effect until revoked by the undersigned by a written notice addressed to you and delivered to your office at San Antonio, Texas, but such revocation shall not affect any liability in any way resulting from transactions initiated prior to such revocation. This authorization and indemnity shall inure to the benefit of your present firm and of any successor firm or firms irrespective of any change or changes at any time in the personnel thereof for any cause whatsoever, and of the assigns of your present firm or any successor firm.
Dated, 4 Auer. 1973
Ojakarta Indonesia
(City) (State)
Very truly yours, s/ Carroll F. Graves. Jr.
SIGNATURE OF AUTHORIZED AGENT:
Carol J. Graves”

Carroll F. Graves, Jr. first got involved in the stock market in 1967 in Sacramento, California while he was in the Air Force. He was transferred to San Antonio in 1969. He called Mr. Randolph Coleman with Rauscher Pierce and asked him to handle his stock account. His stock was transferred to Rauscher Pierce in September, 1972. Graves was transferred to Ojakarta, Indonesia and departed for that country on or about July 15, 1973.

Coleman visited with Graves at their home before the Graves departed. At this meeting, Graves says he delivered to Coleman written instructions to sell CPI at 14½.

Randolph Coleman’s deposition reveals he was asked, “Did he tell you in July before the discretionary instrument was signed, ‘sell that stock at fourteen and a half?’ ” and he answered “No.”

Coleman’s letter to Graves dated October 1 informed him “CPI just traded 1000 shares @13 . . . I am watching it closely — I’m gonna get out if it fades, unless you tell me no!”

Graves replied October 8 and said: “I see that CPI got up to 15 + and agree, get out if it fades. I naturally want to get as much as possible but 15-16 would be good.”

Graves wrote to Coleman October 25 and said: “I hope that you sold the CPI when it was up to 15 as it appears to have dropped. As I mentioned previously the 15 mark would get me out of the hole very nicely— please let me know.”

Coleman replied:

CPI @ 15V2, we still have it, for two reasons: (1) I’ve felt the little sell off would be over in a day or two & that it would return to 15 or better, & (2) The stock is at the transfer agent being sent here, & cannot be delivered. It seems relatively strong; I’ll let you know when we get the stock, & too, when I sell it.”
“Carroll, just enjoy yourself as much as you can — we’ve made a good ‘comeback’ in CPI & I feel more is to come. We will do as you want though, as soon as the stock is delivered.”

Graves answered appellees’ motion for summary judgment asserted (1) his 2500 shares of CPI was in the hands of his broker “for sale” and some had been sold at $3.00 per share; (2) that Coleman was directed to sell the stock and he failed to do so; and (3) that Coleman was negligent in handling his account and this was not contemplated when the blanket trading authorization was executed on August 4, 1973.

The instruments copied above were executed by the Graves before they departed for Indonesia and soon after they arrived in Indonesia. In this summary judgment case, we must presume another written instrument, germane to the same subject matter, was written by Graves and delivered to Coleman directing him to sell CPI at 14V2. Coleman denies this written instrument was delivered to him. Graves says it was.

In Miles v. Martin, 159 Tex. 336, 321 S.W.2d 62 (Tex.1959), the court said:

“It is well settled that separate instruments executed at the same time, between the same parties, and relating to the same subject matter may be considered together and construed as one contract. Howards v. Davis, 6 Tex. 174; 26 C.J.S. Deeds § 91, p. 840; 16 Am.Jur. Deeds 537, § 175. This undoubtedly is sound in principle when the several instruments are truly parts of the same transaction and together form one entire agreement. . . . ”

After considering all the written instruments in evidence and considering the written instructions from Graves to Coleman to sell the stocks at 14½, we cannot hold as a matter of law there are no genuine issues of fact as to one or more of the essential elements of the plaintiffs’ cause of action. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970).

In a summary judgment proceeding, all conflicts in the evidence are disregarded and the evidence which tends to support the position of the party opposing the motion is accepted as true. Wilcox v. St. Mary’s University of San Antonio, 531 S.W.2d 589 (Tex.1975).

Coleman was an interested witness and his testimony does no more than raise a fact issue. This rule has some exceptions which are not applicable here.

This opinion is rendered in lieu of our opinion of February 3, 1977.

The judgment is reversed and the cause is remanded.


author: PALMORE, Justice.

text:
    Exer Wells CLINE and Roland Wells, Appellants, v. JOHNSON COUNTY BOARD OF EDUCATION, Appellee.
    Supreme Court of Kentucky.
    March 11, 1977.
    R. B. Harrington, Paintsville, for appellants.
    Michael J. Schmitt, Wells, Porter & Schmitt, Paintsville, for appellee.
   PALMORE, Justice.

The issue in this case is whether KRS 381.221(1) is constitutional. Enacted in 1960, it provided that every possibility of reverter and right of entry [upon breach of a condition subsequent] created prior to July 1, 1960, would cease to be valid or enforceable 30 years after its creation unless before July 1, 1965, a declaration of intent to preserve it were recorded. We are of the opinion that the judgment of the trial court holding it valid was correct.

There is no factual dispute, nor any necessity for summarizing the manner in which the issue was joined by the pleadings and presented for judgment.

By a deed executed in 1910 Walker Wells and others, some of whom were ancestors of the appellants, conveyed a half-acre parcel of land in Johnson County to the board of education for the sum of $45.00. The ha-bendum clause provided that the property was to be held by the grantee and its successors “so long as used for school purposes and when no longer used for school purposes to revert to parties of the first part . said parties of the first part [sic] reserve right to remove school house and furnishings from said premises when they may desire as it is understood that the land only reverts back to while the house and furnishings remain the property of the County Board of Education or school district.”

Appellants contend that although the reversionary interest retained by their ancestors was not preserved by the recording of a notice as required by KRS 381.-221(1), because the property is no longer being used for school purposes the fee reverts to them regardless of the statute. Their position is that a possibility of revert-er is a vested property right and that its abolition impairs a contract right in violation of Sec. 19 of the Kentucky Constitution. In the main, the Kentucky cases cited in support of that position hold that a possibility of reverter is an alienable interest in property. That much may be conceded, but it does not necessarily follow perforce that the statute0is invalid.

In terms of legal technicality, we recognize that a possibility of reverter is not the same thing as a mere expectancy, which might be described as a hope coupled with some degree of probability. From a practical standpoint, however, there are more similarities than differences. As suggested by its very name, the prospects of a reverter are no less fleeting and amorphous than are those of an expectancy, and no more valuable. The differences are more historic than they are real. That they may, historically, be considered as “vested” no more shields them against the police power of the state than are the vested-in-possession rights of landowners protected from devaluation by zoning laws. A regulation, for example, that eliminates the prospect of converting a piece of real estate to commercial usage is most likely to effect more loss in terms of actual value than is a law that merely requires the owner of a possibility of reverter to renew it of record within a reasonable time as a condition precedent to enforcing it in the future.

In Atkinson v. Kish, Ky., 420 S.W.2d 104, 109 (1967), footnote 5, it was said that because “a reversionary right of entry, like a possibility of reverter, amounts to no more than an expectancy” (emphasis added), it does not come within the constitutional protection of “vested rights.” Dictum though it may have been, we reach the same ultimate conclusion here.

In Biitmore Village v. Royal, Fla., 71 So.2d 727, 41 A.L.R.2d 1380 (1954), the Florida Supreme Court held invalid a statute cancelling reverter provisions in plats or deeds after 21 years unless enforced within one year from the effective date of the act. In so doing, it recognized that the one-year saving provision was of no avail to those whose rights of enforcement had not accrued. Our statute, on the contrary, provided a period of five years in which the owner of the right was not required to enforce it, but only to record notice of his intent to preserve it.

Although a possibility of reverter was not an alienable estate under Illinois law, as it is under our law, in Trustees of Schools of Township No. 1 v. Batdorf, 6 Ill.2d 486, 130 N.E.2d 111 (1955), the Supreme Court of that state held valid a statute terminating all such interests that had not fallen in within 50 years after their creation. In reaching that result it commented as follows:

“The statute reflects the General Assembly’s appraisal of the actual economic significance of these interests, weighed against the inconvenience and expense caused by their continued existence for unlimited periods of time without regard to altered circumstances . . . Our problem . . . [is] reasonableness of the method chosen by the General Assembly. We are unable to say that that method offends the constitutional provisions relied upon.”

In Board of Education of Central Sch. Dist. No. 1 v. Miles, 15 N.Y.2d 364, 259 N.Y.S.2d 129, 207 N.E.2d 181 (1965), the New York Supreme Court took the view that a statute eliminating this kind of property interest unless preserved by a recorded notice does not come within the scope of the police power. We think that it does, and, in the words of the Illinois opinion, that the General Assembly could properly determine that the economic significance of these interests is so outweighed by the inconvenience and expense cause by their continued existence for unlimited periods of time that the only constitutional problem is the reasonableness of the method chosen to deal with them. We are of the opinion that the method chosen in the form of KRS 381.-221(1), allowing five years in which to file a preservation notice, was entirely reasonable.

The judgment is affirmed.

All concur.


text:
    COMMONWEALTH of Kentucky, Appellant, v. Carlos Lee LEWIS and J. Tildon Crase, Appellees.
    Supreme Court of Kentucky.
    March 11, 1977.
    Ed W. Hancock, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, for appellant.
    Eugene Goss, Harlan, William Gary Crab-tree, London, for appellees.
   PALMORE, Justice.

In May of 1975 the Harlan County grand jury indicted Carlos Lee Lewis and J. Til-don Crase for knowingly receiving stolen property (an automobile) worth $100 or more in violation of KRS 433.290. The indictment stated that the property “had been stolen from Mildred Dishner of Duf-field, Virginia.”

KRS 433.290 provided that the offender “shall be liable to the same punishment as the person stealing it. . although the principal offender has not been convicted.” KRS 433.220, the statute covering grand larceny and automobile theft, called for a penalty of one to five years’ imprisonment.

On the day of the trial, after the jury had been empanelled and sworn, Lewis and Crase moved for dismissal of the indictment on the ground that it was not a crime in Kentucky to steal a car in Virginia, and that since there was no penalty in Kentucky for stealing in Virginia there could be no punishment under KRS 433.290 for receiving property that was not stolen in Kentucky. The motion was granted and the indictment was dismissed. The Commonwealth appeals.

To make a long story short, we are of the opinion that under KRS 433.290 the receipt in this state of property stolen in another state was punishable the same as if it had been stolen in this state. That seems to be the general rule and it makes sense. See annotation at 67 A.L.R.2d 752, 754, and Roberson’s New Kentucky Criminal Law and Procedure (2d ed.), § 95, p. 151.

Having cleverly deferred their motion, however, until the jury had been sworn, Lewis and Crase now contend that they would be put in double jeopardy by another trial. We do not think so. The attachment of jeopardy merely begins the inquiry as to whether the Double Jeopardy Clause of the Fifth Amendment proscribes a retrial. Illinois v. Somerville, 410 U.S. 458, 467, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). When a trial is aborted at the volition of the defendant himself, the considerations are different from those that prevail when the interruption is precipitated by the prosecution or by the trial court sua sponte. United States v. Dinitz, 424 U.S. 600, 608, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). Broadly speaking, if there is no bad faith and the choice has not been forced upon the defendant, he is not in a position to cry double jeopardy when the trial is relaunched. In this instance it is clear that the appellants chose to play a gambit, knowing that the sufficiency of the indictment could and should have been challenged before the trial commenced. They deliberately exposed themselves to the first jeopardy for the transparent purpose of escaping on a technicality. The Double Jeopardy Clause was not designed as a rule of gamesmanship. *

Whether KRS 21.140(3) as it existed before amendment by the 1974 General Assembly governs the Commonwealth’s right of appeal in this case is immaterial. It was held in Commonwealth v. Devine, Ky., 396 S.W.2d 60, 61 (1965) that “KRS 21.140(3) was intended to allow the Commonwealth an appeal not only for a certification of the law, but also for a reversal in any case in which a new trial would not constitute double jeopardy.”

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

All concur.

      . The crime was alleged to have taken place in January of 1974. The Kentucky Penal Code, which superseded KRS Chapter 433, became effective on January 1, 1975.

      . See KRS 21.140(4), the present statute relating to the Commonwealth’s right of appeal, and KRS 505.030, the Kentucky Penal Code section covering the effect of a former prosecution for the same offense. The point at which jeopardy now attaches is the swearing of the first witness.