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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

The STATE of Texas, Petitioner, v. Judyth S. TENNISON et vir, Respondents. No. B-4138. Supreme Court of Texas. May 1, 1974. Rehearing Denied June 5, 1974. John L. Hill, Atty. Gen., Harry C. Green, Asst. Atty. Gen., Austin, for petitioner. Byrd, Davis, Eisenberg & Clark, Jack C. Eisenberg and Terry L. Weldon, Austin, for respondents. DENTON, Justice. This is a suit for damages under the Texas Tort Claims Act. The trial was to the court without a jury and judgment was rendered for the plaintiff below. The court of civil appeals, by a majority opinion, affirmed. 496 S.W.2d 219. We reverse. The Respondent, Judyth S. Tennison, while an employee of the State, fell in an anteroom near the entrance of a State Building on the premises of Camp Mabry, Travis County, Texas, on February 16, 1970. The building is owned and maintained by the State of Texas. She did not at first realize the extent of her injuries, but in May of the same year she was admitted to a hospital for a myelogram. A laminectomy was performed shortly thereafter. During her recovery from that surgery she contracted iliofemoral thrombo-phlebitis, and was again hospitalized. As a consequence of the spinal surgery and the complications of phlebitis, Mrs. Tennison was seriously disabled and will require medical treatment indefinitely. In its findings of fact, the trial court found that the floors of the building were unreasonably and dangerously slick; that this dangerous condition was the proximate cause of the plaintiff’s fall; that the State, through its servants, knew or should have known of the condition of the floor; that Mrs. Tennison neither knew nor had reason to know of that condition; that the State failed either to correct the condition through the use of reasonable care, or to warn Mrs. Tennison of the danger. The court concluded that the State is liable to respondent under the terms and provisions of Section 3, Article 6252-19; and further concluded that under the terms and conditions of Article 6252-19, Section 18(b), the State owed to Mrs. Tennison the duty owed by a private person to a licensee on private property. The court found that duty to be as follows: “(2) A licensor is subject to liability for personal injuries to a licensee caused by a condition on the licensor’s premises if: “(A) The licensor knows or has reason to know of the condition, and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that such licensees will not discover or realize the danger, “(B) And the licensor fails to exercise reasonable care to make the condition safe or to warn the licensee of the condition of the risk involved, and “(C) The licensee does not know or have reason to know of the condition or the risk involved.” Thus the trial court concluded that the duty of a licensor is measured by a standard of ordinary care to warn the licensee of the condition or make the condition safe for the licensee. It appears the trial court adopted the standard of care that is found in the Restatement of Torts, Second, Section 342. The court of civil appeals affirmed and held the trial court correctly concluded that the duty imposed upon the State as li-censor was the duty of ordinary care based upon constructive knowledge of the licen-sor. Article 6252-19, Section 3, provides in part: “Each unit of government in the state shall be liable for money damages for personal injuries or death when proximately caused by the negligence or wrongful act or omission of any officer or employee acting within the scope of his employment or office ... or death or personal injuries so caused from some condition or some use of tangible property, real or personal, under circumstances where such unit of government, if a private person, would be liable to the claimant in accordance with the law of this state. Such liability is subject to the exceptions contained herein, and it shall not extend to punitive or exemplary damages.” Article 6252-19, Section 18(b) provides: “As to premise defects, the unit of government shall owe to any claimant only the duty owed by private persons to a licensee on private property, unless payment has been made by the claimant for the use of the premises. . . . ” The respondents take the position that the Texas Tort Claims Act creates two entirely separate grounds of liability. They argue that Article 6252-19, Section 3, creates a broad general basis of liability. The argument is that Section 3 contains no limitation of the State’s duty, such as that set out in Section 18(b). They say that Section 3 imposes the common law duty of ordinary care upon the State in cases arising out of the active use of the State’s property, real or personal. They further contend the limitation placed upon the State’s liability by Section 18(b) is not applicable in this case because of the active negligence of the State’s agent in creating the dangerous condition by the manner in which he maintained the floor. We are unable to agree with respondents’ contentions. Section 3 does impose upon units of government general liability for personal injury or death caused “from some condition or some use of tangible property, real or personal, under circumstances where such unit of government, if a private person, would be liable to the claimant in accordance with the law of this state.” However the section continues, “Such liability is subject to the exceptions contained herein.” Section 18(b) provides such an exception where the claim arises from “premise defects.” That exception imposes upon the State the same duty owed by private persons to a licensee on private property. This court has recognized that the duty owed by an occupier to a person injured on his premises, is dependent on the legal status of the injured party; that is, whether invitee or licensee. Olivier v. Snowden, 426 S.W.2d 545 (Tex.1968). However, here we are not called upon to determine the legal status of Mrs. Tennison. Section 18(b) defines the duty of a unit of government in cases involving premise defects to be “only the duty owed by private persons to a licensee on private property.” It is well settled in this State that if the person injured was on the premises as a licensee, the duty that the proprietor or licensor owed him was not to injure him by willful, wanton or gross negligence. Carlisle v. J. Weingarten, Inc., 137 Tex. 220, 152 S.W.2d 1073 (1941); Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950); McKethan v. McKethan, 477 S.W.2d 357 (Tex.Civ.App.1972, writ ref. n. r. e.); Bass v. Cummings, 415 S.W.2d 438 (Tex.Civ.App.1967, writ ref. n. r. e.); Buchholz v. Steitz, 463 S.W.2d 451 (Tex.Civ.App.1971, writ ref. n. r. e.). An exception to the general rule is that when the licensor has knowledge of a dangerous condition, and the licensee does not, a duty is owed on the part of the licensor to either warn the licensee or to make the condition reasonably safe. Gonzalez v. Broussard, 274 S.W.2d 737 (Tex.Civ.App.1954, writ ref. n. r. e.). We think that the duty imposed upon the State by the courts below is contrary to the settled law of this State. Texas has conformed to the generally recognized rule that the duty to warn licensees of dangerous conditions arises only in those instances were the licensor knows of the condition likely to cause injury. Gonzalez v. Broussard (supra). Actual knowledge rather than constructive knowledge of the dangerous condition is required. There is no evidence in this record to support the finding that the State or its agents knew of the dangerous condition of the premises or of any danger to respondent. The clear intent of the legislature was to limit the State’s immunity in tort claims arising from premise defects by imposing the same duty upon the State as that owed by private persons to a licensee on private property. That duty had been clearly established by the courts of this State. We can only conclude that such duty was not applied by the courts below. The judgments of the courts below are reversed and judgment is here rendered that respondent, Judyth S. Tennison, take nothing by this suit. Concurring opinion by REAVLEY, J., in which SAM D. JOHNSON, J., joins. REAVLEY, Justice (concurring). For a rule of liability of the possessor of land to a licensee, I prefer that of Section 342 of the Restatement of Torts. Both the trial court and the Court of Civil Appeals have applied that rule in reaching their judgments for this plaintiff. Under that rule, the possessor of land has no duty to inspect the land; but if he knows of facts which would put a reasonable person on notice of the defect and unreasonable risk of harm, he is charged with knowledge of the danger. It is an objective test of the defendant’s knowledge of the danger based upon facts within his actual knowledge. Restatement (Second) of Torts § 12(1) (1965). I am prepared to extend the duty of owner-occupiers of land in Texas accordingly. I cannot, however, vote for recovery by this plaintiff. This is a premises defect and Section 18(b) of the Texas Tort Claims Act controls, as this Court holds. The Act would not make the State liable and suable for the janitor’s misapplication of wax. Furthermore, I would not ascribe to the Legislature an intention to give to this Court the power to modify the duty owed to a licensee and expand the State’s liability unless the Texas Tort Claims Act gave some indication of that intention. SAM D. JOHNSON, J., joins in this concurring opinion. . Article 6252-19, Vernon’s Annotated Civil Statutes.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

T. D. JEFFREY, Jr., et al., Petitioners, v. Tay W. BOND, Respondent. No. B-4228. Supreme Court of Texas. May 1, 1974. Rehearing Denied June 12, 1974. Dale E. Muller, James R. Sloan, Austin, for petitioners. Gay & Latting, Joseph Latting, Austin, for respondent. REAVLEY, Justice. The contest here is over the priority or existence of liens against a tract of 5.33 acres. The lower courts have held that a cotenant, having paid the full mortgage debt and taken an assignment of the note and security interest to protect his claim for contribution from the other cotenant, lost that security by a merger of his legal and equitable interests. We disagree. The facts are set out in more detail in the opinion of the Court of Civil Appeals (498 S.W.2d 31) than need be restated here. C. T. Uselton and Albert Craus were equal cotenant owners of the fee in the 5.-33 acres. On December 19, 1969 they borrowed $20,000 from the University State Bank, and they executed a deed of trust to the 5.33 acres to secure payment of the promissory note. When the note became due the following March, Uselton paid $10,000 to the bank. Craus was unable to pay and in July of 1970 Uselton paid the other $10,000 to the University State Bank, which then assigned the note and lien to T. D. Jeffrey, Trustee. T. D. Jeffrey, Jr. as substitute trustee under the deed of trust subsequently gave notice of sale of the 5.33 acres. The purpose of the sale was to satisfy the claim of T. D. Jeffrey, Trustee for C. T. Uselton against Albert Craus. Another lien had been created against this tract by an agreement signed by Craus and Uselton on February 12, 1970. This came at the time of a $30,000 loan by the North Austin State Bank. A note in that amount was executed by Craus, Uselton, Tay W. Bond, and Harry Peterson. The four of them also agreed in writing that if Bond or Peterson were compelled to pay the $30,000, they would be secured for their reimbursement by a second lien against the 5.33 acres. This effort was made primarily for the benefit of Craus, who needed cash for purposes of another land transaction which ultimately collapsed. Uselton testified that he signed the note and agreement of February 12 at the request of Craus. The North Austin State Bank note came due in March of 1970. Peterson paid the bank, and Bond then satisfied Peterson and took the obligation against Craus and the second lien. Bond sued Craus for the $30,000 and also sued Uselton, T. D. Jeffrey, Jr., and T. D. Jeffrey, Trustee, to enjoin the trustee’s sale and establish Bond’s own lien as the prior claim against the 5.33 acres. T. D. Jeffrey, Trustee, answered with a cross action against Bond to declare Bond’s lien null and void, and the trial court was asked to order a sale of the property and foreclosure of the lien in favor of Uselton. A judgment against Craus for the $10,000 was also sought. Both Bond and Uselton obtained their personal judgments against Craus in the trial court, and Craus made no appeal. Uselton contends that he accommodated Bond to obtain the North Austin State Bank loan and that since he therefore owes no debt to Bond, there can be no security interest in the land in favor of Bond. On the other hand, Bond contends that the University State Bank lien merged into the legal title of Uselton and is no longer enforceable. We reject both contentions. The record shows that both Bond and Uselton were accommodating Craus on the North Austin State Bank loan, and it is also clear that Craus is indebted to each of them. The personal liability between Bond and Uselton is not a question in this case since neither seeks that relief. The only question is whether a debt exists to support the security interest of Bond in the 5.33 acres. The written agreement and testimony of Uselton establish a lien upon the land to secure the indebtedness of Craus to the extent of $30,000. Uselton’s agreement would have been binding upon him and the land even if Craus had not been a cotenant. In Hodges v. Roberts, 74 Tex. 517, 12 S.W. 222 (1889), Chief Justice Stayton wrote: “Any person capable of contracting may create a lien on his property to secure the debt of another without subjecting himself to any further obligation than the lien contract gives.” There is some argument made by Uselton to the effect that the trustee’s sale by Jeffrey will extinguish Bond’s second lien. It will, of course, mean the transfer of the land itself free of all liens, but Bond’s security interest will be transferred to the money paid to the trustee and his claim may be collected out of the surplus remaining after the prior claim is paid. Wynne v. State Nat. Bank of Ft. Worth, 82 Tex. 378, 17 S.W. 918 (1891); Pearson v. Teddlie, 235 S.W.2d 757 (Tex.Civ.App.1951, no writ). As for Uselton’s lien, there is no legal or equitable cause for it to be nullified by the doctrine of merger. Craus is indebted to Uselton in an amount exceeding $10,000. Uselton owns only an undivided one-half interest in the land; Craus owns the other interest. Uselton is entitled to foreclosure and sale of the land and to priority for the collection of his debt against Craus. Linz v. Bower, 86 S.W.2d 63 (Tex.Civ.App.1935, writ ref’d); Schluter v. Sell, 194 S.W.2d 125 (Tex.Civ.App.1946, no writ); 9 Thompson on Real Property 593 (1958). The judgments below are reversed. The cause is remanded to the trial court for judicial foreclosure, sale and distribution of the proceeds in the following order: (1) C. T. Uselton to receive the $10,000 and interest and other charges collectible under the terms of the note and deed of trust; (2) Tay W. Bond to receive $30,000; (3) The remainder, if any, to be divided among the cotenants or successors in interest of C. T. Uselton and Albert Craus, with any proceeds due Albert Craus to be applied upon his judgment debts as shall be proper. The costs of court, except such costs adjudged by the Court of Civil Appeals which have become final in absence of application for writ of error, shall be paid by Tay W. Bond.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Charles Ray COOPER, Appellant, v. The STATE of Texas, Appellee. No. 48134. Court of Criminal Appeals of Texas. May 29, 1974. Jack Woods, College Station, for appellant. W. T. McDonald, Jr., Dist. Atty., Bryan, and Jim D. Vollers, State’s Atty., Austin, for the State. OPINION REYNOLDS, Commissioner. Appellant’s conviction is for armed robbery. The jury fixed punishment at the minimum term of five years and declined to recommend probation. Appellant does not question the sufficiency of the evidence to support the conviction. It sufficiently describes the offense to record that two men, one with unconcealed facial features and the other wearing a ski mask and exhibiting a gun, forcibly took money from Cynthia Ella Daniel, the cashier of the Sugar and Spice No. 2 store in Bryan, in the presence of her husband, Virgil Dean Daniel. Both Mr. and Mrs. Daniel identified appellant as the robber whose facial features were not concealed. Other witnesses placed appellant near the scene of the crime. The appellant testified. He said he was in the vicinity of, and saw two men coming from, the store at the time of the robbery. He stated that he did not recognize either man, but that he later heard who they were. Appellant was not asked if he participated in the robbery. Questioned, however, in five grounds of error is the propriety of the trial court’s actions in overruling (a) appellant’s motion for continuance based on surprise, (b) his motion for mistrial founded on a claim of prejudicial testimony given during the punishment stage of the trial, and (c) his motion for new trial premised on jury misconduct. Initially, appellant claims that he was surprised, and entitled to a continuance, when Cynthia Ella Daniel identified him as one of the robbers. This was a surprise, appellant asserts, because a few days before the trial Mrs. Daniel had told his counsel that she could not identify either one of the robbers. He submits that the overruling of his motion for continuance was a denial of a fair trial, citing Shaddix v. State, 90 Tex.Cr.R. 431, 235 S.W. 602 (1921), apparently for the general statement contained therein that reversal has occurred upon refusal of a motion for continuance in the event of unforeseen testimony. Virgil Dean Daniel was the first witness called by the State. He recounted the details of the robbery and identified appellant as one of the participants in the robbery. The next witness was Cynthia Ella Daniel. She also testified to the events surrounding the robbery and positively identified appellant as the rotíber whose facial features were not concealed. On cross-examination, Mrs. Daniel denied that she had told appellant’s counsel a few days prior to trial that she could not identify either robber. After appellant had testified, his counsel became a witness to testify that Mrs. Daniel told him some ten days before trial that she could not identify either one of the robbers. A continuance after the trial has begun is authorized by Article 29.13, Vernon’s Ann.C.C.P., when by some unexpected occurrence during the trial the applicant is so taken by surprise that a fair trial cannot be had. The motion is addressed to the sound discretion of the court. Bradshaw v. State, 482 S.W.2d 233 (Tex.Cr.App.1972). Assuming the motion for continuance was timely urged, we cannot say that the trial judge clearly abused the discretion he exercised in the matter. The appellant had been unequivocally identified prior to the identification testimony of Mrs. Daniel claimed to be a surprise. Neither the motion for continuance nor any statement by appellant’s counsel found in the record indicated to the trial court how counsel could have benefitted by a continuance, or that there was any expectation that a continuance would enable appellant to present any fact or facts contrary to the identification testimony given by Mrs. Daniel. Neither are we persuaded by appellant’s claim that the denial of a continuance was the moving cause of his testifying, thereby subjecting him to the hazards of the effect of testimony concerning a polygraph examination and his prior “runins” and problems with law enforcement officers of Brazos County. The reason that appellant testified is not stated in the record; but, accepting this statement from the brief to be the reason why appellant testified, there is no error. Appellant himself volunteered the information concerning the polygraph examination, the result of which was not revealed, and he injected his prior “runins” with law enforcement officers in his direct testimony. Furthermore, Shaddix v. State, supra, is not controlling of the facts here. The holdings of that case were that the failure to move for a continuance precludes a showing of error, and that the mere introduction of witnesses whose names are unknown to appellant does not of itself constitute surprise or a ground of reversal. More authoritative is Welk v. State, 99 Tex.Cr.R. 235, 265 S.W. 914 (1924), where, under circumstances similar to but stronger than those in the instant case because there the witness admitted he had falsified his pre-trial statement given to appellant’s attorney, it was held, in upholding a conviction for which a sentence of death was imposed, that there was no error in overruling a motion for continuance. The first ground is overruled. Next considered is the fifth ground of error. It is that the court erroneously overruled the motion for mistrial made when a police officer gave untruthful testimony concerning appellant’s record at the hearing on punishment. Appellant filed a verified motion for probation, and also personally testified in support thereof, stating that he had not been previously convicted of a felony offense. During the trial it was shown that appellant had been previously arrested only once, apparently for “fighting.” The State produced no evidence, documentary or otherwise, of a prior felony conviction. The State’s witness, Lieutenant Bobby Riggs of the Bryan Police Department, testified that appellant’s general reputation for being a peaceable and law-abiding citizen was bad. In pursuing this subject on cross-examination, appellant’s counsel asked the following questions and received the responses indicated: “Q How many times have you arrested him (appellant) ? “A I have been in on one arrest of the sub j ect. “Q Was this one for fighting? “A No, sir. “Q Did this end up in a determination of ‘Guilty’ for a felony ? “A Yes, sir. “Q Is it this particular felony ? “A No, sir. “Q You are testifying, then, that to your knowledge Charles Ray Cooper has been adjudged guilty in a felony case; is that correct ? “A What I am interpreting it, it is. I could go further on what my thinking is.” Immediately thereafter, appellant’s counsel, commenting to the court that appellant had sworn to the fact that there had been no felony conviction, stated, “(T)his has to be settled.” The court responded, “He is not testifying as to prior convictions; he is testifying as to his general reputation.” A discussion, unrecorded, was held at the bench. Following the discussion, appellant’s counsel then asked the witness whether, and received the affirmative reply that, so far as the witness was concerned, among police officers appellant has a bad reputation. Without requesting any instruction be given to the jury, the motion for mistrial was then made on the assertion that the testimony was so prejudicial (not false) that it could not possibly be eliminated from the record. A general argument, without citation of authority, is presented. The thrust of the presentation is that, since defense counsel on cross-examination moves in an area where he cannot know what an adverse witness will testify to and realizes that he might well damage his client’s cause beyond repair in trying to discredit the witness’s testimony, intentional or unintentional false police testimony of a material matter denies a fair trial. The harm suggested is that, except for the officer’s testimony, the jury might well have recommended probation. We perceive no error in the denial of the motion for mistrial. On the one hand, it was counsel himself, and not the witness, who uttered the words now complained to be false in imputing a prior felony conviction to appellant. In view of the comment made by the court, there is no doubt that the court, if a request had been made, would have appropriately instructed the jury, and such instruction would have rectified the situation. On the other hand, the officer’s response, considered in context, cannot be branded categorically as a false answer. Responsive to the question propounded, the officer’s answer was tantamount to saying, “Under my interpretation, I agree with the declaration made as the basis for your inquiry, but I will explain why I think I agree if you want me to do so.” But counsel declined the invitation and abandoned any further inquiry into the matter. If Lieutenant Riggs was in error in his interpretation, the proper recourse was to expose the inaccuracy by effective cross-examination, and not the abandonment of all further interrogation and assertion of entitlement to a mistrial because the testimony was prejudicial. The very purpose of cross-examination is to discover the truth by testing the credibility of the witness and the accuracy of his testimony. See, McCormick and Ray, Texas Law of Evidence, 2d Ed. 1956, §§ 591-592. Moreover, the record does not support the suggestion of the harm that appellant proposes might have occurred. At the motion for new trial hearing, it was shown that the first jury ballot was approximately seven to five for probation; but only one juror, Selma Grady, was questioned as to the reason why she changed her original vote for probation. Her reason, and only reason, for changing her vote to confinement was that the appellant would have, in her opinion, a better chance of rehabilitation in the penitentiary. Absent sufficient cause shown to interfere with the discretion the trial court employed in overruling the motion for mistrial, the fifth ground is overruled. The remaining grounds of error relate to jury misconduct. The first relates to a statement made by juror Banks. At the hearing on the motion for new trial the appellant testified that during the selection of the jury he did not recognize prospective juror Banks, but that after the jury had been selected, but before any evidence was adduced, he realized that she was the mother-in-law of one Fred Jenkins. Once he realized her identity, that she had been selected on the jury and that she might be a prejudiced juror, appellant did not make such fact known to the trial court nor did he move to quash the panel or for a mistrial so as to expunge this objectionable juror. Cf. Lee v. State, 164 Tex.Cr.R. 532, 301 S.W.2d 114 and cases there cited. Thereafter during the deliberations it was shown that juror Banks told her fellow jurors that Fred Jenkins prior to his death had been her son-in-law and that she resented any efforts to implicate him in the commission of the offense for which the appellant was being tried and especially so because Jenkins was not here to defend himself. By stating that she resented Jenkins’ being implicated, juror Banks injected no new and harmful fact into the case. She merely stated that she resented an inference being drawn from facts that were already in evidence. Since appellant made no effort to have the objectionable juror removed, and since juror Banks injected no new and harmful fact into the case, we conclude that the trial court did not err in failing to grant the motion for new trial. The second relates to the following. The affidavit of juror Stormer recites that during their deliberations the question of parole was being discussed and juror Willie Mae Gooden stated that she had nephews who had gone to the Huntsville penitentiary and had been paroled and that the law was that a prisoner had to serve only seven months and a few days for each year he was sentenced to prison. While testifying at the hearing on the motion for new trial, juror Gooden disclaimed any knowledge of the law and said that she spoke to her fellow jurors only from the experience she had had with her nephews. The affidavit further recited that the jurors discussed the fact that the appellant would serve “only a little over one-half of the time on any sentence before he would be released . . . providing good behavior. . . ” When we consider jurors’ testimony as well as the affidavit, together with the effect of Article 42.12, Sec. 15, V.A.C.C.P. (Adult Probation and Parole Law), we conclude that the jury’s discussion was not a misstatement of the law. In Roberson v. State, 160 Tex.Cr.R. 381, 271 S.W.2d 663, we noted that where the law provided for the release of the accused in less time than that discussed by the jury, reversible error was not reflected by the jury’s discussion of the parole law. Of paramount importance in discussing a question of this nature is the fact that we find no evidence that the jury relied upon any discussion of the parole law in reaching its verdict in this case. Finding no reversible error, the judgment is affirmed. Opinion approved by the Court. . Here, the_ record does not show with specificity when appellant moved for a continuance. Neither the docket sheet nor the record of the examination of the witnesses refers to the motion. The record contains the motion for continuance, which was filed at 4:35 j). m. on the first day of the trial commencing at 9 :00 a. m. The testimony claimed to be a sunrise was adduced from the second witness testifying. A rough calculation from the time elements contained in the record reasonably sux»i)orts the inference that the motion was filed, not at the time Mrs. Daniel gave her testimony, but at the close of the defense testimony. . At the hearing on the motion for new trial, juror Beatrice Schaefer testified that after the trial a woman, who was not named and who said she used to work with Cynthia Ella Daniel, upon being told that Mrs. Daniel identified appellant, said, “When I talked to her two weeks ago she was still confused.” The unnamed party was not called as a witness at the hearing and no reason is given therefor. The testimony was hearsay as appellant’s counsel candidly concedes and, as hearsay, it had no probative value. Salas v. State, 403 S.W.2d 440 (Tex.Cr.App.1966). Moreover, had the motion for continuance been predicated on the absence of this unnamed party and the necessity for her testimony, the overruling of the motion would not have constituted an abuse of discretion since the continuance would have been sought to obtain impeachment testimony. See Keel v. State, 434 S.W.2d 687 (Tex.Cr.App.1988), and cases cited therein. . Although Jenkins’ name had been injected in the trial, appellant in his testimony did not contend that Jenkins was responsible for the instant robbery.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Donald Ray JACKSON, Appellant, v. The STATE of Texas, Appellee. No. 48386. Court of Criminal Appeals of Texas. May 22, 1974. Kerry P. Fitzgerald, Court appointed on appeal only, Dallas, for appellant. Henry Wade, Dist. Atty. & James B. Scott, Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION CHADICK, Commissioner. This is a robbery by assault case. Appellant plead not guilty to the indictment herein and in a jury trial was found guilty, and punishment of thirty-five years’ confinement in the Texas Department of Corrections was imposed. In the punishment phase of the trial, the operator of a foster home for retarded children testified that she had custody of the appellant from the time he was three years of age until he went into the army in 1967. The appellant, twenty-three years of age at the time of trial in February, 1973, completed the tenth or eleventh grade before dropping out of school. Excepting the period of military duty, the foster mother was in weekly touch with the appellant, either in person or by telephone. Touching appellant’s mental conditions, she testified: “Q (By Defense Counsel) Okay. Mrs. Daniel, when he was in high school — did Donald begin having problems when he was in high school? “A Yes, Donald Ray began to have it. Seemed like he began to worry. When I would ask him about it he would say, ‘Well, like I can’t keep up with the class’, and Donald Ray would have, I don’t know, some kind of staring spells. Then he would have terrible headaches, which I think he still have. “Q (By Prosecuting Counsel) Now, let me ask you this, Mrs. Daniel: Are you telling this lady and gentlemen of the jury, are you telling them that Donald Ray Jackson has a severe mental problem or is mentally retarded ? “A No, I’m not telling them that. “Q So, you’re not contending or saying, trying to tell the jury that he has got a mental problem ? “A Yes, he has got mental problems. If you read that you can tell where how many times that I had taken him to the hospital for brain waves and things like that. “Q (By Prosecuting Counsel) Is he retarded, do you think ? “A Yes, there’s something about his head. I don’t know what it is, but it's something that causes him to — .” Appellant filed five separate pro se motions prior to and on the day trial began. He testified in both phases of his trial and gave responsive, full, coherent answers to his interrogators. He exhibited organized thought and spoke in complete sentences when question required more than a yes or no answer. The record of his military service does not indicate the existence of mental problems and shows an honorable discharge. No request was made for a psychiatric examination or for a determination of appellant’s sanity before or during the trial. Neither appellant nor his court-appointed counsel manifested the slightest doubt as to his mental competency or ability to understand the offense charged, indictment, trial proceedings, or to cooperate and intelligently assist in the defense efforts. Fundamental error is now claimed because of the failure of the trial judge to halt the trial during the punishment phase and conduct a separate hearing on the appellant’s mental state immediately after the foster mother testified as shown above. In the ambience of all the other facts and circumstances of the complete record the conflicting, unsure, and indefinite testimony of the foster mother was not sufficient to create reasonable grounds for the trial judge to doubt the competency of the appellant to stand trial. In Boss v. State, 489 S.W.2d 580 (Tex.Cr.App.1972) it is said: “The trial judge is not required to conduct such a hearing on his own motion absent any significant facts being brought to his attention or absent circumstances and actions which should have indicated a need for a separate determination.” Here the record shows no circumstance or actions which indicated a need during the trial proceedings for a separate determination of the appellant’s competency to stand trial. And, as indicated, the groping of the foster mother for a nonculpable explanation of appellant’s alleged misconduct is not alone sufficient, under all the circumstances, to require a halt in the trial and a separate determination of the appellant’s competency. Zapata v. State, 493 S.W.2d 801 (Tex.Cr.App.1973); Perryman v. State, 494 S.W.2d 542 (Tex.Cr.App.1973); Townsend v. State, 427 S.W.2d 55 (Tex.Cr.App.1968); and see Ainsworth v. State, 493 S.W.2d 517 (Tex.Cr.App.1973). Appellant’s single ground of error has been carefully considered and reversible error is not found. The judgment of the trial court is affirmed. Opinion approved by the Court.

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John Thomas SINGLETARY, Appellant, v. The STATE of Texas, Appellee. No. 47938. Court of Criminal Appeals of Texas. May 22, 1974. Rehearing Denied June 12, 1974. Jack Hampton, Dallas, for appellant. Henry Wade, Dist. Atty., and John B. Tolle, Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION ONION, Presiding Judge. Appellant was convicted by a jury as an accomplice to the offense of murder with malice wherein the punishment was assessed at twenty-five (25) years. Appellant does not challenge the sufficiency of the evidence. The record reflects that during the early morning hours of June 19, 1972, Dallas police officers found the bullet riddled body of Bryan Stout at his residence located in Dallas. Present on the scene were two women, one of whom was Mary Stout, the deceased’s wife. Lieutenant James D. Wood of the Dallas Police Department testified that on the date of the offense he questioned the appellant, then a Dallas police officer, about the killing since it was known that the appellant and the deceased’s wife were seeing each other. During the conversation, appellant stated that he heard of the incident over the radio and told his superior that after he was off duty on the previous day, he went to a party at the residence of Helen Cundiff and that the deceased’s wife was also present. Subsequently, Lieutenant Wood reported the information disclosed during this conversation to the homicide detectives. During their investigation of the Stout murder, homicide detectives obtained appellant’s service revolver and submitted the same for a ballistics test, which produced inconclusive results. After further conversations with the appellant, the detectives learned that the appellant had turned his original service revolver over to the police quartermaster for repairing on the date of the offense and was issued another pistol. After retrieving the appellant’s original service revolver from the quartermaster, the detectives discovered, through the use of the ballistics test, the same to be the murder weapon. The accomplice witness Lester Webber testified that he was an employee of Cun-diff during June of 1972. The witness further testified that on the evening of June 18, 1972, he, upon the request of his employer, and Michael Bizor were en-route to murder the deceased when the truck he was driving broke down. After hitching a ride, the twosome were approaching the deceased’s residence when they noticed “some people standing out next to a Volkswagen bus and a squad car passed by.” Fearing instant detection in the furtherance of their mission, Webber and Bizor abandoned their scheme and separated at a nearby convenience store. The witness further related that he called Cun-diff, who, along with appellant, picked him up and returned to her home. Upon arriving at the premises, the appellant relinquished to Cundiff his service revolver and Webber drove his employer back to the deceased’s home, where she went inside and shot and killed him. Immediately thereafter, the pair returned to Cundiff’s home, where appellant retrieved his pistol and told Webber that “she should have taken something to make it look like a burglary.” The witness further testified that the appellant then ejected the spent cartridge cases from his pistol and discarded them in a field behind the Cundiff residence. The State’s witness Michael Bizor testified substantially to the same facts as stated by Webber. The witness further related that he, at Helen Cundiff’s hiring, agreed to kill Stout for which he would be paid a part of the deceased’s life insurance proceeds in addition to the benefit of free groceries at her store. For further inducement Cundiff promised the witness that the appellant would “fix” the witness’ traffic tickets. Bizor also testified that, much to his relief, the agreement was never carried out. The appellant did not testify in his own behalf. Initially, appellant contends that the trial court erred in refusing to charge the jury that Michael Bizor was an accomplice witness. An accomplice witness has been described as a person, who, either as a principal, accomplice, or accessory, was connected with the crime by unlawful act or omission on his part, transpiring either before, at the time of, or after the commission of the offense, and whether or not he was present and participated in the crime. See Article 38.14, Vernon’s Ann.C.C.P., note 2. Further, if there is a conflict in the evidence, then the court should charge the jury on the question of whether the witness was an accomplice as a matter of fact. But if there is not enough evidence to support a charge against the witness either as a principal, an accomplice, or an accessory, then he is not an accomplice witness. See 2 Branch’s Ann.P.C., 2d ed., Sec. 730, p. 33; Silba v. State, 161 Tex.Cr.R. 135, 275 S.W.2d 108 (1954). In the instant case the witness was not shown to have been in any manner connected with or to have participated in the crime here charged. Although some hours before the killing the witness may have entered into a conspiracy with Cun-diff to kill Bryan Stout, it is apparent that such conspiracy had terminated. Under such circumstances, it is not shown that the witness Bizor was criminally connected with the killing of Stout. In Washburn v. State, 167 Tex.Cr.R. 125, 318 S.W.2d 627 (1958), this court said: “If a state’s witness had no complicity in the offense for which an accused is on trial, his testimony is not that of an accomplice, whatever may have been his complicity with the accused in the commission of other offenses.” See also Matthews v. State, 471 S.W.2d 834 (Tex.Cr.App.1971). Thus, we are unable to agree that the witness Michael Bizor was an accomplice witness or that the evidence raised the fact question as to his complicity. Appellant’s first ground of error is overruled. Next, appellant complains of the charge for the court’s failure to instruct the jury on the law of accessories as an affirmative defense against the crime of murder. Appellant argues, without citation of authorities, that such charge should have been given since the State’s evidence relates primarily to his overt actions after the offense was committed. As this court stated in Gonzales v. State, 74 Tex.Cr.R. 458, 171 S.W. 1146, (1914): “To constitute one an accessory in this state his participation in the crime and acts must all have occurred subsequent to the commission of the offense. Welsh v. State, 3 Tex.App. [413], 419. And to constitute one an accomplice, his acts must have occurred prior to the commission, and he at the time doing-nothing in the furtherance of the common purpose and design.” Further, one cannot be an accessory by reason of his connection with the crime itself, but his involvement must be with only the offender. See 2 Branch’s Ann.P.C., 2d ed., Sec. 750, p. 49; 16 Tex.Jur.2d, Criminal Law, Sec. 78, p. 198; W. Morrison and G. Blackburn, The Law of Principals, Accomplices and Accessories Under the Texas Statutes, 1 Vernon’s Ann.P.C., p. XIII (1952). In the instant case the record is replete with testimony that the appellant, a police officer on the date of the offense, complied with Helen Cundiff’s request for his service revolver after learning that the prior attempt to kill the deceased had failed. Under such circumstances the evidence clearly shows that the appellant knew of Cundiff’s plan to kill the deceased and voluntarily aided her in committing the offense. It is therefore our conclusion that since the evidence failed to raise the fact issue of appellant’s complicity arising after the commission of the offense, the court did not err in refusing such a charge. Appellant’s second ground of error is overruled. In the next ground of error appellant complains of the trial court’s refusal to admit into evidence a written exculpatory statement of the appellant which was made while in custody. As noted earlier, appellant neither testified nor submitted any defense in his behalf other than offering through Detective Thomason a written statement made by the appellant subsequent to his arrest. Further, the State did not attempt to introduce such statement into evidence. However, appellant contends that the statement met every statutory requirement of Article 38.-22, Vernon’s Ann.C.C.P., and should have been admitted as an explanation of how his service revolver “came to be used to commit murder.” At the outset it should be noted that the fact that the accused had been warned pursuant to Article 38.22, Vernon’s Ann.C.C.P., would not render his self-serving statement admissible where the State had not sought to elicit such statement. See Cyrus v. State, 74 Tex.Cr.R. 437, 169 S.W. 679 (1914). It should also be noted that self-serving declarations of the accused are ordinarily inadmissible in his behalf, unless they come under some exception, such as: being part of the res gestae of the offense or arrest, or part of the statement or conversation previously proved by the State, or being necessary to explain or contradict acts or declarations first offered by the State. See generally 24 Tex.Jur.2d, Evidence, Sec. 612, p. 164; 6 Wigmore, Evidence, Sec. 1732, pp. 103-105. During the daytime hours of June 22, 1972, appellant was arrested at the Dallas Police Homicide Office and shortly after being warned pursuant to Article 38.22, supra, and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), he gave a statement to homicide detective Thomason. While the record is not clear, it appears that some time had elasped from the moment of appellant’s arrest until he decided to disclose his particular involvement in the case. In discerning whether the instant statement is part of the res gestae of the offense or the arrest, we must adhere to certain basic principles which must be regarded as established and controlling. These principles embrace such factors as time elapsed, and, more importantly, spontaneity, or whether the statement was instinctive. See Fisk v. State, 432 S.W.2d 912 (Tex.Cr.App.1968). However, the record in the instant case negates the fact that the statement was made while appellant was in the grip of stress and nervous excitement which would give rise to spontaneous utterances. The fact that the statement was made by the appellant as a result of custodial interrogation containing his narration of the occurrence disproves the controlling element of spontaneity and instinctiveness. Likewise, appellant’s statement made subsequent to his arrest when time had elapsed for him to reflect and fabricate an explanation should be excluded. Such explanation passes from the domain of res gestae and becomes obnoxious as self-serving when the opportunity for reflection arises and fabrication is manifested to suit the exigencies of his situation. See and compare Seebold v. State, 89 Tex.Cr.R. 563, 232 S.W. 328 (1921); Blackburn v. State, 78 Tex.Cr.R. 177, 180 S.W. 268 (1915); Wilson v. State, 70 Tex.Cr.R. 355, 156 S.W. 1185 (1913). Appellant’s third ground of error is overruled. Appellant next contends that the trial court erred during the punishment phase of his trial in not permittimg him to testify regarding his medals, commendations, and citations for meritorious service awarded during his ten years of service in the United States Army. Appellant had filed a motion for probation. At the hearing on the punishment phase the appellant took the stand outside the presence of the jury for the purpose of perfecting his bill of exception and showing what his military record was during his tenure in the Army. After hearing the proffered testimony, the court ruled that the appellant could testify to the fact of his service in the Army and that he received an honorable discharge, but could not offer or allude to any awards or commendations bestowed during that period. Subsequent to the court’s ruling, appellant elected not to testify before the jury, but instead offered the testimony of his wife to prove the fact of his service in and discharge from the United States Army in compliance with the trial court’s ruling. In Allaben v. State, 418 S.W.2d 517 (Tex.Cr.App.1967), this court held that evidence to be offered at the hearing on punishment pursuant to the provisions of Article 37.07, Vernon’s Ann.C.C.P., “is by no means limited to the defendant’s prior criminal record, his general reputation and his character. Evidence legally admissible to mitigate punishment or evidence that is relevant to the application for probation, if any, is also admissible.” In Allaben this court held that evidence proffered by Allaben at the penalty stage of a sodomy trial that he had visited a psychiatrist twice a week in connection with his psychological problem and he hoped to continue such treatment should have been admitted, but that error did not constitute reversible error. In Logan v. State, 455 S.W.2d 267 (Tex.Cr.App.1970), this court in citing Al-laben, supra, stated that, assuming the trial court should have admitted the testimony that Logan was a good student and caused no disciplinary problems, exclusion of such evidence did not constitute such error as to call for reversal. Thus, we cannot conclude, in light of the entire record, that the trial court’s action in excluding the proffered testimony, if error, was such error as to command reversal. See and compare Miller v. State, 442 S.W.2d 340 (Tex.Cr.App.1969); Coleman v. State, 442 S.W.2d 338 (Tex.Cr.App.1969). Appellant’s fourth ground of error is overruled. In his fifth ground of error appellant contends that since Cundiff was acquitted for the murder of Bryan Stout, the appellant cannot be convicted as an accomplice to the same offense. Article 80, Vernon’s Ann.P.C., provides that an accomplice may he tried and punished before the conviction of the principal and the acquittal of the principal will not bar prosecution against the accomplice, but on the trial of the accomplice, the evidence must be such as would have convicted the principal. Further, an accomplice is not entitled to a new trial or reversal just because a subsequently tried principal has been acquitted. See Tucker v. State, 461 S.W.2d 630 (Tex.Cr.App.1970); Ex parte Selby, 442 S.W.2d 706 (Tex.Cr.App.1969). The fact that another jury acquitted the principal in a subsequent trial does not by itself entitle an accomplice to the same offense to a new trial. In many instances different juries reach opposite results on the same evidence. See Rozell v. State, 502 S.W.2d 16 (Tex.Cr.App.1973). Appellant’s fifth ground of error is overruled. Finding no reversible error, the judgment is affirmed. DOUGLAS, Judge (concurring). I concur in the result but do not agree that appellant’s wife should have been permitted to testify that appellant received commendations and awards while he was in the Army. Just how far will a trial court have to go at the penalty stage of the trial? Can the State show misconduct of a defendant while he was in the service? We should not tax overburdened trial courts with proof of a defendant’s life history. If such is permitted, the State will no doubt counter or attempt to show specific acts of misconduct to rebut that offered by a defendant. We should not lengthen trials with matter which has nothing to do with the issues in the case.

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Cecil Ruben CURREN, Appellant, v. The STATE of Texas, Appellee. Nos. 48559-48561. Court of Criminal Appeals of Texas. May 29, 1974. Arthur A. Estelan, San Antonio (Court appointed on appeal) for appellant. Ted Butler, Dist. Atty., Jim Folsom and Douglas C. Young, Asst. Dist. Attys., San Antonio, and Jim D. Vollers, State’s Atty., Austin, for the State. OPINION DALLY, Commissioner. These are appeals from three convictions for the offense of felony theft wherein appellant waived trial by jury and entered pleas of guilty before the court. Punishment was assessed at six years in each case. Appellant contends that the trial court erred in accepting his pleas of guilty on the ground that Art. 26.13, Vernon’s Ann. C.C.P., was not complied with because the trial court did not ascertain if his pleas were uninfluenced by any consideration of fear, persuasion, or delusive hope of pardon. The record reflects that the trial court correctly advised appellant of the range of punishment. The trial court then admonished appellant as follows: “THE COURT: Are you pleading guilty in each of these cases because you feel you are guilty ? “APPELLANT: Yes. “THE COURT: You are not doing this by reason of fear ? “APPELLANT: No, sir. “THE COURT: You are not doing this because anyone has promised you an-thing ? “APPELLANT: No, sir. “THE COURT: You are doing this voluntarily because you are guilty ? “APPELLANT: Yes, sir.” After appellant’s counsel stated that in his opinion appellant was sane, appellant’s guilty pleas were accepted by the trial court. The judgments in each of the three cases recite that the court admonished appellant of the consequences of his pleas and that it plainly appeared to the court that appellant was sane and was uninfluenced by any consideration of fear, or by any promises, persuasion, or delusive hope of pardon which prompted appellant to confess his guilt. Although the exact wording of Art. 26.-13, supra, was not used by the trial judge, we have concluded that the admonishment given was sufficient compliance with the statute. See McClintick v. State, 508 S.W.2d 616 (2/27/74); Mayse v. State, 494 S.W.2d 914 (Tex.Cr.App.1973); Espinosa v. State, 493 S.W.2d 172 (Tex.Cr.App.1973); Mitchell v. State, 493 S.W.2d 174 (Tex.Cr.App.1973). There being no reversible error, the judgments are affirmed. Opinion approved by the Court. ONION, Presiding Judge (dissenting). This court has over a period of years held that the provisions of Article 26.13, Vernon’s Ann.C.C.P., are mandatory and the prerequisites therein must be complied with as a condition precedent to the validity of a plea of guilty or nolo contendere in a felony case and the question of compliance may be raised at any time. May v. State, 151 Tex.Cr.R. 534, 209 S.W.2d 606 (1948); Alexander v. State, 163 Tex.Cr.R. 53, 288 S.W.2d 779 (1956); Ex parte Marshall, 479 S.W.2d 921 (Tex.Cr.App.1972); and Wilson v. State, 456 S.W.2d 941, 943 (Tex.Cr.App.1970) (concurring opinion), and cases there cited. In the instant case the majority opinion sets forth the admonishment. Nowhere does the admonishment inquire whether the guilty plea was prompted by any persuasion or delusive hope of pardon as required by the mandatory provisions of Article 26.-13, Vernon’s Ann.C.C.P. Article 26.13, supra, and its forerunners have remained virtually unchanged in verbiage for over 116 years, being reenacted repeatedly after this court’s repeated interpretation of its mandatory character. It is my firm belief that some trial judges will never comply with the procedure required by the Legislature so long as a majority of this court is willing to accept any sloppy effort inquiry as a sufficient compliance with the statute. See Bosworth v. State, 510 S.W.2d 334 (March 13, 1974). I dissent.

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Eden FLORES, Appellant, v. The STATE of Texas, Appellee. No. 48478. Court of Criminal Appeals of Texas. May 29, 1974. Gerald K. Fugit, Odessa, for appellant. John H. Green, Dist. Atty. and Dennis Carda, Asst. Dist. Atty., Odessa, and Jim D. Vollers, State’s Atty., Austin, for the State. OPINION DAVIS, Commissioner. Appeal is taken from a conviction for sale of heroin. Punishment was assessed by the jury at two hundred and fifty years. The sufficiency of the evidence to support the conviction is not challenged. At the outset, appellant contends that the court erred in not granting his motion for an interpreter. In Diaz v. State, 491 S.W.2d 166, it was stated, “The only basis for a trial court providing an interpreter to an accused is the constitutional and statutory guarantees of confrontation under the Constitutions of Texas and of the United States. Ex parte Marez, 464 S.W.2d 866 (Tex.Cr.App.1971), citing Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923.” Appellant filed a motion requesting appointment of an interpreter in which it was alleged “that his speaking ability as to English is halting and not fluent.” Prior to announcement of ready at trial on the merits, counsel for appellant asked to be relieved as court-appointed counsel for the reason that appellant did not want him to represent him and this had resulted in appellant refusing to cooperate in preparing his defense. Counsel’s statement to the court in regard to appellant’s disenchantment with him was quite lengthy. At the conclusion of such statement counsel asked appellant, “ . . . is it correct about what I said,” and counsel then stated, “Let the record indicate his answer is he [appellant] is nodding his head yes.” Again, after other matters had been presented to the court before the trial began, appellant’s counsel asked appellant, “You are hearing all this and that is correct?” After the foregoing question, counsel for appellant stated, “Let the record show that he is nodding his head in the affirmative.” Counsel for appellant then called the court’s attention to appellant’s motion for an interpreter to be appointed, stating in support thereof, that “he does speak English but it is halting and he is very slow about it,” and he is “much more fluent in Spanish.” The court, in overruling the motion, noted, “In view of the Defendant’s obvious fluency in the English language, at the former hearing on the matter of reduction of bond, I will deny your Motion.” both understanding and speaking, exhibited Unlike Garcia v. State, 151 Tex.Cr.R. 593, 210 S.W.2d 574, relied on by appellant, there is no claim or showing that appellant could not and did not understand the English language during his trial. We conclude that the mere fact that an accused may be more fluent in speaking Spanish does not, in and of itself, make it incumbent upon a trial court to appoint an interpreter for an accused who speaks and understands the English language. We find that the court did not err in refusing to appoint an interpreter for appellant. Appellant contends that the court erred in allowing appellant’s attorney to enter a plea of not guilty for him, “when the appellant was not cooperating with his attorney in any form, shape, or fashion and the plea of not guilty was not that of the appellant himself.” Patently, the entry of a plea of not guilty for an accused by his counsel does not waive any privilege of the accused and is not an admission of an incriminating fact or guilt. See Hultin v. State, 171 Tex.Cr.R. 403, 351 S.W.2d 248; Crawford v. State, 161 Tex.Cr.R. 554, 278 S.W.2d 845; see also 7 Tex.Jur.2d, Attorneys at Law, Section 54. The entry of a plea of not guilty by counsel is not an act beyond counsel’s capacity as an attorney. Article 27.13, Vernon’s Ann.C.C.P., cited by appellant, relates to “a plea of ‘guilty’ or a plea of ‘nolo contendere.’ ” Further, it is noted that no objection was voiced by appellant to his counsel entering a plea of “not guilty” for him in the trial court and such complaint is made for the first time on appeal. The judgment is affirmed. Opinion approved by the Court.

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Samuel CRAWFORD, Appellant, v. The STATE of Texas, Appellee. No. 48029. Court of Criminal Appeals of Texas. May 15, 1974. Rehearing Denied June 5, 1974. Marvin O. Teague [On Appeal], Houston, for appellant. Carol S. Vance, Dist. Atty. and James C. Brough and Stanley Topek, Asst. Dist. Atty., Houston, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION ONION, Presiding Judge. This appeal is from a conviction for the offense of robbery by assault wherein the punishment was assessed at five (5) years’ confinement in the Texas Department of Corrections. On appeal appellant’s counsel has filed an appellate brief in which he concludes the appeal is without merit and wholly frivolous. Aware of his duties under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Gainous v. State, 436 S.W.2d 137 (Tex.Cr.App.1969), counsel has advanced arguable contentions to support the appeal. Initially, appellant challenges the sufficiency of the evidence to support his conviction, contending the evidence reflects the offense of theft, not robbery, since there is no showing of antecedent violence prior to the alleged offense. The complainant, Dorothy Mae Countee, testified that on July 30, 1971, while riding a bus in Houston, she noticed the appellant, a passenger on the bus, was “watching” her. When the complainant alighted from the bus at her destination, appellant also dismounted same and began walking beside her. After initiating a conversation with the complainant, appellant learned that she was enroute to pay a bill at a “television rental place” and followed the complainant to her destination. After arriving at the store, the complainant proceeded to pay the cashier her bill of $14.40 when the appellant instead offered his money to the cashier, who accepted same. The couple then left the store with the appellant inquiring where she was going. Appellant then hailed a cab, which carried the couple to the NuDay Hotel, located in Houston. The appellant and the complaining witness then went to a room in the hotel which, in the complainant’s opinion, was filthy. The complainant then told the appellant that she could not “lay” in there because of the condition of the room. While in the room, the complainant undressed, but testified that the appellant did not “make love” to her because “he couldn’t.” As she commenced to dress, the appellant snatched her clothes from her and demanded his money in return. When the complainant offered to return the cash, the appellant refused to accept it. Approximately two hours later, appellant dressed and left the hotel. Complainant further testified that her next confrontation with the appellant occurred three days later when he threatened her that if she didn’t give him “some kind of sex or consideration” he would kill her. The complaining witness also testified that the appellant threatened her in the same manner over the telephone on numerous occasions and that she was afraid of him. The last of these conversations occurred at approximately 11:30 a. m. on August S, 1971, when the appellant told the complaining witness that “By the time I get off work you had better see me, and if you don’t I will kill you. You either give me some kind of sex consideration or either go to Ben Taub or I will kill you, and you had better never walk the streets if you don’t.” Shortly thereafter, the complainant was walking to the store with her niece when the appellant approached them and said, “Now, talk your big talk” and “Give me my money.” The appellant “grabbed” the complainant, who gave her purse to her niece, and the appellant snatched the purse from the niece and a struggle ensued between the complainant and appellant. During the struggle, appellant started hitting the complaining witness with his fists and also took $18 from her after prying her hand open. The complainant further testified that she had managed to escape her attacker’s grasp and began running away until the appellant caught her and was hitting her when the police arrived. She related the purse contained $71. Officer J. R. Johansen of the Houston Police Department testified that while on patrol on August 5, 1971, he saw the appellant attempting to strike the complainant, when she broke away and started running down the street with the appellant in pursuit. Johansen then turned his patrol car around and was returning to the scene when he noticed that the appellant had a purse in one hand while attempting to strike the woman with the other. The witness further testified that the appellant then placed his hand in the purse, and when the officer alighted from his vehicle, the appellant had his hand in his pocket. Upon being informed of what had occurred, the officer arrested appellant and a search of his person uncovered over $100 in cash, with $58 tagged under the complainant’s name. To constitute the offense of robbery, there must be actual or threatened violence to the person antecedent to the robbery or intimidation of such character that the injured party is put in fear. The fear must be of such nature as in reason and common experience is likely to induce a person to part with his property against his will. Jones v. State, 467 S.W.2d 453 (Tex.Cr.App.1971), and cases therein cited. The record is replete with testimony of threatened violence and intimidation which placed the complainant in fear of life or serious bodily injury prior to the taking of the property in question. After numerous threats over the telephone, the appellant approached the complainant, demanding money, and “grabbed” 'her before she handed her purse to her niece. After a struggle ensued, the appellant pried the complainant’s hand open and took money in addition to that in the purse he had secured. It is true that in Jones v. State, 467 S.W.2d 453, 454 (Tex.Cr.App.1971), this court stated: “It is well settled that to constitute the offense of robbery, there must be actual or threatened violence to the person antecedent to the robbery, or intimidation of such character that the injured party is put in fear. . . .” Under the circumstances presented, we cannot agree that the evidence in the instant case fails to show antecedent violence. The evidence is sufficient to establish antecedent violence which distinguishes the offense of robbery from that of theft from person. See Glasper v. State, 486 S.W.2d 350 (Tex.Cr.App. 1972); Hicks v. State, 482 S.W.2d 186 (Tex.Cr.App. 1972); Jemmerson v. State, 482 S. W.2d 201 (Tex.Cr.App.1972); Van Arsdale v. State, 149 Tex.Cr.App. 639, 198 S.W.2d 270 (1946). Nevertheless, relying upon Barton v. State, 88 Tex.Cr.R. 368, 227 S.W. 317 (Tex.Cr.App. 1921), the appellant contends that a creditor’s assault upon a debtor for the purpose of collecting a debt does not constitute robbery by assault. Barton did recognize such rule and observed that in Fanin v. State, 51 Tex.Cr.R. 41, 100 S.W. 916 (1907), there were expressions varying from the views stated in Barton, but that they were out of harmony with the weight of authority, both English and American. In the later case of Henderson v. State, 149 Tex.Cr.R. 167, 192 S.W.2d 446 (1946), Fanin was cited with approval, with the court saying: “To hold otherwise would be establishing a dangerous doctrine, since it would authorize the accused not only to decide his own injury or damage but to enforce the collection thereof by force and violence. This is contrary to the policy of our form of government.” Fanin and Henderson have been cited with approval in Turner v. State, 150 Tex.Cr.R. 90, 198 S.W.2d 890 (Tex.Cr.App. 1946), and Frazier, v. State, 170 Tex.Cr.R. 432, 342 S.W.2d 115 (Tex.Cr.App. 1961). Appellant contends that although some later opinions, without mention of Barton, have reverted to the Fanin holding Barton has not been overruled and is still viable and is here controlling. Even if Barton is alive and well, as appellant contends, and even if the fact situation in the instant case can be stretched to cover a creditor-debtor situation, the appellant cannot prevail. In Bass v. State, 151 Tex.Cr.R. 172, 206 S.W.2d 599 (1947), it was written: “We think that the principle involved in the Barton case does not avail one who takes not only property which he claims but other property at the same time. The appellant says he claims only $3.85, but admits taking $20.” In the instant case the appellant paid the complainant’s bill of $14.40 without request. If a creditor-debtor relationship was established, the money actually taken at the time of the alleged offense was far in excess of $14.40. Still further, to eliminate any confusion in the prior holding of this court, we overrule Barton v. State, supra. Next, appellant complains that his conviction is void because “The court in which the appellant was tried was not a court of competent jurisdiction.” Complaint is also made that the Honorable H. P. (Horsepower) Green, a retired judge, conducted the trial without a proper appointment from the Chief Justice of the Supreme Court of Texas. The record reflects that Judge Green conducted the trial in the 176th District Court B beginning December 13, 1972. An administrative assignment signed by the Honorable Joe R. Greenhill, Chief Justice of the Supreme Court of Texas, dated December 18, 1972, assigned Judge Green to the 176th District Court B beginning January 1, 1973. No objection was made to Judge Green’s presiding. The matter was raised for the first time in the appellate brief. As this court stated in Peach v. State, 498 S.W.2d 192 (Tex.Cr.App. 1973): “The Court of Criminal Appeals will take judicial notice of the fact that the judge who presided at the trial of the accused was retired on a certain date and had timely filed his election to continue in a judicial capacity. Buchanan v. State, 471 S.W.2d 401 (Tex.Cr.App. 1971). And such judge is a ‘district judge’ within the rule that no formal order need be entered for a judge of one district court to preside over a case in place of a duly elected judge and no formal order is required for him to preside. Buchanan v. State, supra.” Whether Judge Green was assigned by administrative order to sit in the 176th District Court on the date in question would not matter under the circumstances presented. Since Judge Green, as a retired judge and having properly filed his election to continue to serve as a judicial officer, is a district judge in this sense, no formal order need have been entered at the time of trial for him to preside over the case. Even so, appellant’s failure to object at the time of trial waives any complaint he now has on appeal. See and compare Peach v. State, supra; Buchanan v. State, supra; Gregory v. State, 495 S.W.2d 891 (Tex.Cr.App. 1973). Appellant’s second ground of error is overruled. Appellant has presented other grounds of error which are not briefed or argued and clearly do not comply with the provisions of Article 40.09, Sec. 9, Vernon’s Ann.C. C.P. After reviewing same and concluding that nothing is presented “in the interest of justice” under Article 40.09, Sec. 13, Vernon’s Ann.C.C.P., appellant’s contentions are overruled. Further, after thorough examination of the record, we conclude that the appeal is wholly frivolous. The judgment is affirmed. . “Ben Taub” is the County Hospital in Houston. . The complainant testified she was nervous and excited at the time and told the police only $58 was missing when in fact a larger amount of money had been taken. . On redirect examination the complainant testified: “Q. Did Samuel Crawford make an assault on you? “A. Yes. He did. “Q. Did he put you in fear of your life and bodily injury? “A. Yes. He did. “Q. Did he take from your possession a purse and money against you will? “A. Yes. He did. “Q. And was that your property that he took? “A. Yes. It was.” . In Wharton’s Criminal Law, Vol. 2, Sec. 550, p. 250, it is said: “Except in a few jurisdictions, a creditor’s taking of money from his debtor to satisfy or secure the obligation, either by force or intimidation, is not regarded as robbery, the generally accepted doctrine being that the requisite animus furandi cannot exist when the property is taken under a bona fide claim of right. The rule is different however, in some jurisdictions, as to the forcible taking of property for the purpose of collecting uncertain, unliquidated damages, and such a taking will support a prosecution for robbery.” . Interestingly, Bass does not mention JPanin or other cases following it, just as those cases do not consider Barton. . Compare Sec. 9.503, Uniform Commercial Code, which reads: “Unless otherwise agreed a scured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action. If the security agreement so provides the secured party may require the debtor to assemble the collateral and make it available to the secured party at a place to be designated by the secured party which is reasonably convenient to both parties. Without removal a secured party may render equipment unusable, and may dispose of collateral on the debtor’s premises under Section 9.504.”

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Johnny Eduardo SWIFT, Appellant, v. The STATE of Texas, Appellee. No. 48313. Court of Criminal Appeals of Texas. May 22, 1974. Frank M. Fitzpatrick, Jr., Waco, for appellant. Martin D. Eichelberger, Dist. Atty., Waco, Bryan F. Russ, County Atty., Hearne, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION GREEN, Commissioner. Appellant was convicted of murder with malice of H. C. Kelly. His punishment was assessed at 101 years. This case was tried in the 54th District Court of McLennan County on a change of venue from the 20th District Court of Robertson County. Appellant initially contends that the court erred in overruling his motion to quash the indictment because the grand jury commission which selected the grand jury that returned the indictment was made up in such way as to constitute racial discrimination. The record discloses that appellant is a Negro, and there were no Negroes on the grand jury commission. Evidence of the county attorney of Robertson County disclosed that to the best of his recollection, he did not think there had ever been a Negro on a grand jury commission in Robertson County. He estimated that one-third of the population of Robertson County is colored. Appellant does not contend that discrimination was practiced in Robertson County in the selection of grand jurors, nor does he deny that Negroes served on the grand jury which returned this indictment. This Court has consistently held that the mere fact that no Negro was appointed on the jury commission is not sufficient to show discrimination. For racial discrimination in the selection of the commissioners to be established, it must be shown that such discrimination invaded into the work of the commissioners in the selection of the lists from which the grand jurors are chosen. Lamkin v. State, 165 Tex.Cr.R. 11, 301 S.W.2d 922, cert. denied, 355 U.S. 59, 78 S.Ct. 137, 2 L.Ed.2d 107, rehearing denied, 355 U.S. 908, 78 S.Ct. 335, 2 L.Ed.2d 263; McMurrin v. State, 156 Tex.Cr.R. 434, 239 S.W.2d 632, cert. denied, 342 U.S. 874, 72 S.Ct. 115, 96 L.Ed. 657; Morris v. State, 158 Tex.Cr.R. 516, 251 S.W.2d 731, cert. denied, 345 U.S. 951, 73 S.Ct. 863, 97 L.Ed. 1374; Williams v. State, 167 Tex.Cr.R. 503, 321 S.W.2d 72, cert. denied, 359 U.S. 930, 79 S.Ct. 615, 3 L.Ed.2d 632; McNair v. State, 159 Tex.Cr.R. 405, 265 S.W.2d 105; Addison v. State, 160 Tex.Cr.R. 1, 271 S.W.2d 947; Oliver v. State, 155 Tex.Cr.R. 461, 236 S.W.2d 143. The first ground of error is overruled. Viewing the evidence most strongly in favor of the verdict, the record reflects the following: H. C. Kelly, sometimes known as Jack Kelly, was, on May 17, 1972, Chairman of the Board of Directors of the Planters’ and Merchants’ State Bank of Hearne, and lived with his wife in Hearne. He attended to his duties at the bank on Tuesday, May 16, 1972, but failed to appear on the following day. Investigation of his home by friends on the 18th disclosed that he, his wife and 19 year old daughter, Nancy Kelly Stovall, had been killed, and their bodies were found in separate bedrooms. Dr. Jachimczk, Chief Medical Examiner of Harris County, was immediately called to the scene, and his examination disclosed that each had been stabbed and cut with a sharp instrument numerous times. H. C. Kelly’s death was caused by two wounds in the back, made, in the doctor’s opinion, with a knife having a blade at least four inches long. Mrs. Kelly suffered many knife wounds, and was found with an electric cord around her neck, which was broken. Cause of death was strangulation. Nancy’s body had sixteen knife wounds, and her neck also had an electric cord around it, and was broken. Dr. Jachimczk estimated that Kelly had been dead for about 36 hours, and that the time of death was between 11:00 P.M. May 16 and 1:00 A.M. May 17. Dwight Williams, 27 years old, testified that he had known Lee Murry Jurode for a number of years, and that Jurode, who formerly lived in Hearne, had lived in Albuquerque, New Mexico, for the past four years. About 8:00 P.M. on Tuesday, May 16, he was in Hearne in front of Hurt’s Grocery Store when he saw Jurode arrive in company with appellant and a “Spanish guy.” Jurode introduced appellant to Williams, who told him that they planned to go over to H. C. Kelly’s home, hold his wife as hostage, take Kelly to the bank and rob “it.” He asked Williams to join them. Williams refused to do so. Later that night, Jurode came to Williams’ home and asked him to help in their plan to take Kelly to the bank to rob “it.” Again Williams refused. Wilford Hammond, 21 years old, had known Jurode for about 15 years. He saw Jurode at the Bossanova Club in Hearne Sunday night, May 14th, in company with appellant, a “Spanish fellow,” and a “colored lady.” Jurode approached him and stated that they were going to Kelly’s home to get Kelly to go open the bank so they could rob “it,” and if he refused, they were “going to shoot and cut them and tie them up.” Hammond declined to join them. One or two nights later, at the Sunset Strip, Jurode again asked Hammond to join them, and again he refused. Hammond testified that he tried to contact the sheriff, but could not reach him. At this second time, Jurode told Hammond they were going to use the Mexican boy to try to get in the house. Jo Ann Adams, 24 years old, testified as a State’s witness. On May 13, 1972, she, appellant, Lee Murry Jurode, and Robert Duron left Albuquerque, New Mexico, where she had been living with appellant, in a white Pontiac headed for Hearne. Appellant stated that they were going to Hearne to “rob a bank.” Appellant told her that they would “rob the bank” and lock the old man in the vault while Jurode and Duron stayed in the house with his wife and daughter. They arrived in Hearne about 6:00 P.M. on Sunday, May 14, and went to “The Hill,” a section of Hearne. She stayed in the car while the men talked to some people, and then they left, this time for Oklahoma City. Staying there only a short time, they left to go back to Hearne, arriving there some time on Tuesday the 16th. All four had been together all of this time. After another visit to “The Hill,” the men took her to a friend’s apartment, left her there, and later that night returned and got her. They left together in the Pontiac and drove to Oklahoma City again. There they rented an apartment. A number of guns, three suitcases, a fur stole, and other articles were taken from the trunk of the car into the apartment. While there, appellant told her that at Hearne he had killed Kelly, Duron had killed Kelly’s wife, and Jurode had killed the daughter. Lieutenant N. A. Maxwell of the Oklahoma City Police Department testified that on May 22, 1972, he, with four other police officers, went to an apartment on the northwest corner of the second floor of the building located at 140 East Park Street in Oklahoma City armed with a search warrant, issued on an affidavit made by Lee Murry Jurode. At the time, appellant was in custody. The officers entered by using a key to the door given Maxwell by Ju-rode. In the room, in plain view, they found a number of articles which were seized and taken to the police station. Proper custody was established, and they were introduced in evidence. They included among others the following: A Phillips Petroleum Company credit card made out to H. C. Kelly; A BankAmericard issued to Henry C. Kelly; A watch with the inscription “P & M Employees 1969,” identified by James Florance, President of the Planters’ and Merchants’ State Bank of Hearne as having been given to deceased in 1969; A mink stole with the name “Reo Kelly” embroidered on the collar; A suit of men’s clothing with a laundry tag containing the name of “Jack Kelly,” and the trade mark of Conway & Co. of Bryan, Texas. This suit was identified by the witness Florance as being one frequently worn by deceased in his work at the bank; A rifle identified by Florance as being deceased’s deer hunting gun; A check with writing recognized by Florance as being that of Mrs. Kelly. A palm print on one of the guns which, when compared with a known print of appellant, was identified by a qualified expert as being that of appellant. The appellant did not testify before the jury. He offered only one witness, an Oklahoma City officer, whose testimony was completely negative. In his ninth ground of error, appellant contends that the evidence is insufficient to support the verdict. Appellant, in a very brief discussion, seems to argue that the testimony of the accomplice witness Jo Ann Adams, was not sufficiently corroborated by other evidence to justify submitting the case to the jury. In his eighth ground, appellant complains of the court’s failure to charge on circumstantial evidence, as requested by appellant. The court instructed the jury that if an offense was established Jo Ann Adams was an accomplice witness as a matter of law, and properly charged the jury on the necessity of corroborating accomplice testimony. We have heretofore summarized the evidence. Jo Ann Adams described the activities of her companions, including appellant, and testified that appellant admitted to her that he killed deceased H. C. Kelly. It was necessary, under the established rules of corroboration of the testimony of an accomplice witness, to eliminate the evidence of Jo Ann, and examine evidence of other witnesses to ascertain if there be inculpatory evidence of incriminating character which tends to connect the accused with the commission of the crime. Chambers v. State, Tex.Cr.App., 508 S.W.2d 348 (1974); Cherb v. State, Tex.Cr.App., 472 S.W.2d 273. We have reviewed the evidence as above set forth, and find that the testimony of non-accomplice witnesses is amply sufficient not only to tend to connect the appellant with the commission of the offense, but also sufficient to support the verdict even in the absence of the testimony of Jo Ann Adams. We also find that it was not error for the court to refuse to charge on circumstantial evidence. Jo Ann testified that appellant told her he had killed H. C. Kelly, the deceased. A charge on circumstantial evidence need not be given where there is evidence of an admission by the accused that he killed the deceased. Hogan v. State, Tex.Cr.App., 496 S.W.2d 594; Corbett v. State, Tex.Cr.App., 493 S.W.2d 940; Steel v. State, Tex.Cr.App., 459 S.W.2d 649. Where there is direct testimo ny, although it comes from an accomplice witness, a charge on circumstantial evidence is not required. Bradley v. State, Tex.Cr.App., 450 S.W.2d 847; Blankenship v. State, Tex.Cr.App., 448 S.W.2d 476; Byrd v. State, Tex.Cr.App., 435 S.W.2d 508; White v. State, Tex.Cr.App., 385 S.W.2d 397. The eighth and ninth grounds of error are overruled. In six grounds of error (Nos. 2 to 7 inclusive) appellant complains of the introduction of evidence of the search of his apartment in Oklahoma City, and of the fruits of such search. He contends, as he did in the trial court, that anything taken out of the apartment was taken “as the result and the product of an illegal search and seizure.” He points out that he was under arrest in jail when the search warrant was issued, and that it was not served on him, and that there were no exigent circumstances shown. It is his further contention that the search warrant was void, being not in compliance with the requirements of Articles 15.05 and 18.13, Vernon’s Ann.C.C.P., and that there was insufficient evidence that the law of Oklahoma was any different from the law of Texas on the requirements of a search warrant. It is not necessary that we pass on the validity of the search warrant in our disposition of these grounds of error. We find, from the evidence, that the officers, in making the search in question and seizing the various articles heretofore mentioned in this opinion, were acting with proper consent voluntarily given by Jurode, who had authority to give consent. The record reflects that from the time appellant, Jurode, Duron and Jo Ann Adams arrived in Oklahoma City to their arrest they jointly occupied the apartment which was searched. Jo Ann Adams testified that she had been living with appellant since March, 1972, in Albuquerque. She said the four participants in this offense; i. e., she, appellant, Jurode and Duron, left Albuquerque together on May 13 headed for Hearne with the idea of robbing a “bank.” They were together at all times, except for the brief period Tuesday night when she was left with a friend, until they they were arrested in Oklahoma City. In the latter city, “we” moved into the apartment, where she and appellant slept in one room, and Jurode and Duron slept in another. Lieutenant Maxwell, who headed the search group of officers, testified out of the presence of the jury that Jurode had voluntarily surrendered in Oklahoma City after calling a police officer in Albuquerque. Jurode, after being duly advised of his rights, gave Maxwell the key which Maxwell used to get into the apartment. Maxwell testified as follows: “Q How did you gain excess (sic) to this apartment — how did you get in the apartment door ? “A I unlocked the door and walked in. “Q You had a key to the apartment door? “A Yes, sir. “Q Where did you obtain the key ? “A I obtained it from Lee Jurode. “Q Lee Jurode had a key to the apartment ? “A Yes, sir, he did. “Q All right. Did you discuss with Lee Jurode whether or not he lived in that apartment ? “A Yes, sir. “Q What did he tell you ? “A He said he did. “Q Did you believe him ? “A Yes, sir, I did. “Q Did Lee Jurode give you consent to search his apartment ? “A Yes, sir, he did .... “Q Did Lee Jurode give you the key to the apartment subsequent to being warned of all of his constitutional rights ? “A Yes, sir, that’s correct. “Q If you know, officer, was Lee Ju-rode in custody partly through his own act ? Did he try to get in custody? “A Yes, sir, he did. “Q Was it your information that he had phoned a Lt. Fisk in Albuquerque, New Mexico? “A Correct. Yes, sir. “Q And this was the only reason that you all knew where he was and how to arrest him, is that correct ? “A That’s correct. Yes, sir.” Appellant, out of the presence of the jury on his motion to suppress, testified that he rented the apartment, paid the rent, and that the others were his guests. The evidence of Jo Ann Adams in the instant case clearly reflects that the four members of the group were, in all of the incidents connected with this offense, acting together. All were occupants of the apartment in Oklahoma City, and were jointly using same. Except for appellant’s testimony, which the trial court could believe or reject, the record reflects that Ju-rode had equal rights with appellant concerning the apartment. The record reflects that his handing the officer the key, and giving his consent to the voluntary search, was not in any manner caused by coercion. It is well established in Texas that third parties have authority to consent to a search when they have equal control over and equal use of the premises being searched. Lowery v. State, Tex.Cr.App., 499 S.W.2d 160; Jemmerson v. State, Tex.Cr.App., 482 S.W.2d 201; Sorensen v. State, Tex.Cr.App., 478 S.W.2d 532; Powers v. State, Tex.Cr.App., 459 S.W.2d 847; Burge v. State, Tex.Cr.App., 443 S.W.2d 720, cert. denied 396 U.S. 934, 90 S.Ct. 277, 24 L.Ed.2d 233; Cass v. State, 124 Tex.Cr.R. 208, 61 S.W.2d 500. See also Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684; Gurleski v. United States, 405 F.2d 253 (5th Cir.). The burden is on the State to show by clear and convincing evidence that the consent was freely and voluntarily given. Allen v. State, Tex.Cr.App., 487 S.W.2d 120. Although the evidence of Officer Maxwell concerning Jurode’s consent to the search came after the court had admitted the fruits of the search in evidence, error, if any, was rendered harmless, since the evidence would have been admissible in view of the subsequent testimony of Maxwell. Johnson v. State, Tex.Cr.App., 494 S.W.2d 870; Gilmore v. State, Tex.Cr.App., 493 S.W.2d 163. In United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), the Supreme Court said: “In Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1972), the Court reaffirmed the principle that the ¿earch of property, without warrant and without probable cause, but with proper consent voluntarily given is valid under the Fourth Amendment. The question now before us is whether the evidence presented by the United States with respect to the volunary consent of a third party to search the living quarters of the respondent was legally sufficient to render the seized materials admissible in evidence at the respondent’s criminal trial.” The facts of that case were that respondent Matlock was arrested in the yard in front of the home of Mr. and Mrs. Marshall. Living in the home were Mrs. Marshall, several of her children including Mrs. Gayle Graff and her son, and Mat-lock. Although Gayle and respondent were not married to each other, they shared the same bedroom, sleeping together there, and clothes of both were in the room. There was evidence that respondent had on occasion introduced her as his wife. Immediately after the arrest of respondent, three officers went to the door of the house and were admitted by Gayle Graff. They hold her they were looking for money and a gun, and, according to the officers’ testimony at the hearing to suppress she voluntarily consented to a search of the house, including the bedroom which she said was occupied jointly by herself and respondent. The officers found a large sum of money in the house. Matlock was indicted in the Federal Court for bank robbery. The issue on the hearing of respondent’s motion to suppress the seized evidence was whether the hearsay evidence of the officers showed sufficient relationship to the bedroom as to make her consent valid against respondent, and whether such evidence being hearsay was admissible at the.hearing to prove the truth of the facts stated therein. The district court held that it was not admissible. The Court of Appeals (7th Circuit) affirmed an order of the trial court suppressing this evidence. 476 F.2d 1083. The Supreme Court, in reversing the judgments of the Court of Appeals and the trial court, and remanding the case to the district court for reconsideration in light of its opinion, held that “the voluntary consent of any joint occupant of a residence to search the premises jointly occupied is valid against the co-occupant, permitting evidence discovered in the search to be used against him at a criminal trial” cited many cases, Federal and State, including Gurleski v. United States, 405 F.2d 253 (5th Cir.), and Burge v. State, 443 S.W.2d 720 (Tex.Cr.App.). The Court further stated that recent authority “clearly indicates that the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared,” citing Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 24 L.Ed.2d 233. The Court also held that the hearsay statements of Mrs. Graff’s giving consent for the search, although not admissible before the jury, were admissible before the trial court to assist in determining the issue of voluntary consent where the trial court can accord the evidence such weight as it deems desirable. In this regard, the Court said: “As for Mrs. Graff’s statements to the searching officers, it should be recalled that the rules of evidence normally applicable in criminal trials do not operate with full force at hearings before the judge to determine the admissibility of evidence,” citing Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879. Since in the instant case the search of the premises was made with the voluntarily given consent of one authorized to give such consent, appellant’s grounds of error Nos. 2 to 7 inclusive are overruled. The judgment is affirmed. Opinion approved by the Court. . Williams had twice been convicted of burglary, and at the time was on bond charged with a felony. . Deceased’s wife. . In addition, Jurode signed the affidavit attached to the search warrant and neither the affidavit nor the warrant contained any names of who occupied the apartment. . Mrs. Graff, at tlie hearing, denied that she gave consent. The district court found that she was not advised of her right to refuse consent, but the Supreme Court held that such warning was not necessary. . In Matlock, supra, the evidence showed that after the first search the officers returned on two occasions that same day to renew their search of the premises.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

David Charles POPE, Appellant, v. The STATE of Texas, Appellee. No. 48525. Court of Criminal Appeals of Texas. May 29, 1974. Randy Taylor, Dallas, for appellant. Henry Wade, Dist. Atty., W. T. West-moreland, Jr., Asst. Dist. Atty., Dallas, and Jim D. Vollers, State’s Atty., Austin, for the State. OPINION DALLY, Commissioner. The conviction is for assault with the intent to murder with malice; the punishment, imprisonment for twenty-five years. The appellant was tried before two juries upon the same indictment charging that he “did unlawfully, voluntarily and with malice aforethought in and upon Shelia Diane Brumley make an assault with the intent then and there to murder the said Shelia Diane Brumley.” The appellant argues he has been twice put in jeopardy for the same offense in violation of the Fifth Amendment to the Constitution of the United States. The Fifth Amendment’s Double Jeopardy Clause has been applied to the States through the Fourteenth Amendment. See Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The question presented is whether the appellant was acquitted by a jury in a former trial for the same offense for which he here stands convicted. We find that he was so acquitted and we reverse the judgment. At the first trial the jury was instructed on assault with intent to murder both with and without malice, on the intentional infliction of physical injury on a child fourteen years of age or younger, and on aggravated assault. The Court instructed the jurors that they were first to consider whether the appellant was guilty of assault with intent to murder with malice. If they did not find that the appellant was guilty of that offense beyond a reasonable doubt, they were to find him not guilty of that offense and next consider whether he was guilty of assault with intent to murder without malice. They were further charged that if they did not find him guilty beyond a reasonable doubt of that offense, they were to find -.him not guilty of that offense and next consider whether he was guilty of the offense of intentionally inflicting physical injury on a child fourteen years of age or younger. If they did not find him guilty of that offense beyond a reasonable doubt, they were to find him not guilty of that offense and next consider whether he was guilty of the offense of aggravated assault. The jury found that the appellant was guilty of “ . . . an intentional infliction of physical injury on a child fourteen years of age or younger as included in the indictment . . . ” The jury then assessed punishment of imprisonment for five years. The instruction authorizing a conviction for the intentional infliction of physical injury on a child fourteen years of age or younger was erroneously submitted, because Article 1148a, Vernon’s Ann. P.C. did not- become effective until after this offense was committed on July 13, 1971. See Article 1, Section 16, Constitution of the State of Texas, Vernon’s Ann. St.; Ex parte Alegria, 464 S.W.2d 868 (Tex.Cr.App.1971); Millican v. State, 145 Tex.Cr.R. 195, 167 S.W.2d 188 (1942); Cain v. State, 105 Tex.Cr.R. 204, 287 S.W. 262 (1926); cf. Stell v. State, 496 S.W.2d 623 (Tex.Cr.App.1973). The State does not dispute this. The Agreed Statement of Facts recites: “That subsequent to the trial the judge declared judgment and sentence to be ex post facto in nature and thus void ab ini-tio. That the Court, on its own motion, set the matter for trial, and thereafter the defendant through his counsel filed on April 9, 1973, a motion for speedy trial, which motion was granted the same day. That after the motion for speedy trial was granted the case was set for trial by the Court on May 7, 1973. That on May 7, 1973, this case came on to be heard for the second time and both sides announced. That the defendant’s announcement of ready was specifically made subject to his special plea, said plea urging prior jeopardy.” The appellant’s plea urging prior jeopardy was overruled and the appellant was again tried before a jury on the same indictment and substantially the same proof offered in the first trial. The jury in the second trial was authorized by the Court’s charge to find and it did find the appellant . . guilty of the offense of assault with intent to murder with malice as charged in the indictment . . . ” and thereafter assessed appellant’s punishment at imprisonment for twenty-five years. We face the question whether the prior improper verdict constitutes an acquittal of the offense for which appellant was convicted at the second trial. In Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), the defendant was charged on two counts with arson and with first degree murder. The trial court instructed the jury it could find the defendant guilty under the indictment’s second count of either first degree murder or second degree murder. The jury found the defendant guilty under the second count of second degree murder, but was silent as to first degree murder. “ . . . The trial judge treated second degree murder, which is defined by the District Code as the killing of another with malice aforethought and is punishable by imprisonment for a term of years or for life, as an offense included within the language charging first degree murder in the second count of the indictment.” 355 U.S. at 185-186, 78 S.Ct. at 222, (Footnote omitted.) The Supreme Court, citing the Double Jeopardy Clause of the Fifth Amendment, held that a finding of guilty of second degree murder constituted an implied acquittal of the charge of first degree murder. The Court concluded that the defendant could not be retried for first degree murder after reversal of his conviction for second degree murder. Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970), involved a State prosecution. There, the defendant was originally charged with murder but was found guilty by a jury of the lesser included offense of voluntary manslaughter. After the case was reversed due to an erroneous jury instruction, the defendant was retried under the original indictment for murder, but again was convicted of voluntary manslaughter. In holding that jeopardy barred retrial on the murder charge after the first trial, the Court said: “. . . [Tjhis Court has consistently refused to rule that jeopardy for an offense continues after an acquittal, whether that acquittal is expressed or implied by a conviction on a lesser included offense when the jury was given a full opportunity to return a verdict on the greater charge. There is no relevant factual distinction between this case and Green v. United States. Although the petitioner was not convicted of the greater charge on retrial whereas Green was, the risk of conviction on the greater charge was the same in both cases, and the Double Jeopardy Clause of the Fifth Amendment is written in terms of potential or risk of trial and conviction, not punishment.” 398 U.S. at 329, 90 S.Ct. at 1761. (Footnote omitted.) In Price, the State contended that, since the defendant was convicted of the same offense at each trial, namely voluntary manslaughter, and received no greater punishment the second time, the error was harmless. The Court held the error could not be found harmless, since the defendant was charged each time with first degree murder. “The Double Jeopardy Clause, as we have noted, is cast in terms of the risk or hazard of trial and conviction, not of the ultimate legal consequences of the verdict. To be charged and to be subjected to a second trial for first-degree murder is an ordeal not to be viewed lightly. Further, and perhaps of more importance, we cannot determine whether or not the murder charge against petitioner induced the jury to find him guilty of the less serious offense of voluntary manslaughter rather than to continue to debate his innocence.” 398 U.S. at 331, 90 S.Ct. at 1762 (Footnote omitted.) This Court has held that conviction of a lesser included offense bars a prosecution for the greater offense on a new trial, even if the new trial is obtained by the defendant at his instance. Welcome v. State, 438 S.W.2d 99 (Tex.Cr.App.1969). There, the defendant was indicted for assault to murder with malice. The jury found him guilty of assault to murder without malice, committed with a knife. After holding that the conviction must be reversed and remanded, this Court said the defendant could not be retried for any greater offense than assault to murder without malice. See also Galloway v. Beto, 421 F.2d 284 (5th Cir. 1970). Applicable also is Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Ashe had been acquitted by a jury due to insufficient evidence of robbing one of six poker players at a poker game. The Court found the only rationally conceivable issue in that case was the identity of the defendant as one of the robbers, and the jury had decided the issue adversely to the State. This finding that the defendant was not one of the robbers precluded Ashe’s trial for the robbery of another of the poker players in the same transaction. In so holding, the Court said the theory of collateral estoppel applies to criminal cases, and is embodied in the Fifth Amendment’s guaranty against double jeopardy. In other words, once an issue of ultimate fact has been determined by a valid and final judgment of acquittal, a defendant cannot be expected to “ ‘run the gantlet’ ” a second time. Ashe v. Swenson, supra, at 397 U.S. 446, 90 S.Ct. 1189. We hold that the jury’s guilty verdict at the first trial on the offense of intentional infliction of injury upon a child fourteen years of age or younger operated as an acquittal of the offenses of assault to murder with malice and without malice. Of course, since the statute prohibiting intentional infliction of injury upon a child fourteen years of age or younger was not in effect when the alleged offense occurred, it was not in fact a lesser included offense of assault to murder with malice. Nevertheless, under the Court’s instruction the jury could not have found the appellant guilty of the intentional infliction of injury charge without first finding him not guilty of assault to murder with malice and without malice. Under these circumstances, we conclude that there was prior jeopardy as to the offenses of assault to murder with malice and without malice. For these reasons, the appellant could not validly be convicted of assault to murder with malice. We further hold that, in the event of another trial, appellant cannot be tried on an indictment charging him with any offense greater than aggravated assault. Price v. Georgia, supra. The judgment is reversed and the cause remanded. Opinion approved by the Court.

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Kenneth Richard EILAND, Appellant, v. The STATE of Texas, Appellee. No. 48294. Court of Criminal Appeals of Texas. May 15, 1974. Rehearing Denied June 5, 1974. Walter Boyd, William G. Rosch, III, Houston, for appellant. Carol S. Vance, Dist. Atty., Phyllis Bell and Jack Bodiford, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION DALLY, Commissioner. The conviction is for murder; the punishment, imprisonment for life. The appellant says the trial court erred in failing to submit a charge on circumstantial evidence after appellant raised such failure by timely objection to the Court’s charge. The complaint is well taken, and we reverse. The son-in-law of the deceased entered her house around 10:00 P.M. on Sunday, July 9, 1972, through an unlatched screen door. He found the body of the seventy-six year old woman on her bedroom floor. The medical examiner stated that in his opinion death occurred sometime between 8:00 P.M., July 8th and 2:00 A.M., July 9th. There were indications the deceased had lain unconscious for several hours before death occurred. Death resulted from a severe beating about the head and chest. The deceased’s billfold was found to be empty, and her dresser appeared to have been ransacked. A window in the deceased’s bedroom provided further evidence. The inside window shade protruded outside underneath the closed window. The outside screen had been removed from the window and was on the ground near the window. A neighbor of the deceased’s testified she had helped the deceased mow her lawn the preceding Friday, and the screen had not been on the ground then. A palmprint was found on the windowsill. Three fingerprints were found, two on the outside of the window itself, and one on the inside of the window, in such a manner that they could only have been made while the window was raised. All of these prints were identified as appellant’s. No fingerprints were found on the deceased’s dresser, on the lamp which may have been used in the killing, or anywhere else in the room. This Court has held that the distinction between circumstantial and direct evidence is that the latter applies directly to the ultimate fact to be proved, while circumstantial evidence is the direct proof of a minor fact which, by logical inference, demonstrates the fact to be proved. Farris v. State, 496 S.W.2d 55 (Tex.Cr.App.1973); see also Selman v. State, 505 S.W.2d 255 (Tex.Cr.App.1974); Crawford v. State, 502 S.W.2d 768 (Tex.Cr.App.1973); Powell v. State, 494 S.W.2d 575 (Tex.Cr.App.1973); McBride v. State, 486 S.W.2d 318 (Tex.Cr.App.1972). The only evidence presented at the guilt phase of the trial connecting the appellant to the killing was testimony that the prints found on the window and windowsill were his. Such evidence that the appellant entered or left the deceased’s house through her bedroom window is not direct evidence of the killing. At most, it might be direct evidence of appellant’s illegal entry. See Nelson v. State, 505 S.W.2d 271 (Tex.Cr.App.1974); Dues v. State, 456 S.W.2d 116 (Tex.Cr.App.1970); Mann v. State, 420 S.W.2d 614 (Tex.Cr.App.1967); Grice v. State, 142 Tex.Cr.R. 4, 151 S.W.2d 211 (1941). Here, it is simply one circumstance which might be used by the jury in drawing its conclusion that appellant killed the deceased. The State relies in part upon Galvan v. State, 461 S.W.2d 396 (Tex.Cr.App.1971), for the proposition that fingerprints found at the scene of the crime may constitute direct evidence, thus eliminating the need for a charge on circumstantial evidence. However, as appellant correctly points out, Galvan v. State, supra, and other cases holding fingerprints to be direct evidence involve burglary charges, where illegal entry is the main fact to be proved. See also Nelson v. State, supra; Dues v. State, supra; Mann v. State, supra; and Grice v. State, supra. In the case at bar, as opposed to the burglary cases, appellant’s illegal entry is not the main fact at issue. Rather, his voluntary killing of the deceased is the main fact at issue. Of this the fingerprints are not direct evidence. The charge on circumstantial evidence should have been given. The case is reversed and the cause remanded. Opinion approved by the Court.

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Joe T. HUTCHINSON, Appellant, v. The STATE of Texas, Appellee. No. 48198. Court of Criminal Appeals of Texas. May 22, 1974. Bob Grove, Austin, for appellant. Robert O. Smith, Dist. Atty., C. E. Clover, Jr., Asst. Dist. Atty., Austin, and Jim D. Vollers, State’s Atty., Austin, for the State. OPINION ODOM, Judge. Appellant was convicted of robbery by assault; punishment, enhanced under Article 62, Vernon’s Ann.P.C., was assessed at life. In his first two grounds of error, appellant challenges the constitutionality of the search of an automobile from which items introduced into evidence were seized. Appellant’s challenge is met at the outset by the State’s contention that since the car was stolen appellant is without standing to raise the issue. The record reflects that after appellant was followed to a house and observed to park and leave the automobile in question, a registration check was run on the vehicle, which revealed that it was registered to someone in the Dallas-Fort Worth area and had been reported stolen. Upon receipt of this information the police locked the car and had it towed away. Subsequently it was searched and the evidence complained of was discovered therein. Appellant, on the issue of standing, contends (1) that the record does not establish that the vehicle was stolen, (2) that appellant retained sufficient possessory interest to establish standing, and (3) that he had “automatic” standing. With regard to whether the vehicle was stolen, all probative evidence points unequivocally to the single conclusion that it was stolen. Appellant presented no evidence to the contrary. Regarding appellant’s various assertions that he retained sufficient posses-sory interest to establish standing, we note that no motion to suppress was filed and no hearing sought on the lawfulness of the search and seizure. As stated regarding whether the car was stolen, appellant presented no evidence to the contrary, and specifically, there is no evidence that appellant asserted any possessory interest in the automobile in question. As stated in Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208, appellant could have taken the stand outside the presence of the jury and testified regarding any asserted possessory interest without any danger of incriminating himself. This he did not do. We fail to find any evidence of sufficient possessory interest to establish standing. Finally, with respect to “automatic” standing, we notice that in Brown, supra, the Court held: “[T]here is no standing to contest a search and seizure where, as here, the defendants: (a) were not on the premises at the time of the contested search and seizure; (b) had no proprietary or possessory interest in the premises; and (c) were not charged with an offense that includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure.” Our discussion above clearly demonstrates that appellant has no “automatic” standing under the stated test. Finding no standing to challenge the search of the stolen automobile at the police station, appellant’s first two grounds of error are overruled. By his final ground of error, appellant contests the State’s proof of consent to search the house from which incriminating evidence was seized. Proof was made by testimony of the officer to whom consent was given and by introduction of an executed consent to search form signed by Vee Tee Ward, who lived at the house and paid the rent. It is appellant’s contention that the use of this hearsay evidence was improper proof of consent. We find appellant’s position to be without merit in light of the Supreme Court’s decision in United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), citing Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879. Rules of evidence applicable to proceedings to determine probable cause are not the same as those governing the criminal trial itself. The evidence of consent was both admissible and sufficient. Finding no reversible error, the judgment is affirmed. . In Texas,. however, the admissibility of certain evidence is to be submitted to the jury. Article 38.23, Vernon’s Ann.C.O.P. In such cases, if there be evidence relating to such issue which would be admissible on the issue of probable cause, but not admissible generally before the jury, upon proper request consideration of such evidence should be limited to the issue for which it is admissible. Of course, if the defendant does not contest the issue of probable cause, or waives submission to the jury of any issue under Article 38.23, supra, then he may thereby have any evidence which would be admissible solely upon the question of an Article 38.23 issue excluded, since by removing the issue from the jury, the evidence upon such issue is inadmissible on the criminal trial itself.

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Samuel Dewey YATES, Appellant, v. The STATE of Texas, Appellee. No. 48163. Court of Criminal Appeals of Texas. May 22, 1974. Rehearing Denied June 12, 1974. W. L. Burke, Jr., Abilene, for appellant. Ed Paynter, Dist. Atty. and Patricia Elliott, Asst. Dist. Atty., Abilene, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION DOUGLAS, Judge. This is an appeal from a conviction for murder. The jury assessed the punishment at life. A previous conviction for this homicide was before this Court in Yates v. State, Tex.Cr.App., 489 S.W.2d 620. The sufficiency of the evidence is not questioned. The proof shows that the appellant shot his wife some six times with a pistol and killed her. This was after an argument arose about the 17-year-old daughter of the deceased, Carol, coming in late after a date. During the discussion, the deceased became angry when the appellant undressed in front of Carol and the argument became heated. All of the evidence set out in the first opinion will not be repeated. The appellant testified that he shot the deceased after she said, “I’ll kill you,” and after she placed her hand on top of a loaded gun in a drawer of a chest of drawers. His confession in which he admitted the shooting was introduced. The court submitted a charge on self-defense. First, appellant contends that the court erred in admitting into evidence tape recordings of a conversation that he had with the deceased when they were separated while divorce proceedings were pending. These were offered after appellant had testified, apparently for impeachment. His contention that the proper predicate was not laid is overruled. He testified that he personally taped this conversation with his wife and that the voices were theirs. He contends that the tapes of the conversation were not properly offered or admitted into evidence. When the tapes were played before the jury they were admitted in evidence. See Erwin v. State, 171 Tex.Cr.R. 323, 350 S.W.2d 199, and Richardson v. State, Tex.Cr.App., 475 S.W.2d 932. We hold that they are admissible. The discussion, as recorded upon the tapes, was some ten months prior to the homicide and was about their previous marital difficulties. Appellant contends that the part of Article 1257a, Vernon’s Ann.P.C., pertaining to the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the homicide, does not apply to something ten months earlier because they were too remote. In Baker v. State, Tex.Cr.App., 368 S.W.2d 627, the son of the accused was permitted to testify that the accused struck his wife some six years prior to the homicide over the objection that this was too remote. This was held admissible because it showed their previous relationship under Article 1257a. The Court also noted that it was shown that the conduct continued. The discussion and argument in the present case started over Carol’s coming home late. The appellant’s testimony showed a continuation of their arguments especially over disciplinary matters concerning her and the children. Appellant cites Brown v. State, 56 Tex.Cr.R. 389, 120 S.W. 444; Hamilton v. State, 83 Tex.Cr.R. 90, 201 S.W. 1009, and McAnear v. State, 43 Tex.Cr.R. 518, 67 S.W. 117, on the question of remoteness. These were decided before Article 1257a, supra, was enacted. The Brown case supports his position where there had been a complete reconciliation. In 4 Branch’s Ann.P.C.2d, Section 2224, page 577, it is written: “There is a conflict of authority on the question as to whether evidence of threats is admissible where a complete reconciliation has been shown. Powdrill v. State, 69 Tex.Cr.R. 340, 155 S.W. 231 (holding in favor of admissibility of the evidence). “Contra: Brown v. State, 56 Tex.Cr.R. 389, 120 S.W. 444; Hamilton v. State, 83 Tex.Cr.R. 90, 201 S.W. 1009. Under article 1257a, of the Penal Code, the universal and accepted notions as to what constitutes relevancy have been changed, and in order to show the state of mind and relationship of the parties, evidence of threats should be admissible just as any other fact in the case; and the case of Powdrill v. State, supra, is believed to state the law and the rule which now governs. Upton v. State, Tex.Cr.App., 20 S.W.2d 794; Duke v. State, 147 Tex.Cr.R. 533, 182 S.W.2d 808.” In Duke v. State, supra, it was stated that reconciliation was lightly regarded and a controversial subject in this State. Powdrill v. State, 69 Tex.Cr.R. 340, 155 S.W. 231, held that evidences of former quarrels are admissible into evidence where objections of remoteness and reconciliation were made. There the Court cited Leech v. State, 63 Tex.Cr.R. 339, 139 S.W. 1147, 1152, which held that threats are admissible in homicide cases to show malice and motive. It should be noted that this is not a divorce case, but a murder case. We hold that remoteness does not apply and that reconciliation, if such be shown, does not apply, and evidence of prior difficulties was admissible under the general rule of evidence even before the adoption of Article 1257a, supra. See Smith v. State, Tex.Cr.App., 502 S.W.2d 814. In Brooks v. State, Tex.Cr.App., 475 S.W.2d 268, this Court noted that the Legislature enacted the statute to cover the general rules of evidence already in existence. Next, appellant contends that reversible error was committed at the punishment stage of the trial during the argument of the district attorney when the following occurred: “Sam (Appellant) is sitting over there with his hand over his eyes and crying, with his new wedding ring on, or whatever that is. “Mr. Burke (Appellant’s counsel): Pardon me, Your Honor, we object to that allegation. He’s not married and he knows that. That’s the wedding ring of Mickey Yates when they were married. “Mr. Paynter (District Attorney): Well, whatever it is. “Mr. Burke: We object to that, and ask that the jury be instructed to disregard the comment. “The Court: All right. I will ask the jury to disregard the comment.” A motion for mistrial was overruled. The argument of the prosecutor should not have been made. In view of the answer of appellant’s counsel and the instruction of the court for the jury not to consider the argument, we hold that reversible error is not shown. Next, complaint is made that the court erred in admitting into evidence State’s Exhibit No. 2, a sketch of the trailer house where the homicide occurred, because it was not drawn to scale. An officer who went to the trailer house shortly after the homicide testified that he made the sketch but not to scale. A second exhibit, apparently drawn to scale, was substituted for the original exhibit. Several witnesses testified, without objection, that it was accurate. Even though a drawing is not exact in every detail, an objection goes to its weight rather than its admissibility. Creel v. State, Tex.Cr.App., 493 S.W.2d 814. There is no showing that the sketch, before it was replaced, was inaccurate so as to be harmful. No error is shown. Next, the appellant complains that reversible error was committed because the jury was made aware that divorce proceedings had been previously pending between him and his wife. He relies, in part, on the reversal of his prior case by this Court because the divorce petition, supplemental divorce petition and two restraining orders against him were introduced into evidence over proper objections. We note at the outset that appellant’s prior case was reversed because the hearsay statements contained in the papers, which were introduced, were before the jury. Yates v. State, Tex.Cr.App., 489 S.W.2d 620, 621. This Court also reversed the Brooks case because the trial court admitted into evidence the hearsay contained in the temporary restraining order. In Powdrill, supra, evidence of the wife’s divorce and the action of the wife and son in making an affidavit charging him with a violation of the injunction entered in the divorce proceeding in an effort to have him punished was admitted to show motive. Powdrill’s first trial, found at 62 Tex.Cr.R. 442, 138 S.W. 114, was reversed because the statements contained in the divorce petition were also introduced. The Court held that the allegation of the grounds for divorce and the allegation of the grounds for the injunction, wherein the defendant was charged with cruel treatment and other wrongful acts, were inadmissible. In Powdrill v. State, 69 Tex.Cr.R. 340, 155 S.W. 231, the deceased was aiding the wife of the defendant in her divorce suit, and this Court held that, where such facts show motive for the homicide, evidence that such a suit had been instituted and an injunction obtained was admissible, and that an affidavit charging the defendant with violating the injunction could be introduced. This Court has held that while the actual allegations contained in the court papers themselves may not be admissible, the fact that a divorce had been instituted would be admissible tending to show feelings and relations of the parties. Clowers v. State, 171 S.W.2d 143. Further, the cases relied on by the appellant in support of his contention, Yates v. State, supra; Brooks v. State, supra; Acker v. State, Tex.Cr.App., 421 S.W.2d 398; and Hoyle v. State, 153 Tex.Cr.R. 548, 223 S.W.2d 231, were reversed by this Court because the pleadings and hearsay statements contained in the pleadings and other related court papers from other lawsuits were admitted into evidence over proper objection. In the instant case, the papers themselves were not introduced, but the oral testimony concerning the marital difficulties between the appellant and his wife was first elicited by appellant’s counsel on cross-examination of a State’s witness, Dr. Alan L. Staley. It was not until the prosecutor attempted to develop this testimony on re-direct did appellant’s counsel enter an objection. And then only to attempt to show that any problems that existed had been reconciled. From this record, their problems had not been reconciled. Dr. Staley testified that in his capacity as marriage counselor one of the main problems existing between the parties was the discipline of the children and in particular the oldest girl, Carol; the same problem which indirectly, if not directly, gave rise to appellant shooting his wife. Also, the appellant testified without objection that his wife had filed for divorce and about his attempt to reconcile their differences. He further stated that during the pendency of the divorce he had been admonished not to go around his wife so he shot arrows into the trailer house as a way of delivering notes to her. When one testifies to the same thing about which he complains, he has made the error, if any, harmless. No error is shown. Lastly, the contention that the court overruled appellant’s motion to permit him to electronically record the testimony of the witness during the trial is not before us for review, because there is no showing that the motion was presented to the court. No reversible error has been shown. The judgment is affirmed. . The Court Reporter is commended for the excellent manner in which he has prepared the transcription of his notes or the statement of facts. The record is well indexed with the names of the witnesses and the pages of the record noted. A part of the index to exhibits is as follows: “Exhibits “State’s #30 Marked, 727 Offered, 728 Received 729 Shown 730-733 “Defendant’s #2 801 802 802 804” Each page of the record shows the name of the witness and whether it is direct, cross, redirect or recross-examination. The exhibits are included in the record where they have been admitted. The Court appreciates the well prepared and organized 1452 page record. It is time saving and is most beneficial.

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Willis Van HOY, Appellant, v. The STATE of Texas, Appellee. No. 48475. Court of Criminal Appeals of Texas. May 22, 1974. W. C. Wiebusch, Houston, for appellant. Carol S. Vance, Dist. Atty., James G. Brough and Ken Levi, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION ODOM, Judge. Upon trial before the court, appellant was convicted of failure to surrender certificate of title (Art. 1436-2, Vernon’s Ann.P.C.), and punishment was assessed at a $100 fine and sixty days in jail, probated for a period of one year. Appellant challenges the sufficiency of the evidence, contending that appellant never had the alleged certificate of title. The evidence is clear and uncontroverted that appellant never had the certificate of title which the Department demanded he surrender. Peggy Nixon testified that she had possession of the certificate of title in question and the subject vehicle in 1971, that she was in a wreck which totally demolished the car on December 31, 1971, and that because she considered it not worth the expense of repair she never saw the car again after it was towed away by a wrecker. She also testified that she thereafter destroyed the certificate of title, had never been asked to surrender the title to anyone, and had never given it to appellant or anyone else. Article 1436-2, supra (now Art. 6687-2, Vernon’s Ann.Civ.St.), provides: “Any person, association of persons, corporate or other, who customarily engage in the business of obtaining motor vehicles for scrap disposal or resale of parts therefrom or any other form of salvage, shall immediately remove any unexpired license plates from such motor vehicle and place the same under lock and key. An inventory list of such plates showing the license number and the make and motor number of the motor vehicle from which such plates were removed shall be maintained on forms to be furnished by the State Highway Department. Upon demand the license plates and inventory lists shall be surrendered to the State Highway Department for cancellation. It is further provided that all Certificates of Title covering such motor vehicles obtained for scrap disposal, resale of parts or any other form of salvage shall, upon demand, be surrendered to the State Highway Department for cancellation. It shall thereafter be the duty of the State Highway Department to furnish a signed receipt for the surrendered license plates and Certificates of Title. Any person violating any provision of this Act shall be deemed guilty of a misdemeanor and upon conviction shall be fined not less than One Hundred Dollars ($100) nor more than One Thousand ($1,000), or by confinement in the county jail not less than ten (10) days nor more than one (1) year, or by both such fine and confinement.” It is clear that the only duty with respect to certificates of title, in contrast to unexpired license plates, that is placed by this article upon persons who “customarily engage in the business of obtaining motor vehicles for scrap disposal,” etc., is that they be surrendered upon demand. A greater duty is imposed with respect to unexpired license plates, to-wit: that they be immediately removed, stored under lock and key, listed on an inventory, and surrendered upon demand. Even with respect to license plates, Article 1436-2, supra, only requires the named acts be taken with respect to “any unexpired license plates from such motor vehicle.” Clearly if the vehicle were received with no unexpired license plates, no offense would be committed if no plates were surrendered upon demand. Likewise, where, as here, the person of whom surrender is demanded never had the certificate of title demanded, no offense is shown, and the judgment must be reversed for insufficiency of the evidence. Were it an offense for appellant not to have secured the certificate at the time he obtained the vehicle (see Art. 1436-1, Sec. 52, V.A.P.C., repealed Acts 1967, 60th Leg., p. 1035, ch. 454), perhaps the evidence would have supported such a conviction. Had appellant been the owner last named in the certificate, a failure to surrender the certificate even in the face of no demand would constitute an offense under Article 1436-1, Sec. 37(a), V.A.P.C. (now Art. 6687-1, Sec. 37(a), V.A.C.S.). But neither such offense was here charged. Accordingly, the judgment is reversed and the cause remanded.

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Melvin DeWayne HAWKINS, Appellant, v. The STATE of Texas, Appellee. Nos. 47973, 47974. Court of Criminal Appeals of Texas. March 27, 1974. Rehearing Denied May 29, 1974. Tom A. Boardman, Dallas, for appellant. Henry Wade, Dist. Atty., Robert T. Bas-kett, Asst. Dist. Atty., Dallas, Jim D. Voll-ers, State’s Atty., and Buddy Stevens, Asst. State’s Atty., Austin, for the State. OPINION BROWN, Commissioner. Appellant was convicted in a joint trial with three codefendants in our cause number 47,973 (trial court number C-72-602JL) of robbery, and in our cause number 47,974 (trial court number C-72-603-JL) of rape. The jury assessed punishment in each cause at confinement in the Texas Department of Corrections for one hundred (100) years. There is no challenge to the sufficiency of the evidence. The record reflects that at approximately 10:30 p. m. on the evening of December 26, 1971, the complaining witnesses, a young man and a young woman, were parked in an uninhabited area of Dallas County when their attention was directed to a 1955 yellow Chevrolet experiencing mechanical difficulty. The young man, on request from the occupants of the Chevrolet, repaired the auto and it left the scene. Shortly thereafter, the Chevrolet returned and the six occupants, the appellant being one, robbed the young man and raped the young woman. In his first two grounds of error appellant contends the trial court erred in failing to suppress the complaining witnesses’ in-court identification of him because the pretrial identification procedures in which the complainants participated were impermissibly suggestive and gave rise to a substantial likelihood of misidenti-fication. Prior to trial the court conducted a hearing in the jury’s absence to determine the admissibility of the identification testimony of the complainants as recommended in Martinez v. State, 437 S.W.2d 842 (Tex.Cr.App.1969). At the hearing the complainants testified they recognized the appellant in court because they remembered him from the night of the offense. Each testified that each was in the presence of the appellant for a period of time from one hour to one hour and a half. During that time they had ample opportunity to observe the appellant in sufficient light. The record reflects no lineup participation by appellant for viewing by complainants, nor does the record show participation by this appellant in an examining trial of a co-defendant at which these complainants testified. Following the night of the offense, there is no evidence in this record that the complainants ever confronted the appellant personally prior to the day of trial. There is no evidence of any discrepancy between a description given by the complainants and appellant’s actual description, nor is there any evidence of an identification of another rather than this appellant, nor is there evidence of a failure of the complainants to identify this appellant on a prior occasion. We agree with the trial court in its ruling following the hearing: “That any identification made of the defendant by D. T. or J. H. was not tainted by any lineup or showing of any pictures by any police officer or their agents. That said identification was made solely from seeing the defendant at the time of the said assault and from no other source, and the Court so holds.” See Ward v. State, 505 S.W.2d 832 (Tex.Cr.App.1974); Locke v. State, Tex.Cr.App., 453 S.W.2d 484. The appellant’s first two grounds of error are overruled. Next the appellant contends the trial court erred in excluding evidence as to the prior unchaste character of the prosecu-trix. The appellant' did not testify. Two of the six indicted in the causes testified that neither of them heard the prosecutrix cry out or saw her offer any resistance. Each of these witnesses denied having sexual relations with the young woman; but testified the other five did have such relations. We hold that such evidence does not raise the issue of consent. The evidence shows the rape was accomplished by six males overpowering a young woman. In light of all the circumstances the mere fact that the two co-indictees did not see resistance or hear any outcry is no evidence the prosecutrix consented to the act of intercourse by the appellant. Therefore, any evidence of the unchastity of the prosecutrix was inadmissible. Jackson v. State, 470 S.W.2d 201 (Tex.Cr.App.1971); Roper v. State, 375 S.W.2d 454 (Tex.Cr.App.1964). The ground of error is overruled. The fourth ground of error challenges the refusal of the court to grant appellant’s motion for severance. He contends his prior convictions would prejudice him in a trial with co-defendants who had no prior criminal record. However, at the hearing on the motion for severance no evidence of the prior convictions was offered. This ground of error was answered by this Court in Robinson v. State, 449 S.W.2d 239 (Tex.Cr.App.1969): “Even if it can be argued that appellant’s motion was timely presented, no evidence was offered in support thereof as expressly required by Article 36.09, supra, and for this reason alone no error is presented.” The ground of error is overruled. We have carefully considered all of appellant’s grounds of error and overrule each. The judgments of the trial court are affirmed. Opinion approved by the Court. ON APPELLANT’S MOTION FOR REHEARING GREEN, Commissioner. Appellant seeks our further consideration of certain of his grounds of error. The appellant says the pretrial photographic displays made by the police to the prosecutrix tainted her in-court identification. The appellant describes the identifications as follows: “The prosecutrix was subjected to four picture spreads. The first occurred two weeks after the offense . . . There were two pictures and she identified Paul DeGrate. There were three other picture spreads, each consisting of six pictures of the six Defendants She knew that the pictures were of the six Defendants in this cause . The prosecutrix could identify only three of the six, one of which was the Appellant . . .” Appellant relies on Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) and Coleman v. State, 505 S.W.2d 878 (Tex.Cr.App.1974). In Simmons the Supreme Court said: “. . . convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification. This standard accords with our resolution of a similar issue in Stovall v. Denno, 388 U.S. 293, 301-302, 87 S.Ct. 1967, 1972-1973, 18 L.Ed.2d 1199, and with decisions of other courts on the question of identification by photograph.” In Coleman the photographs shown the witness were of one suspect only; namely, the defendant, and the witness testified that the officer at the time told her “That is the boy.” In the case before us the prose-cutrix and her companion were shown six pictures of different suspects and one of the three each complainant identified was appellant. Moreover, the witness in Coleman stated she could not say she would have been able to identify the defendant without having seen the photograph. There is no indication in the record before us that the complainants were ever doubtful in their identification of appellant. As stated in the original opinion, both complainants positively identified appellant in court from their observation of him at the time of the offenses. They stated the light was sufficient for them to observe his features. We hold, as we did in our original opinion, that the identification procedure was not impermissibly suggestive to the complainants as to which picture they should identify, nor did it result in a substantial likelihood of irreparable misidentification. Ward v. State, Tex.Cr.App., 505 S.W.2d 832; Henriksen v. State, Tex.Cr.App., 500 S.W.2d 491; Benson v. State, Tex.Cr.App., 496 S.W.2d 68. Furthermore, error, if any, in the photographic identification process was rendered harmless in light of the unchallenged testimony. of the State’s witness Lonnie Green and one of the co-defendants, Victor DeGrate, each of whom testified that he was present with appellant and that appellant was one of the men who participated in the robbery and the rapes. Langham v. State, Tex.Cr.App., 473 S.W. 2d 515; Mason v. State, Tex.Cr.App., 472 S.W.2d 787; Smith v. State, Tex.Cr.App., 450 S.W.2d 618. Appellant also points to his contention on appeal that a portion of the prosecutor’s argument at the punishment stage was outside of the record and highly prejudicial. He complains because the original opinion overruled this contention without any discussion of his ground of error. During his argument, the prosecutor mentioned that appellant was not eligible for consideration of probation by the jury, and that he did not prove his eligibility. He stated further: “You heard the other three Defendants get on the stand and tell you they had never been convicted of a felony. They do this in order to prove that they are fit subj ects for probation.” Appellant’s objection was: “Judge, I’m going to object to this, his going into forbidden grounds, and he knows it.” The court overruled this pbjection, whereupon the prosecutor resumed his argument as follows: “You will not — and I don’t believe there is a probation form in the verdict form for Hawkins, so you’re not to even — ” Appellant again objected on the ground that “this is illegal — ” whereupon the court sustained the objection and instructed the jury “to disregard all of this” but overruled a motion for a mistrial. The sole contention of appellant in his original brief and in his motion for rehearing as to this argument is that “the innuendo argument as to the prior convictions of appellant was wholly outside of the record and highly prejudicial and inflammatory.” This was a joint trial of four defendants. The other three defendants had each filed a motion for probation, and had each testified at the punishment stage so as to qualify for consideration of probation. The judge had instructed the jury on the requirements for probation. Appellant had not filed any such motion and had not testified. While it may be argued that the prosecutor’s statements may have been calculated to lead the jury to infer that appellant had been previously convicted of a felony, the statements, under the circumstances, do not reflect reversible error. They merely told the jury what it already knew from the evidence and the judge’s charge. The trial court’s instruction to the jury to disregard the prosecutor’s comments was sufficient to protect appellant’s rights. See Barrientez v. State, Tex.Cr.App., 487 S.W.2d 97; Terry v. State, Tex.Cr.App., 481 S.W.2d 870. The motion for rehearing is overruled. Opinion approved by the Court.

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Dewey Carl NEWTON, Appellant, v. The STATE of Texas, Appellee. No. 48196. Court of Criminal Appeals of Texas. May 22, 1974. Britt Thurman, Abilene, for appellant. Ed Paynter, Dist. Atty. & Billy John Edwards, Asst. Dist. Atty., Abilene, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION ODOM, Judge. Appellant was convicted of felony theft; punishment, enhanced under Article 63, Vernon’s Ann.P.C., is life. In his first four grounds of error appellant raises various contentions concerning a sanity hearing held June 20, 1973, challenging the sufficiency of the evidence therein on the issue of guilt, challenging the charge on insanity at the time of the offense, and contending the sanity hearing constituted prior jeopardy barring his subsequent trial on the merits. Before discussing these contentions we will outline the order of proceedings in this unusual case. On May 8, 1973, appellant filed his “Motion for Sanity Examination,” alleging (1) present insanity “under the legal definition of Insanity,” (2) insanity at the time of the alleged offense, and (3) inability to assist counsel in preparing a defense; and requesting that a competent psychiatrist be appointed by the court to examine him. This is not a demand for trial of the issue of present insanity in advance of trial on the merits as contemplated by Article 46.-02, Sec. 1, Vernon’s Ann.C.C.P., but rather, appears to be a motion that the court exercise its discretion under Article 46.02, Sec. 2(f)(1), supra. By order entered May 8, 1973, the court acted upon appellant’s motion, ordering that appellant be delivered to the Big Spring State Hospital for examination to determine his sanity at the time of the alleged offense and at the time of the examination, and if he he found insane at either such time, to determine whether hospitalization be then required. It was further ordered: “At the completion of such examination the psychiatrist or psychiatrists who conducted same shall make a written report of their findings to this Court.” No such written report appears in the record before us and in fact no further instruments of any kind after May 8 appear until the instruments relating to the sanity hearing conducted June 20, 1973. The first docket entry following the notation of the May 8, 1973, order for a mental examination, is that of June 20, 1973, noting: “Hearing on insanity motion both as to present sanity and to sanity at time of offense. Jury selected, testimony heard, and charge prepared. Arguments had and Jury retired to consider its verdict. Jury returned its verdict finding the defendant sane at the time of the commission and at the present time.” The record also contains jury lists for the June 20 hearing, the court’s charge, appellant’s objections thereto, and the verdict. Also contained is the question and answer statement of facts of testimony presented at the hearing, which reflects that the jury was sworn following which the indictment was read and appellant’s plea of not guilty by reason of insanity was received. The authority under which the June 20 hearing was held is not clear from the record. No order stating that the hearing was being held upon appellant’s motion pursuant to Article 46.02, Sec. 1, supra, or upon motion under Article 46.02, Sec. 2, is to be found in the record. Neither is there any order in the record, nor any facts, such as would suggest a sua sponte finding that the issue of appellant’s competency to stand trial had arisen in the mind of the court. Cf. Carpenter v. State, Tex.Cr.App., 507 S.W.2d 794 (1974); Noble v. State, Tex.Cr.App., 505 S.W.2d 543; Perryman v. State, Tex.Cr.App., 494 S.W.2d 542. The docket entry, however, states the hearing was held “on insanity motion” suggesting that the court was proceeding upon appellant’s May 8 motion for appointment of a psychiatrist as though it were a motion under Article 46.02, Sec. 1, for a pretrial sanity hearing. The conclusion that said motion was the basis for conducting the June 20 hearing is further supported by the fact that appellant read the May 8 motion to the jury at the outset of the hearing as his pleading. Turning now to appellant’s first three grounds of error, no appeal lies from a preliminary trial on the issue of insanity regarding procedural matters. E. g., Taylor v. State, Tex.Cr.App., 420 S.W.2d 601; Bush v. State, 172 Tex.Cr.R. 54, 353 S.2d 855. On the other hand, appellant’s claim of double jeopardy raises a matter of constitutional magnitude and may be considered by this court. See, e. g., Carpenter; Noble; Perryman, all supra, wherein constitutional issues concerning pre-trial sanity proceedings were considered by this court. In his fourth ground of error, appellant contends that jeopardy attached at the June 20 hearing, and that therefore the trial on June 25 constituted an unconstitutional placing of him twice in jeopardy for the same offense. This Court has held: “A person is in legal jeopardy when he is put upon trial in a court of competent jurisdiction upon a pleading sufficient in form and substance to sustain a conviction, when a jury has been charged with his deliverance and when the indictment or information has been read to the jury, and the plea of the accused heard.” Rameriz v. State, 171 Tex.Cr.R. 507, 352 S.W.2d 131. In State v. Olsen, Tex., 360 S.W.2d 398, the Supreme Court of Texas, in a proceeding brought for writ of mandamus to compel the judge of the 109th District Court to vacate a judgment and proceed to trial in a criminal cause wherein a previous judgment of insane at the commission of the offense had been entered upon a jury’s verdict received in a pre-trial hearing on the question of insanity at the time of the offense, stated: “The District Court of the 109th Judicial District undoubtedly had jurisdiction of the case of the State of Texas vs. John Mack Herring pending on its criminal docket. It also had potential jurisdiction under Article 932b to try, in a preliminary trial, the issue of the defendant’s insanity at the time of the commission of the offense charged in the indictment. But jurisdiction thus conceded does not foreclose the question before us. Jurisdiction of a court must be legally invoked; and when not legally invoked, the power to act is as absent as if it did not exist.” After discussion of the statute and prior decisions, that court concluded: • “We hold that jurisdiction of a court to try issues of insanity before a trial of the main charge can be invoked by or on behalf of a defendant only by a motion or request for a trial of the issue of present insanity. It follows that jurisdiction of the 109th District Court to order and hold a preliminary trial on the issues of insanity in State of Texas vs. John Mack Herring was never legally invoked and that the judgment rendered by it is therefore void.” 360 S.W.2d, at 402. At the time of that decision, Article 932b, V.A.C.C.P., now Article 46.02, V.A.C.C.P., provided in part: “In any case where the question of the insanity of a defendant is raised and that issue is tried alone before the main charge or is tried in connection with the main charge, the jury shall state in their verdict whether the defendant was sane or insane at the time the offense is alleged to have been committed and whether the defendant is sane or insane at the time of the trial.” The court in Olsen, supra, noted that prior to enactment of Article 932a, V.A.C.C.P., in 1937, “there was ... no legal procedure, statutory or decisional, by which a trial court could try the issue of insanity at the time of the act in advance of a trial on the main charge.” The court later continued: “But in that statute [Art. 932a], as in Article 932b which repealed and displaced Article 932a, the Legislature did not purport to state when or under what circumstances a preliminary trial was to be had, or how jurisdiction to order it was invoked. We must assume that both Article 932a and Article 932b were enacted by the Legislature with full knowledge that under court decisions jurisdiction of a trial court to grant a preliminary trial on the issue of insanity could be invoked by or on behalf of a defendant only by a motion or request therefor based upon allegations that because of present insanity the defendant was unable to prepare a rational defense to the main charge.” Thus, the Supreme Court, upon reading the prior court decisions to find the rule for invoking the jurisdiction of the court for a preliminary sanity hearing, in conjunction with reading the statute then in force to determine what issues must be submitted at such a hearing, reached the conclusion that insanity at the time of the act could be determined at a pre-trial sanity hearing if jurisdiction were first invoked by proper request and allegations of present insanity. The defendant in Olsen having only alleged insanity at the time of the offense, jurisdiction had not been invoked, and the judgment based upon the pre-trial hearing was held void. The statute has been changed since Olsen, supra, and now, found at Article 46.02, V.A.C.C.P., provides the procedure for invoking jurisdiction for a trial of the issue of present insanity in advance of the trial on the merits (Art. 46.02, Sec. I). Furthermore, the present statute no longer provides for submission of the issue of insanity at the time of the act at any pretrial sanity hearing. Thus we find no jurisdiction for pre-trial determination of insanity at the time of the offense. In the instant case, appellant’s claim of double jeopardy rests entirely upon the theory that his plea and trial upon the issue of insanity at the time of the offense at his pre-trial sanity hearing placed him in jeopardy. The contention is without merit for two reasons. First, jurisdiction of the court was never properly invoked. Although it appears the trial court proceeded upon the supposition that the motion for appointment of a psychiatrist required a hearing under Article 46.-02, Sec. 1, the record contains no written application such as required under said section to invoke jurisdiction. The proceedings were therefore void. Second, even if jurisdiction had been properly invoked under Article 46.02, Sec. 1, said jurisdiction would only have extended to determination of the issue of competency to stand trial. The court was without jurisdiction to determine the issue of insanity as a defense in advance of the trial on the merits. Jurisdiction not having been properly invoked, no jeopardy attached. Appellant’s fourth ground of error is without merit. By his fifth ground of error appellant complains of the overruling of his request for a charge on circumstantial evidence. Appellant and another were discovered immediately outside the fence of the Taylor Electric Cooperative building next to a pickup in which the electrical equipment stolen from the cooperative was loaded. When police officers approached, appellant ran and jumped into the driver’s seat in the pickup as his companion got in the passenger side, and they attempted to flee in the truck. Other electrical equipment like that, stolen was near the truck. Indentions were found in the ground, compatible with the equipment having been thrown over the fence. Some of the equipment was broken and leaking oil, which oil was also discovered in the back of the truck and on appellant’s clothing. Appellant gave no explanation to the police of his possession of recently stolen electrical equipment. There was testimony identifying the stolen equipment as having belonged to the company and having been taken without consent. Though there was no direct evidence of the actual taking, the facts proven were in such close juxtaposition to the actual taking as to render a charge on circumstantial evidence unnecessary. Appellant was discovered while still in the act of the crime, before the stolen equipment had been removed from the scene. The fact that it had already been taken off the victim’s premises did not, in light of the facts in this case, make a charge on circumstantial evidence necessary. Cf. Riggins v. State, Tex.Cr.App., 468 S.W.2d 841, and cases discussed therein. Appellant’s final ground of error raises another objection to the charge. The record does not reflect that said objection was ever brought to the attention of the trial judge. Nothing is presented for review. Fair v. State, Tex.Cr.App., 465 S.W.2d 753. Finding no reversible error, the judgment is affirmed. . Of course, whenever reasonable doubt of the competency of a defendant to stand trial arises in the mind of the trial court, an independent duty to pursue the matter is placed upon the trial court, irrespective of the statutory procedure. See Carpenter v. State, supra; Townsend v. State, Tex.Cr.App., 427 S.W.2d 55 at 62. No such duty arose in the-instant case. . Article 46.02, Sec. 2(b)(3) applies to procedure at trial.

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Harold Dean BLOUNT, Appellant, v. The STATE of Texas, Appellee. No. 48439. Court of Criminal Appeals of Texas. May 29, 1974. Victor R. Blaine, Houston, for appellant. Carol S. Vance, Dist. Atty., James C. Brough and Terry Collins, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION DAVIS, Commissioner. Appeal is taken from a conviction for robbery by assault. Punishment was assessed by the jury at eleven years. Appellant contends the court erred in overruling his objection to the prosecutor’s argument to the jury at the punishment stage of the trial. Appellant made motion for probation and in support thereof testified at the punishment stage of the trial that he had never been convicted of a felony in this state or any other state. See Article 42.12, Section 3a, Vernon’s Ann.C.C.P. The court instructed the jury that they might grant appellant probation if they assessed punishment not to exceed ten years and further found that appellant had never before been convicted of a felony in this state or any other state. The record reflects the following occurred during the prosecutor’s argument: “. . . Now, you can go back in the jury room and you can assess any term of punishment you want for this man and as long as the term of punishment itself is not more than ten years then the judge in his wisdom knowing all the facts of this case can grant probation to this man. You don’t have to say anything at all about probation in your verdict. If the judge in his wisdom thinks he would be a likely candidate for probation he can give probation. “MR. HEANEY: Your Honor, I object to that, under the rules that it is within the jury’s purvey to grant probation and he doesn’t have to make reference to whether you can or not, Your Honor. “THE COURT: Well, that’s overruled.” The prosecutor, in effect, told the jurors that they need not concern themselves with granting probation since the judge could grant same if he felt that appellant were entitled to probation. In Weige v. State, 81 Tex.Cr.R. 476, 196 S.W. 524, it was held that prosecutor’s argument urging conviction (where defense was insanity) upon theory that accused’s insanity could later be inquired into required reversal. See Crow v. State, 33 Tex.Cr.R. 264, 26 S.W. 209; Jenkins v. State, 49 Tex.Cr.R. 457, 93 S.W. 726; Patterson v. State, Tex.Cr.App., 60 S.W. 557. See also 3 A.L.R.3rd 1448. In Oakley v. State, 125 Tex.Cr.R. 258, 68 S.W.2d 204, argument was held to be error where the prosecutor argued if the jury convicted the defendant and he was insane they could get a writ of habeas corpus and get him out of the penitentiary. The court, in condemning such argument, said it “was an appeal to the jury to disregard their responsibility of determining whether he was insane at the time of the commission of the offense.” See Hernandez v. State, Tex.Cr.App., 366 S.W.2d 575. In Smith v. State, Tex.Cr.App., 474 S.W.2d 486, by bill of exception, it was shown that the court answered, “Yes, but this should not be considered ” (Emphasis supplied) to the jury’s question, “In event that we the jury assess 10 or less years without a probation recommendation is it within the legal power of the court to grant probation?” This Court said the jury’s question should have been answered in a manner similar to the following: “The court under the law is not permitted to answer the question which you have presented. Please consider only the instructions which have already been given and continue with your deliberations.” Appellant had a right under Article 42.-12, Section 3a, V.A.C.C.P., to have the jury consider his motion for probation in the event the jury assessed punishment which did not exceed ten years. The prosecutor sought to deny appellant of this right by telling the jury that they didn’t have to say anything about probation and that the judge in his wisdom could grant probation. As in Oakley v. State, supra, the prosecutor was appealing to the jury to disregard this responsibility under the court’s charge. We find such argument to be improper, harmful and prejudicial to the rights of appellant. For the error discussed, the judgment is reversed and the cause remanded. Opinion Approved by the Court. . This Court did not reach the question of whether the court’s instruction required reversal in Smith v. State, supra, since the bill of exception failed to show that appellant did not waive the reading of the jury’s note and the court’s answer. In holding that reversal was not required, this court pointed out that such holding was not to be taken as approving the procedure followed.

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Helen PRINE, Appellant, v. The STATE of Texas, Appellee. No. 48336. Court of Criminal Appeals of Texas. May 29, 1974. Mike V. Gonsalez, Del Rio, for appellant. John F. Pettit, Dist. Atty., Del Rio, and Jim D. Vollers, State’s Atty., Austin, for the State. OPINION ODOM, Judge. Appellant was convicted as accessory to murder; punishment is two years. At the outset appellant challenges the sufficiency of the evidence, contending no offense is shown, and further, that the testimony of the accomplice witness Timothy Don Littrell is not corroborated. Article 77, Vernon’s Ann.P.C., provides in part: “An accessory is one who, knowing that an offense has been committed, conceals the offender, or gives him any other aid in order that he may evade an arrest or trial or the execution of his sentence.” It is clear from the record that Littrell committed the offense of murder by killing appellant’s young child, and that appellant knew of the crime when, at the hospital, she was told the child was dead. The crucial question is whether appellant made herself an accessory by some act or statement after the murder and her knowledge of the murder. Although it is true that the fact that one “fails to inform on a person he knows to have committed a crime, or conceals his knowledge that a crime has been committed does not make him an accessory,” 16 Tex.Jur.2d 202, Criminal Law, Sec. 83; Curry v. State, Tex.Cr.App., 468 S.W.2d 455; Wade v. State, Tex.Cr.App., 367 S.W.2d 337; it is also true that the giving of false information can be such an act as to render one an accessory. See Judge Morrison’s Commentary, 1 V.A.P.C., p. XIII; Gottschalk v. State, 157 Tex.Cr.R. 276, 248 S.W.2d 473; Littles v. State, 111 Tex.Cr.R. 500, 14 S.W.2d 853; and this is so even if the person to whom the false information is given is not a peace officer, if done for the purpose of aiding the principal to evade arrest or trial, McGoodwin, v. State, 134 Tex.Cr.R. 231, 115 S.W.2d 634. The testimony of the accomplice witness Littrell supplies this element of the offense. He testified that appellant, at the hospital, after she was told the child was dead and therefore knew Littrell had murdered the child, told Dr. Dyke and the hospital commander that the child had fallen. This statement of how the child received the injuries that resulted in its death would be sufficient to render appellant an accessory to the murder. The sole issue with respect to the sufficiency of the evidence is whether the testimony of Littrell is corroborated on this essential point. Art. 38.-14, Vernon’s Ann.C.C.P. The single bit of evidence in the record which could supply the needed corroboration is the following statement contained in State’s Exhibit No. 5, a narrative summary made by Dr. Dyke, one of the persons to whom the statement was allegedly made, on October 26, 1970, the day after the child’s death: “According to the patient’s mother [appellant], her son fell from two steps while playing in front of his home at approximately 2040 hours. About 5 minutes later the patient [deceased] allegedly fell again from a high table and lay motionless—he then reportedly vomited and aspirated.” It will be observed that the corroborative evidence does not state when appellant gave the false information. It might be contended that this would render the evidence insufficient since, as stated earlier, one is made an accessory only by some act committed after knowledge of the offense. We find such argument without merit on these facts because, although failure to disclose a crime or concealing one’s knowledge of a crime is not alone sufficient to render one an accessory, here, even if appellant gave the false information before she knew of the child’s death, and after obtaining knowledge was silent, the silence would not be mere silence, but would be taken as a continued affirmation of the previously given false information, which information was unquestionably given with knowledge of the aggravated assault upon the child, and would render her an accessory to the person regardless of when the statement was made to Dr. Dyke. In view of the shortness of the period of time at the hospital involved, whether the statement rendering appellant an accessory was made before or after the moment death was announced can make no difference in the results here reached: if made after, the statement rendered appellant an accessory to murder; if made before, the silence following death was no mere silence, but a silence filled with false assertions which, by hanging in the air unrenounced following the child’s death, made her an accessory to its murder. The accomplice was corroborated; the evidence, sufficient. Next appellant contends State’s Exhibits 3, 4 and S were improperly admitted into evidence. The State maintains they were admissible under Article 3737e, Vernon’s Ann.Civ.St., in that they were hospital medical records of the deceased child. Said article provides in part: “Section 1. A memorandum or record of an act, event or condition shall, insofar as relevant, be competent evidence of the occurrence of the act or event or the existence of the condition if the judge finds that: “(a) It was made in the regular course of business; “(b) It was the regular course of that business for an employee or representative of such business with personal knowledge of such act, event or condition to make such memorandum or record or to transmit information thereof to be included in such memorandum or record; “(c) It was made at or near the time of the act, event or condition or reasonably soon thereafter. “Sec. 2. The identity and mode of preparation of the memorandum or record in accordance with the provisions of paragraph one (1) may be proved by the testimony of the entrant, custodian or other qualified witness even though he may not have personal knowledge as to the various items or contents of such memorandum or record.” Lt. Griffith testified that he was custodian of the records in question. He further testified as to the satisfaction of each of the requisites to admission in Article 3737e, Sec. 1, supra, with respect to Exhibits 4 and 5. As to Exhibit 3, however, Griffith testified that it was not on a regular form, was not signed or initialed by anyone, and therefore he was unable to testify that it was made in the regular course of business, or that it was the regular course of business for such a note to be made. Accordingly, Exhibits 4 and S were admissible, Roddy v. State, Tex.Cr.App., 494 S.W.2d 174; Williams v. State, Tex.Cr.App., 492 S.W.2d 496; Exhibit 3, however, should have been excluded. Nevertheless, the error was harmless because the information contained in Exhibit 3 is also to be found in Exhibit 5. It will be observed, however, that Article 3737e, supra, only permits introduction of qualified records insofar as relevant. Appellant objected at trial and contends in brief that the exhibits, by containing matter relating to the diagnosis and condition of the deceased, upon admission injected material inflammatory and prejudicial to the appellant and not relevant to any issue in the case. Although portions of the diagnosis and description of the condition of the child may be suggestive of mistreatment at times prior to the murder, and if so should have been excluded as not relevant upon proper objection, other portions of the diagnosis and description of the child were clearly relevant since at issue in the trial of an accessory are both the commission of the principal offense and the accused’s knowledge thereof. Although appellant’s objection pointed specifically to those parts of the exhibits containing the diagnosis and condition, only part of said diagnosis and condition being arguably objectionable, the objection was too general in that its object was at least in part admissible. See 56 Tex.Jur.2d 510, Trial, Sec. 165. No error is shown. Next, appellant contends the trial court erred in not allowing her to call the prosecuting attorney as a witness. When appellant sought to call the prosecuting attorney, the jury was removed and during the discussion outside the presence of the jury, the court stated: “ . . . could we proceed in some other fashion, and I will let the jury go, and you can make a bill on this and I can determine what your proof is, and rule on it a little more intelligently.” From the record it does not appear appellant perfected her bill, and we are not shown what evidence would have been presented. Nothing is presented for review. Appellant’s final contention argues jury misconduct necessitating a new trial. The docket entry for June 29, 1973, reflects : “Def’s Prine’s M/N/T (amended) called for hearing, and personally appeared Def. Prine with attorney, M. V. Gonzales [sic], and came State by D.A., and all announced ready. No witnesses presented — evid. only by exhibits introduced. Upon hearing argument, Def’s amended M/N/T overruled. . . . ” The only exhibits in the record which appear to have been introduced at the hearing are two affidavits of jurors, both apparently introduced by appellant. From the record, although we can determine that no testimony was heard, we are unable to determine whether these two exhibits constituted all the evidence before the trial court upon its hearing of appellant’s motion for new trial, or whether other evidence relating to the contended jury misconduct was also before the court. Accordingly, we are not able to review the trial court’s decision to overrule appellant’s motion for new trial, and do not reach the issue of whether the statements in the affidavits would show jury misconduct. Finding no reversible error, the judgment is affirmed. . Forty minutes after arrival at the emergency room resuscitative attempts upon the child were terminated.

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Erma Lee BRUNER, Appellant, v. The STATE of Texas, Appellee. No. 48527. Court of Criminal Appeals of Texas. May 22, 1974. Malcolm Dade and John E. Rapier, Court Appointed On Appeal, Dallas, for appellant. Henry Wade, Dist. Atty. and Maridell Templeton, Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION DALLY, Commissioner. The conviction is for felony theft; the punishment, ten years imprisonment. Appellant contends that the indictment is fatally defective in that it insufficiently describes the property taken as “two suits and being of the total value of over $50.-00,” and that the Court erred in overruling her motion to quash the indictment. Arti-ele 21.09, Vernon’s Ann.C.C.P., reads in part as follows: “When it becomes necessary to describe property of any kind in an indictment, a general description of the same by name, kind, quality, number and ownership, if known, shall be sufficient Appellant says the description in the instant indictment does not describe the kind of property taken, i. e., “whether the suits are women’s suits, childrens’ suits, men’s suits, suit’s (sic) of cards, costumes, or merely suits of clothing.” We do not think the description “two suits” is so vague as to be insufficient under Article 21.09, supra. This Court has held similar descriptions of property to be sufficient. See White v. State, 505 S.W.2d 258 (Tex.Cr.App.1974) (“one (1) pick-up truck”); Kirkland v. State, 489 S.W.2d 298 (Tex.Cr.App.1972) (“one (1) ox ygen container”); Ward v. State, 446 S.W.2d 304 (Tex.Cr.App.1969) (“one (1) automobile”); Mays v. State, 428 S.W.2d 325 (Tex.Cr.App.1968) (“one (1) television set”); Wilson v. State, 398 S.W.2d 291 (Tex.Cr.App.1965) (“ten (10) drill bits”) ; Beland v. State, 160 Tex.Cr.R. 351, 271 S.W.2d 430 (Tex.Cr.App.1954) (“one (1) camera”). The authorities relied on by appellant are not controlling, because in each of those cases, the quantity of the property taken was not alleged. See Moore v. State, 473 S.W.2d 523 (Tex.Cr.App.1971) (“tires”); Oakley v. State, 167 Tex.Cr.R. 630, 323 S.W.2d 43 (Tex.Cr.App.1959) (“seed”); Scott v. State, 125 Tex.Cr.R. 396, 67 S.W.2d 1040 (Tex.Cr.App.1934) (“certain lubricating oil”); cf. Young v. State, 139 Tex.Cr.R. 509, 141 S.W.2d 315 (Tex.Cr.App.1940). We overrule this ground of error. Appellant further asserts that the prosecutor improperly cross-examined her con-cernmg the details of her prior convictions. The questions complained of were as follows: “[PROSECUTOR]: Let me just ask you, Ma’am, if you are one and the same Irma Lee Bruner who in 1967 was convicted of the offense of theft over for the unlawful felony theft over of two suits of men’s clothing, value of fifty-nine ninety-nine each of the total value of over $50.00 ? “[PROSECUTOR]: And one and the same Irma Cox Bruner, alias Irma Lee Bruner who was duly and finally convicted of the felony offense of theft over, one radio tape player, seven boxes of cards, all of the total value of over $50.00 and received a five year sentence in the Texas Department of Corrections, September, 1968? “[PROSECUTOR]: Well, I will just ask you to read the Indictment where it indicates two suits of men’s clothing the value of — ” Appellant’s objection to the first question was a general objection to “going into that matter at this phase of the trial.” She made no objection to the second question and she obtained no adverse ruling from the Court on her objection to the third question. Moreover, all of the information conveyed by these three questions is contained in the records of the appellant’s prior convictions, and these records were all properly admitted into evidence without objection. They consisted of authenticated copies of the indictment, judgment and sentence in each of these cases. See Knox v. State, 487 S.W.2d 322 (Tex.Cr.App.1972); Brown v. State, 485 S.W.2d 914 (Tex.Cr.App.1972). In propounding the questions the prosecutor was not improperly inquiring into details of the prior convictions. Cf. Lege v. State, 501 S.W.2d 880 (Tex.Cr.App.1973); Cain v. State, 468 S.W.2d 856 (Tex.Cr.App.1971); Driehs v. State, 164 Tex.Cr.R. 455, 301 S.W.2d 123 (Tex.Cr.App.1957). We overrule this ground of error. The judgment is affirmed. Opinion approved by the Court. . We note, however, that the grand jury appears to have had sufficient evidence before it to have alleged “two suits of men’s clothes” rather than merely “two suits.”

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Prentice Noel ELLARD, Appellant, v. The STATE of Texas, Appellee. No. 48211. Court of Criminal Appeals of Texas. May 15, 1974. Rehearing Denied June 5, 1974. Ruth J. Blake, Allan J. Showers, Houston, for appellant. Carol S. Vance, Dist. Atty., James C. Brough and John Holmes, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION CHADICK, Commissioner. Appellant, Prentice Noel Ellard, was indicted and tried for the offense of felony theft. In a jury trial on plea of not guilty, appellant was found guilty and assessed punishment at seven years’ imprisonment. Circumstantial evidence was relied upon for conviction in the trial court. Appellant grounds error on insufficiency of the evidence to support a conviction. Appellant did not testify. The argument in appellant’s brief narrows the issue in this appeal to the probative effect of unexplained possession of recently stolen property. The argument is that appellant’s “possession of a stolen gun almost six months after the theft is too remote in time” to support the conviction. The evidence shows a .9mm Smith and Wesson pistol, model 39, serial No. 84033, was stolen in a burglary of the H. C. Alexander gunshop in Houston along with more than forty other guns of various kinds. The burglary occurred during the evening hours of January 16, 1970 or the morning hours of January 17, 1970. The stolen pistol was taken from appellant’s possession when he was arrested near Little Rock, Arkansas, June 8, 1970. A period of 142 days elapsed between the time of the theft and time of arrest. On January 19, 1970, 42 guns, identified as those taken in the burglary of the Alexander gunshop, were purchased by a gun dealer. The gun dealer testified without objection that in the course of negotiations for purchase of the guns he received a telephone number from a person offering the guns for sale. He could not identify appellant as one of the several persons present during negotiations or sale. A police officer testified that the telephone number given the gun dealer was that of the telephone in a house in Houston occupied by appellant. In Hollins v. State, 411 S.W.2d 366 (Tex.Cr.App.1967), it is said: “The unexplained possession of recently stolen property is sufficient to authorize a jury to convict for theft of such property. Bryant v. State, Tex.Cr.App., 397 S.W.2d 445; Wall v. State, 167 Tex.Cr.R. 634, 322 S.W.2d 641; 5 Branch’s Ann.P.C.2d, Sec. 2650; 55 Tex.Jur.2d 480, Sec. 214.” Drawing on the decision of this State, Tex.Jur.2d Theft, Section 214, formulates this rule: “ * * * if a person in whose exclusive possession property recently stolen is found fails reasonably to account for his possession when called on to explain or when the facts are such as to require an explanation from him, the presumption of guilt arising from recent loss and possession will warrant a conviction without the necessity for further proof.” However, it is pointed out in Clark v. State, 149 Tex.Cr.R. 537, 197 S.W.2d 111 (1946), that unexplained possession of recently stolen property is a circumstance of guilt but is not conclusive. A conviction resting upon such evidence must be tested under the law of circumstantial evidence. To be sufficient the circumstances relied upon must not only be consistent with each other and with the guilt of the accused but must exclude every other reasonable hypothesis except the guilt of the accused. See also, Culmore v. State, 447 S.W.2d 915 (Tex.Cr.App.1969). Here the question of chief concern is whether or not the pistol was recently stolen property as the term recently is used in the rule. It was found in appellant’s possession 142 days (nearly five months) after it was stolen. Texas cases have held as a matter of law that an inference of guilt sufficient to support conviction was not raised by possession of stolen property after elapse of time ranging from three and one-half months up to several years. See Preston v. State, 147 Tex.Cr.R. 79, 178 S.W.2d 522 (1944); 55 Tex.Jur.2d Theft, Section 217, (cases listed in footnote). Out-of-state decisions have reached diverse and conflicting results. See 52A C.J.S. Larceny § 107 (cases listed in footnotes). However, it is clearly established in Texas that each case must be judged by its facts and whether or not possession was recent within the meaning of the rule is a question of fact to be determined by the jury from the surrounding circumstances. Allen v. State, 97 Tex.Cr.R. 467, 262 S.W. 502 (1924); Martin v. State, 131 Tex.Cr.R. 387, 98 S.W.2d 810 (1936); Florez v. State, 26 Tex.App. 477, 9 S.W. 772 (1888); 55 Tex.Jur.2d Theft, Section 217. Under circumstances shown by this record, the trial court did not err in allowing the jury to determine the weight to be given appellant’s possession of the pistol. The evidence is sufficient to establish appellant’s guilt to a moral certainty. While the owner of the burglarized gunshop was a witness, the prosecutor propounded three separate questions, each of which implied that several pistols were taken in the gunshop burglary. The trial judge sustained objections to answers to the first and last questions making such implication. The second question containing the implication was objected to on the ground it was leading and suggested the answer desired. Appellant’s third ground of error asserts, “Improper admission by trial court of evidence of theft of items for which defendant was not on trial: it was material error which injured the defendant for the trial court to admit evidence of theft of several guns, when defendant was on trial for the theft of one gun.” It is argued: “Such references to several guns was highly prejudicial and created the atmosphere that the defendant was on trial for the theft of more than one gun. Defendant would show that such prejudicial remarks before the jury deprived defendant of his constitutional rights to a fair trial.” The testimony admitted referred to the theft of the pistol and described contemporaneous interwoven circumstances which were relevant to the issues in the case. The evidence was admissible as res gestae of the offense charged. Webb v. State, 472 S.W.2d 760 (Tex.Cr.App.1971); Kerrigan v. State, 167 Tex.Cr.R. 601, 321 S.W.2d 884 (1959); McCoy v. State, 144 Tex.Cr.R. 309, 162 S.W.2d 976 (1942); 23 Tex.Jur.2d, Evidence, Section 196. Appellant’s fourth and sixth grounds of error will be grouped for discussion. The State’s exhibit No. 1 was a .9mm Smith and Wesson pistol, serial No. 84033, State’s exhibit No. 2 was a cartridge clip (partially loaded), found in the pistol mentioned, and State’s exhibit No. 3 was a cartridge clip (empty), found in appellant’s right front pocket. These exhibits were turned over to Little Rock, Arkansas, police service bureau by the officer that arrested appellant. The officer as a witness in the case identified these items of evidence. Error is urged because the witness did not mark or tag the exhibits as suggested in McDonald v. State, 160 Tex.Cr.R. 181, 268 S.W.2d 157 (1954), nor receive them back from the custodian with whom he had left them. The witness’ identification of the pistol by its serial number is clear and positive. Identification of the cartridge clip possibly presented a problem, though the witness’ identification was not tested by cross-examination. After the articles were identified, the prosecuting attorney stated he was “offering this.” Whether he thereby tendered the three exhibits or only one is not clear from the record. Objection was made to the offer on the ground that an “improper predicate had been laid.” In a prosecution of this nature, the article allegedly stolen and found in the accused’s possession may be exhibited to the jury. 2 McCormick & Ray, Texas Law of Evidence, Section 1456; 23 Tex. Jur.2d, Evidence, Section 392. The pistol was clearly admissible. It is a familiar rule that a general objection directed to evidence, a part of which is admissible, is insufficient to preserve error. Cornelius v. State, 157 Tex.Cr.R. 129, 246 S.W.2d 886 (1952); Mitchell v. State, 156 Tex.Cr.R. 128, 239 S.W.2d 384 (1951); 5 Tex.Jur.2d, Appeal and Error- — Criminal Cases, Section 41. All grounds of error have been carefully examined and reversible error is not found. The judgment of the trial court is affirmed. Opinion approved by the Court.

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Antonio RODRIQUEZ, Appellant, v. The STATE of Texas, Appellee. No. 48282. Court of Criminal Appeals of Texas. May 1, 1974. Rehearing Denied June 5, 1974. Malcolm Dade and John E. Rapier, Dallas, for appellant. Henry Wade, Dist. Atty., Maridell Tem-pleton, Asst. Dist. Atty., Dallas, and Jim D. Vollers, State’s Atty., Austin, for the State. OPINION GREEN, Commissioner. Appellant was convicted in a jury trial of sale of heroin. The jury assessed punishment at fifteen hundred years’ confinement. The record reflects that appellant sold to undercover agent Roberts three capsules of heroin for $21.00. The cellophane package from which appellant took these capsules contained 25 to 30 capsules. Chain of custody was shown, and a qualified chemist identified the capsules sold to Roberts as containing heroin. Appellant offered no testimony at the guilt stage. After the verdict of guilty was returned, the State, at the punishment stage of the trial, introduced evidence of two prior convictions, these being a federal conviction for the sale of marihuana, and a state conviction for robbery. Appellant, at the punishment stage, testified on direct examination that he had been a heroin addict for 10 years, that he “needed” between 20 to 24 capsules a day, and used heroin of the market value of about $75.00 daily. Much evidence was introduced by both parties of the evil effects of the use of heroin in such manner. In his first ground of error, appellant contends that the verdict of 1500 years is void, excessive, cruel and unusual punishment under U.S. Constitution, Amendment VIII, and Texas Constitution, Art. 1, Section 13, Vernon’s Ann.St., because it is outside the range of punishment prescribed in Article 725b, Section 23(b), Vernon’s Ann.P.C. This Article, in effect at the time of the commission of the offense and the trial, provided a punishment of “not less than five years nor more than life.” Appellant argues that since this article does not contain the language “any term of years,” cases such as Angle v. State, Tex.Cr.App., 501 S.W.2d 99 (2500 years for murder with malice); Yeager v. State, Tex.Cr.App., 482 S.W.2d 637 (500 years for murder with malice); and Sills v. State, Tex.Cr.App., 472 S.W.2d 119 (1000 years for robbery by assault) do not affect the instant case. He contends that since life is the maximum punishment which can be assessed under the statute for sale of heroin, a sentence of 1500 years is greater than life, and therefore void. Recently, in Albro v. State, Tex.Cr.App., 502 S.W.2d 715 (1973), we upheld a punishment of 100 years assessed under Article 725b, Section 23(a), V.A.P.C., for possession of marihuana. This article also did not include the phrase “any term of years.” The punishment was attacked as being prohibited by the Eighth Amendment and by Article 1, Section 13 of our State Constitution. In overruling the defendant’s contention, we stated: “We have often held and remain convinced that the period of imprisonment assessed by a court or a jury for possession of marihuana, if within the permissible range provided by statute, is neither cruel and unusual under the Constitution of the United States nor cruel or unusual under the State Constitution” citing authorities. In Yeager v. State, supra, in upholding a punishment of 500 years for murder, we said: “Recently, in Sills v. State, Tex.Cr.App., 472 S.W.2d 119, 120, we dealt with a similar contention and concluded, as we do here, that a very long sentence: “ ‘. . . . does not change the rule that a person can be considered for parole when he has received credit for 20 years or one-third of his sentence, whichever is the less. Art. 42.12, Sec. 15, Vernon’s Ann.C.C.P. Since such [long] sentences serve no purpose, the Legislature should at least set a maximum as well as a minimum for every crime. The entire sentencing structure of the State of Texas should be inquired into by the Legislature, which is the proper body, and not this Court, to make those corrections.’ “See also Miller v. State, Tex.Cr.App., 465 S.W.2d 150.” We consequently hold that the punishment assessed by the jury is within the range prescribed in Article 725b, Section 23(b), V.A.P.C., and is neither cruel nor unusual under the Federal or State Constitutions. Angle v. State, supra; Albro v. State, supra; Sills v. State, supra; Yeager v. State, supra. Appellant, in his second and third grounds of error, complains of certain portions of the State’s argument to the jury at the guilt stage. In both instances, the court sustained appellant’s objections, and instructed the jury to disregard the complained of argument, but overruled motions for mistrial. We have considered the remarks of the State, and do not find that they were of an inflammatory or prejudicial nature that could not be cured by such instructions. Morgan v. State, Tex.Cr.App., 502 S.W.2d 695. The second and third grounds of error are overruled. The judgment is affirmed. Opinion approved by the Court. . The punishment assessed was not attacked as being outside of the range of punishment fixed by statute. . We repeat as we said in Angle v. State, supra, that this Court has expressed its concern over the use of open-end statutes to impose a 1,000 or even a million year sentence by virtue of a jury verdict. Fortunately, this situation has been revised by the adoption in 1973 of the new penal code, effective January 1, 1974, which fixes the maximum term of years which can be assessed at 99 years. Sec. 12.32, Texas Penal Code (1973).

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James Arthur HALL, Appellant, v. The STATE of Texas, Appellee. No. 47997. Court of Criminal Appeals of Texas. May 22, 1974. Theodore R. Johns and Elmo R. Willard, III, Beaumont, for appellant. Tom Hanna, Dist. Atty., John R. De Witt, Asst. Dist. Atty., Beaumont, and Jim D. Vollers, State’s Atty., Austin, for the State. OPINION DOUGLAS, Judge. This is an appeal from a conviction for the sale of heroin. The jury assessed punishment at seventy-five years. Appellant was convicted of selling heroin to Elray J. Fontenot, an undercover narcotics agent, on February 22, 1972. The State relied primarily on Fontenot’s testimony. In his first ground of error, appellant contends that the trial court erred in refusing to permit him to impeach Fontenot by showing a prior conviction for possession of marihuana. The trial court granted the State’s motion in limine prohibiting appellant’s counsel from making any reference to the witness’ prior conviction upon a showing that Fontenot’s probation had been discharged and the judgment set aside by the convicting court. Appellant’s counsel objected that the order setting aside Fontenot’s conviction was void because the convicting court had no authority because Fontenot had not served one-third of his probation. Section 7 of Article 42.12, Vernon’s Ann.C.C.P., provides, in part: “At any time, after the defendant has satisfactorily completed one-third of the original probationary period or two years of probation, whichever is the lesser, the period of probation may be reduced or terminated by the court. Upon the satisfactory fulfillment of the conditions of probation, and the expiration of the period of probation, the court, by order duly entered, shall amend or modify the original sentence imposed, if necessary, to conform to the probation period and shall discharge the defendant. .” (Emphasis supplied) Article 38.29, V.A.C.C.P., provides, in part: “The fact that ... a witness in a criminal case, is or has been, charged . with the commission of an offense against the criminal laws of this State, of the United States, or any other State shall not be admissible in evidence on the trial of any criminal case for the purpose of impeaching any person as a witness unless ... a final conviction has resulted, or a suspended sentence has been given and has not been set aside, or such person has been placed on probation and the period of probation has not expired. . . .” The record discloses that Fontenot had been convicted of possession of marihuana in the 75th District Court on April 13, 1971, for which he received a five-year probation. On April 23, 1972, (less than 13 months later) the same court entered an order setting aside the judgment and discharging Fontenot from probation. The “Order Setting Aside Judgment, Discharging Defendant from Probation and Dismissal of this Cause” is set out in full in the record and recites the following basis for the court’s order: “. . . that the Defendant [Fonten-ot] was, on the date of the alleged offense in this case, an undercover narcotics agent for the State of Louisiana acting in conjunction with law enforcement agencies in the State of Texas and that at the time he was found in possession of marihuana as alleged in the indictment in this cause he was acting in the line of duty.” The judgment and order disclose that Fontenot had served only slightly more than one year on probation prior to his discharge. Therefore, the 75th District Court was without authority under Article 42.12(7), supra, to terminate Fontenot’s probation. Proof of a witness’ prior felony conviction is properly admissible for impeachment purposes where the probation has not expired. Smith v. State, Tex.Cr.App., 455 S.W.2d 282; Avilla v. State, Tex.Cr.App., 493 S.W.2d 233. We hold that the prior felony conviction of a witness whose probated sentence has not expired is not rendered inadmissible for purposes of impeachment by a void order terminating probation prior to the expiration of the minimum statutory period. Deputy Sheriff Jack Hebert of Calcasieu Parish, Louisiana, testified that he accompanied Fontenot on the occasion of the sale. He stated that, while hidden in the partially-opened trunk of an automobile driven by Fontenot, he overheard appellant agree to sell Fontenot six papers of heroin and six of cocaine and saw appellant hand him a cellophane bag. Hebert then testified that appellant jerked the bag out of Fontenot’s hand and told him they would have to go somewhere else. The two men went inside a nearby building out of Hebert’s sight, and shortly thereafter, Fonte-not returned with a cellophane bag containing heroin. Hebert did not see the transaction. Fontenot’s testimony that appellant sold him the heroin was countered by Ivory Lyons’ testimony that he, not appellant, made the sale to Fontenot. Upon such facts, Fontenot’s testimony and credibility were crucial. We conclude, under the circumstances of this case, that the trial court’s refusal to permit appellant to question Fontenot by showing his prior marihuana conviction was error. The State contends that even if there were error, it was harmless because if Fontenot had been impeached the circumstances of the conviction and the explanation could have been proved, citing 62 Tex.Jur.2d, Witnesses, Section 267, page 236, and 1 Branch’s Ann.P.C.2d, Section 194, page 216. The question of credibility was for the jury. The evidence should have been submitted for its determination. We cannot conclude that the error was harmless. The judgment is reversed and the cause remanded.

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William J. RUMMEL, Appellant, v. The STATE of Texas, Appellee. No. 48046. Court of Criminal Appeals of Texas. May 22, 1974. Harold L. Warford, San Antonio, for appellant. Ted Butler, Dist. Atty. and Antonio Cantu, Fred Rodriquez and Douglas C. Young, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION CHARLES L. REYNOLDS, Commissioner. The conviction is for the offense of theft by false pretext. The punishment, enhanced by the jury’s finding that appellant had two prior non-capital felony convictions, was assessed by the court at life imprisonment. When the State closed its evidence on the issue of guilt, appellant moved for, and was denied, an instructed verdict, and this denial is the subject of the second ground of error. Since appellant primarily is complaining of the sufficiency of the evidence, it is appropriate to review the facts for that resolution. Appellant did not testify and he presented no witness in his behalf. Except as otherwise indicated, the recitation of facts is from the testimony of two of the State’s witnesses, David Lee Shaw, Sr., and Paul Ellis. Shaw had leased Captain Hook’s Lounge in San Antonio from Ellis. About noon on August IS, 1972, Shaw and Ellis were discussing extra air conditioning for the lounge. During the course of the conversation, appellant entered the lounge. Ellis had a used air conditioning unit, with a bad compressor, which he offered to Shaw if Shaw wanted to buy a compressor for it. Appellant interrupted the conversation to state that he was an air conditioning repairman, and that he could get another compressor and install it. When Shaw asked the cost, appellant replied that he would call Service Supply. Returning from the telephone, appellant said the compressor would cost $120.75, and he would get it from Service Supply. An agreement was reached on the amount of appellant’s installation fee. It was further agreed that appellant would buy the compressor, get the air conditioning unit from another bar owned by Ellis, and meet Ellis the next morning at Captain Hook’s Lounge where appellant was to put the compressor in the unit and install the complete unit. Appellant asked for the money to buy the compressor. Shaw wrote his personal check made payable, at the suggestion of Ellis, to Service Supply in the sum of $120.75, designating thereon that it was for “Air Conditioner Comp.” Shaw delivered the check to appellant at approximately 2 p. m. In delivering the check to appellant, Shaw believed that appellant wanted to fix the air conditioner. Shaw intended and believed that the proceeds were for the purchase of a compressor and he intended that Service Supply cash the check. He did not give appellant permission to cash the check and obtain the proceeds. A short time after appellant left the lounge, he telephoned Shaw. He reported that Service Supply did not have the compressor, but that he could get one at Montgomery Ward Company through, as Shaw understood, Service Supply. Approximately one hour later, appellant called again. He told Shaw not to worry and that everything was all set, which Shaw took to mean that appellant had obtained the compressor. On the same day, appellant appeared before Ada Wesch, collection teller at the bank on which Shaw’s check was drawn. According to Mrs. Wesch, appellant said he was, or that he represented, Service Supply and wanted to cash Shaw’s check. Mrs. Wesch refused to cash the check since appellant did not have an account with the bank. She advised that he go to his own bank. Appellant was insistent that she cash the check and she, having verified that Shaw had sufficient funds on deposit and that there was no stop payment order on the check, suggested that she could guarantee the money by issuing a cashier’s check in exchange for Shaw’s check. Appellant accepted the suggestion. He endorsed Shaw’s check with the names Service Supply and William Rummel. He received the bank’s cashier’s check made payable to Service Supply in the same sum as, and in exchange for, Shaw’s check. It was the testimony of Mary Beth O’Brien, drive-in teller at the same bank, that at approximately 2:30 p. m. on the same day, a man, who stated he was, or that he represented, Service Supply, presented the cashier’s check to her for cash. After viewing the man’s picture on, and entering on the cashier’s check the number of, the Texas driver’s license presented to show that he was Mr. Rum-mel, and comparing the signatures on the license and the cashier’s check endorsement, Miss O’Brien cashed the cashier’s check. Mrs. Wesch testified that the endorsement on Shaw’s check and the endorsement on the cashier’s check were the same. It was shown by Glen Richardson, one of the owners of Service Supply, that no one by the name of William Rummel ever worked for the company and that William Rummel was never authorized to cash checks for Service Supply. Late the next day when Shaw had heard nothing further from appellant, he called Service Supply. He was informed that appellant had been there, but that the company could not sell to him since he was not an authorized dealer. Attempts by Shaw and Ellis to locate appellant proved fruitless. Ellis was told that appellant had gone by the bar where the air conditioning unit was located to look at it, but that it would not fit in the trunk of appellant’s car. Ellis thought that Shaw should stop payment on his check. On August 17, 1972, Shaw went to his bank to stop payment on his check, and he was told that his check had been cashed. For three weeks, Ellis tried unsuccessfully to locate appellant, who did not return to the lounge nor contact either Shaw or Ellis. Approximately a month after the occurrence, Shaw lodged a complaint against appellant and, about a month later, Shaw sold his interest in the lounge. The record reasonably supports the inference that neither Shaw nor Ellis saw appellant again until the day of the trial. The force of appellant’s insufficient evidence argument is that, since Shaw believed appellant wanted to perform his undertaking and the evidence shows that appellant attempted to perform the agreement, the evidence illustrates, not a theft by false pretext, but only a subsequent failure by appellant to fulfill a contractual obligation. The fact that appellant subsequently failed to perform under his representation as to future events does not render the evidence insufficient, because a statement as to future happenings, if it is a false representation by which one is induced to part with his property, may form the basis of the offense of theft by false pretext. Hilliard v. State, 401 S.W.2d 814 (Tex.Cr.App.1966), cert. denied 385 U.S. 941, 87 S.Ct. 310, 17 L.Ed.2d 220 (1966), rehearing denied, 385 U.S. 1021, 87 S.Ct. 726, 17 L.Ed.2d 561 (1967). The issue, then, is whether the evidence is sufficient to support the jury’s verdict that appellant obtained Shaw’s $120.75 by a false pretext which induced Shaw to surrender his money. In considering its sufficiency, the evidence must be viewed in the light most favorable to the jury’s verdict. White v. State, 478 S.W.2d 506 (Tex.Cr.App.1972); Jones v. State, 442 S.W.2d 698 (Tex.Cr.App.1969, cert. denied 397 U.S. 958, 90 S.Ct. 967, 25 L.Ed.2d 143 (1970)). In presenting the ground of error, appellant concedes that Shaw surrendered his money on the belief that appellant wanted to perform as he represented he would. Thus, if the evidence sufficiently shows that appellant’s ostensible reason—i. e., to buy the compressor preparatory to repairing the air conditioning unit-—concealed his then true intent—i. e., to wrongfully take Shaw’s money—the offense of theft by false pretext was complete. Notwithstanding the hearsay testimony that appellant had been to Service Supply and had gone to look at Ellis’ air conditioner, the jury was entitled to credit with probative weight the evidence that appellant neither negotiated the check to the named payee nor returned it if he was not allowed to buy at Service Supply, but instead, by asserting that he was authorized to cash the check, converted it into cash within thirty minutes of its receipt and, never again contacting Shaw, without consent appropriated the cash to his own use and benefit. These actions by appellant, considered with the surrounding circumstances, were justification for the jury’s conclusion that appellant’s representations that he would buy the compressor with the check and thereupon repair and install the air conditioning unit were false, and that appellant had the intent to wrongfully take Shaw’s money and appropriate it to his own use and benefit at the very time he made the false representation. Being properly charged in the matter, the jury’s conclusion on the facts is final. Johnson v. State, 144 Tex.Cr.R. 392, 162 S.W.2d 980 (1942). The second ground is overruled. Interrelated is the complaint expressed in the third ground that the jury should have been charged that any subsequent misrepresentations to third parties would be immaterial. To the contrary, the subsequent misrepresentations were material to the establishment of appellant’s initial intent to appropriate Shaw’s money by false pretext. See, e. g., Hoovel v. State, 125 Tex.Cr.R. 545, 69 S.W.2d 104 (1934), for the principle that in determining intent at the time of the representation, the circumstances prior to, at the time of, and subsequent to the transaction must be considered. But in any event, the court’s charge properly limited the jury’s consideration of false pretext to appellant’s representations to Shaw. The third ground is overruled. The ground first presented is that the court erred in excluding from evidence a verified statement previously executed by, and claimed by appellant to be contradictory of the trial testimony adduced from, the witness Shaw. The events leading to this contention are briefly recited. Two days before the trial commenced on April 9, 1973, Shaw received a call from appellant’s parents. They wanted to make restitution if Shaw would agree to “drop the charges.” Shaw received fifty dollars. He executed a verified instrument entitled “Release and Statement of Refusal to Prosecute.” The instrument recites that Shaw released appellant, subject to any claims his insurance company may have against appellant, from all claims arising from the occurrence, that Shaw had “knowledge of no facts upon which any criminal prosecution could be based,” and that Shaw would appear as a witness only under compulsion. Prior to the introduction of evidence, the State presented its motion in limine seeking to exclude from the jury any affidavit or statement of non-prosecution executed by Shaw. After hearing argument of counsel, the court granted the motion. At the close of the guilt-innocence phase of the trial, appellant tendered Shaw’s statement for admission into evidence. Following argument of counsel, the court again refused to admit the statement. The thrust of appellant’s presentation is that the portion of Shaw’s verified statement reading, “I have knowledge of no facts upon which any criminal prosecution could be based” was admissible for impeachment purposes. We do not agree. This is not the situation where, as in Hutson v. State, 164 Tex.Cr.R. 24, 296 S.W.2d 245 (1956), relied upon by appellant, the witness denied expressing a prior opinion opposed to that he testified to at the trial, in which event, Hutson holds, evidence of the prior statement may be received as proof that he did make such statement. At the trial in the instant case, Shaw expressed no opinion concerning appellant’s guilt. Neither is it the situation where, as shown in appellant’s cited cases announcing the proposition that, an adverse witness may be impeached by his prior statement contradictory to his trial statement on a material issue. Here, Shaw’s prior statement was not inconsistent with any material testimony he gave at the trial. Rather, here, Shaw’s statement that he had no knowledge of appellant’s guilt of a criminal offense presents the situation of a mere expression of opinion that appellant was not guilty. It long has been the rule in this State that a prior statement is not admissible if it is confined to an opinion that the accused is not guilty or to other irrelevant matters. Taylor v. State, 38 Tex.Cr.R. 552, 43 S.W. 1019 (1898). Falling into that category, the statement was not admissible. The first ground is overruled. Finally, appellant contends the court erred in withdrawing the question of punishment from, and submitting only a charge as to the special pleas to the allegations of prior felony convictions to, the jury. The ground is without merit. Upon tender of the charge on punishment to counsel, the court inquired if there were any objections. One of defense counsel answered, “So far, Your Honor, I have no objection” and, after a discussion of the forms of verdict, the same counsel stated, “I have no.objection.” The acquiescence in, and the absence of an objection to, the form of the charge not only failed to preserve but waived any error, Jaffrion v. State, 501 S.W.2d 322 (Tex.Cr.App.1973), and, therefore, nothing pertaining to the charge is presented for review. Dominguez v. State, 459 S.W.2d 628 (Tex.Cr.App.1970). The fourth and last ground is overruled. The judgment is affirmed. Opinion approved by the Court. . Hearsay testimony has no probative value. Salas v. State, 403 S.W.2d 440 (Tex.Cr.App.1966). . No challenge was made to the prosecutor’s incourt statement that Shaw was voluntarily appearing as a witness. . It is noted in passing that appellant, to support the contention that the jury should have fixed the punishment, quotes subsection 2(b) of Article 37.07, Yernon’s Ann.C.C.P., which was repealed in 1967. Subsection 1(b) of the statute now provides that, except in a situation not material here, the jury “shall assess the punishment in all cases where the same is not absolutely fixed by law to some particular penalty.” Pursuant to appellants plea of “True” before the jury to each of the two allegations of a prior non-capital felony conviction contained in the enhancement portion of the indictment and proof of the convictions, the court’s charge required the jury to assess the punishment unless the jury returned a verdict of “True” to appellant’s special pleas. The jury answered “True” and the court assessed punishment at life as required by Article 63, Yer-non’s Ann.P.C., which was then in force. Appellant’s two prior non-capital felony convictions being properly alleged and proved, the punishment was fixed by Art. 63, V.A.P.C., at life imprisonment. Once the jury returned its verdict of “True,” the court properly assessed the punishment; there was no necessity for the jury to assess the punishment because .it was automatically fixed by law. See Williams v. State, 463 S.W.2d 15 (Tex.Cr.App.1971).

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Fidel Navarro BELMAREZ, Appellant, v. The STATE of Texas, Appellee. No. 48058. Court of Criminal Appeals of Texas. May 22, 1974. John J. Browne, Houston, fo'r appellant. Carol S. Vance, Dist. Atty., Phyllis Bell and Jack Bodiford, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION McCLOUD, Commissioner. This is an appeal from a conviction for unlawful possession of heroin. The jury found appellant guilty and the court, after finding appellant had been previously convicted of the same offense, assessed his punishment at confinement in the Texas Department of Corrections for twenty-five years. Appellant contends the court erred, over his objection and exception to the charge, in failing to submit a charge on circumstantial evidence. We agree. The record reflects that an automobile driven by appellant, and containing two other passengers, was stopped by officers because of a traffic violation. Heroin was found under the front seat on the driver’s side of the vehicle. There is no testimony that appellant actually possessed the heroin. There was no showing that the automobile was owned by appellant, and the record clearly reflects that appellant did not have sole access to the automobile where the heroin was found. When confronted with facts not significantly distinguishable from those reflected by the record in the instant case, this court in Crawford v. State, 502 S.W.2d 768 (Tex.Cr.App.1973) recently held that the trial court committed reversible error by not charging on the law of circumstantial evidence. Judge Onion, while speaking for a majority of the court, said: “ . . . Nevertheless, the critical issue in the disposition of this case is the absence of direct evidence to prove possession of the heroin by the appellant. To prove possession the State must show that appellant had care, custody, control and management of the thing possessed either alone or jointly with others. Garza v. State, 468 S.W.2d 440 (Tex.Cr.App.1971). “This court has for some time held that the distinction between circumstantial evidence and direct evidence is that the latter applies directly to the ultimate fact to be proved, while circumstantial evidence is the direct proof of a minor fact which, by logical inference, demonstrates the fact to be proved. Beason v. State, 43 Tex.Cr.R. 442, 67 S.W. 96 (1902); Brown v. State, 126 Tex.Cr.R. 449, 72 S.W.2d 269 (1934); Ramos v. State, 478 S.W.2d 102 (Tex.Cr.App.1972) (on State’s Motion for Rehearing). In the instant case, no witness saw appellant actually possess the heroin. Moreover, the residence where the heroin was discovered did not belong to appellant; thus no question of sole access is raised. Instead, the heroin was found at the residence of another person in which appellant was present at the time of the search. Therefore, the ultimate fact of whether appellant possessed the heroin found was not proved by direct evidence. In the absence of direct evidence, the refusal to grant a requested charge on circumstantial evidence is reversible error. Farris v. State, 496 S.W.2d 55 (Tex.Cr.App.1973).” See also: Denny v. State, 473 S.W.2d 503 (Tex.Cr.App.1971); Scelles v. State, 358 S.W.2d 623 (Tex.Cr.App.1962); Arsiaga v. State, 372 S.W.2d 538 (Tex.Cr.App.1963); Ramos v. State, 478 S.W.2d 102 (Tex.Cr.App.1972); McBride v. State, 486 S.W.2d 318 (Tex.Cr.App.1972). The cases cited by the State urging the applicability of the doctrine of “close juxtaposition” are distinguishable. We conclude the court committed reversible error in failing to submit a charge on circumstantial evidence. In view of our disposition, it is not necessary to consider appellant’s other contentions. The judgment is reversed and the cause remanded. Opinion approved by the Court. ODOM, J., concurs in the result. DOUGLAS, Judge (dissenting). The facts in this case show that the appellant was arrested for driving his car on the wrong side of the road. An officer testified that he swerved his patrol car to the shoulder of the road to avoid a head-on collision with the car appellant was driving and, “Well, when he was passing us it was a complete — not a complete, but he leaned way over in the seat as if to push something back or to place something down there.” After appellant’s car was stopped, officers looked in the door and recognized two capsules as black mollies, the common name for amphetamines, lying on the floorboard in plain view. The officers took the black mollies and a brown package beside them. The brown package contained other black mollies and a cellophane package of white powder later ascertained to be heroin. Here the appellant was the driver of the car. The contraband was found on the floorboard near the front seat where he had made a movement as if to place something down. The evidence was so closely connected with the appellant that no charge on circumstantial evidence was required. See Oltiveros v. State, Tex.Cr.App., 474 S.W.2d 221, and the dissenting opinion in Ramos v. State, Tex.Cr.App., 478 S.W.2d 102. Even if such a charge on circumstantial evidence should have been given, such failure would not have been such as to affect the result of the trial. See Article 36.19, Vernon’s Ann.C.C.P. The judgment should be affirmed. MORRISON, J., joins in this dissent.

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Marvin Eugene HALE, Appellant, v. The STATE of Texas, Appellee. No. 48394. Court of Criminal Appeals of Texas. May 22, 1974. R. Roscoe Haley, Austin, for appellant. Ned Granger, County Atty. and Jim D. Vollers, State’s Atty., Austin, for the State. 0 OPINION DOUGLAS, Judge. This is an appeal from a conviction for driving while intoxicated. The court assessed punishment at a fine of fifty dollars and six months in jail, probated. Appellant’s sole contention is that the trial court erred in admitting into evidence a blood sample taken from him without his consent while he was unconscious in a hospital emergency room following an automobile accident. Specifically, appellant contends that the blood sample, taken from a “free flowing wound” by two Department of Public Safety patrolmen, was the product of an illegal search and seizure in violation of his Fourth Amendment rights and his right to due process, and was in violation of Article 802f, Vernon’s Ann.P.C. We are unable to reach the merit of this contention because we have not been furnished with a complete record. The record before us contains only certain excerpts from the appellant’s pre-trial hearing regarding the procedure used and circumstances surrounding the taking of the blood sample. The record does not disclose whether the sample was ever analyzed or whether there was any expert chemical evidence introduced regarding the results of an analysis and used to incriminate appellant. Under Article 40.09, Vernon’s Ann.C.C.P., it is appellant’s responsibility to obtain a transcription of the court reporter’s notes. Appellant was apparently represented by retained counsel at all stages of trial and appeal and the record on appeal contains no affidavit of indigen-cy which would entitle him to a complete transcript at no cost. There is no objection to the record on appeal. We are, therefore, bound by the record before this Court. See Stockton v. State, Tex.Cr.App., 487 S.W.2d 69; Martinets v. State, Tex.Cr.App., 493 S.W.2d 923; Goodings v. State, Tex.Cr.App., 500 S.W.2d 173. We, therefore, hold that, absent a complete statement of facts, showing the rulings of the trial court of which appellant complains, nothing is presented for review by this Court. The judgment is affirmed.

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Isaac WASHINGTON, Appellant, v. The STATE of Texas, Appellee. No. 48415. Court of Criminal Appeals of Texas. May 29, 1974. Victor R. Blaine, Houston, for appellant. Carol S. Vance, Dist. Atty., James C. Brough and Mike Brown, Asst. Dist. Atty., Houston, Jim D. Vollers, States Atty., Austin, for the State. OPINION JACKSON, Commissioner. The conviction was by the court without a jury of the offense of false imprisonment under Art. 1169, Vernon’s Ann.P.C.; the punishment, nine (9) months in the county jail and costs. It is appellant’s contention that the evidence is not sufficient to support the conviction. Appellant Isaac Washington was m the bail bond business, and had become surety on a bail bond for Dupree, who gave complaining witness Butcher’s address. Appellant evidently thought Butcher was the same person as Dupree, or at least that Butcher could tell him where Dupree was. On the night of February 22, 1972, two men, one of whom worked with appellant in the bail bond business, came to Butcher’s apartment and knocked. When he opened the door, they forced it open, “barged” in without his permission, claimed to be Federal Agents, one of them displayed a pistol, put Butcher in fear of his life, and against his will forced him to go in his truck to appellant’s office with them. There appellant kept him in his office for about two hours, questioned him about Dupree, threatened him with a Doberman Pinscher dog if he attempted to leave and threatened to “frame” him with a dope charge. After he was allowed to telephone his mother the second time, she having notified the police after the first call, he was allowed to leave. During the entire time he was detained by appellant in his office, Butcher said he was afraid for his life. When he went to his truck to return home, he found a matchbox containing what he believed to be marihuana under the seat, and threw it down on the pavement. We find the evidence sufficient to sustain the conviction, and affirm the judgment. Opinion approved by the Court.

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Johnny Ray JOHNSON, Appellant, v. The STATE of Texas, Appellee. No. 48480. Court of Criminal Appeals of Texas. May 29, 1974. Melvyn Carson Bruder (court appointed), Dallas, for appellant. Henry Wade, Dist. Atty., and William L. Hubbard, Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION DALLY, Commissioner. The conviction is for robbery; the punishment, imprisonment for forty years. The appellant first complains that evidence of an extraneous offense was erroneously admitted. The State’s proof shows that the appellant robbed the same victim on two occasions, both on the 15th and 29th of September, 1971. The appellant did not testify in the presence of the jury and presented no evidence in his defense during the guilt-innocence phase. The State argues that reversible error is not reflected because there was not a sufficient objection to preserve error. We need not determine whether the objection was sufficient since we sustain the appellant’s ground of error number three and reverse the judgment. In ground of error number three the appellant complains that the trial court erred in refusing to submit an instruction limiting the jury’s consideration of the extraneous offense proved by the State. The record reflects that there was a timely request made in writing that the Court limit the jury’s consideration of the proof of the extraneous offense to the issue of identity. The Court failed to respond to this request and the charge submitted did not limit the jury’s consideration of the evidence of the extraneous offense. The Court’s failure to respond to this request was error. Where evidence of extraneous offenses is admitted to show identity, there is a danger the jury may consider the extraneous offenses not only on the issue of identity, but also on the issue of the defendant’s guilt of the charged offense, and a limiting instruction must be given if properly requested. Wyatt v. State, 55 Tex.Cr.R. 73, 114 S.W. 812 (1908); see 1 Branch’s Ann.P.C.2d, § 210, at p. 240; 31 Tex.Jur.2d, Instructions, § 146 at p. 721; see also Curry v. State, 169 Tex.Cr.R. 195, 333 S.W.2d 375 (1960); Ernster v. State, 165 Tex.Cr.R. 422, 308 S.W.2d 33 (1957). The State urges that the jury need not be instructed to limit their consideration of evidence which goes to prove one of the main issues in the case. In this case» that issue is the appellant’s identity. The State cites and relies upon Dillard v. State, 477 S.W.2d 547 (Tex.Cr.App.1971); Lacy v. State, 424 S.W.2d 929 (Tex.Cr.App.1968); Cox v. State, 316 S.W.2d 891 (Tex.Cr.App.1958) and Arcos v. State, 120 Tex.Cr.R. 315, 29 S.W.2d 395 (1930). The State has misapplied the rule of law which they have stated. This rule does not apply where the evidence in question is evidence of an extraneous offense, admitted on the issue of identity. Dillard v. State, supra, does not support the State’s position. That opinion concerning the admission of extraneous offenses states: “The trial judge charged the jury to consider the testimony only for the purpose of identity.” In Lacy v. State, supra, the opinion of the majority of the Court on original submission would seem to support the state’s position here. However, on appellant’s motion for rehearing the majority of the Court retreated to the position that the appellant’s objection to the charge was insufficient to preserve error. On original submission Judge Morrison dissented, citing many cases supporting the giving of such a charge. On motion for rehearing Judge Onion, joined by Judge Morrison, dissented to the overruling of the Appellant’s Motion for Rehearing on the ground that the trial court had erred in refusing to submit a limiting instruction concerning the jury’s consideration of the extraneous offense. Judge Onion’s opinion discusses and distinguishes Arcos v. State, supra. In Cox v. State, supra, the conviction was for consenting to accept a bribe. Two witnesses, Shelton and Johnson, testified that Cox solicited a bribe from them. A part of that opinion reads: “The testimony of Shelton and Johnson showed a solicitation by the appellant of a bribe. At that time (1955), however, it was not an offense under the statute law of this state for an officer to solicit a bribe.” The opinion also states in regard to the testimony of Shelton and Johnson that: “At the time this testimony was offered the trial court orally instructed the jury that the testimony was limited to their consideration thereof upon the question of intent, if the same did, in fact, have any relation to or did show appellant’s intent. In his charge the trial court expressly limited the jury’s consideration of the testimony ‘for the purpose of showing, if it does, intent, if any, by or under which the offense, if any, alleged in this indictment was committed, if the same was committed, and for no other purpose.’ ” Thus, Cox v. State, supra, does not support the State’s position in this case. The questions presented in the remaining two grounds of error concerning jury argument and pretrial identification are not likely to present the same problems in the event of another trial and discussion of these grounds of error is unnecessary here. The judgment is reversed and the cause remanded. Opinion approved by the Court. . The indictment in this appeal alleged the commission of the robbery on September 15, 1971. The appellant’s conviction for the robbery occurring on September 29, 1971, has recently been affirmed by this Court. See Johnson v. State, 504 S.W.2d 496 (Tex.Cr.App.1974). Two other judgments of conviction of this same defendant have been affirmed by this Court recently. See Johnson v. State, 503 S.W.2d 280 (Tex.Cr.App.1973). . In the case before us, the evidence of the extraneous offense is as strong as the evidence of the charged offense. . The rule relied on by the State is well known and is properly applicable in many instances, e. g., where the extraneous offense shows the defendant’s motive, intent or malice. See Thames v. State, 453 S.W.2d 495 (Tex.Cr.App.1970); Moss v. State, 364 S.W.2d 389 (Tex.Cr.App.1963).

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Troy BLACKBURN et al., Appellants, v. B. C. COONER, Appellee. No. 8415. Court of Civil Appeals of Texas, Amarillo. April 29, 1974. Rehearing Denied May 28, 1974. C. J. Humphrey, Amarillo, for appellants. Blanchard, Clifford, Sims & Kidd (William A. Clifford), Lubbock, for appellee. ROBINSON, Justice. This is a suit for damages resulting from an automobile accident. Based on the jury’s findings of contributory negligence, a take-nothing judgment was rendered against the plaintiffs. Reversed and remanded. Miss Bobbie Jan Blackburn and Troy Blackburn, individually and as next friend for Miss Blackburn, sued B. C. Cooner for personal injury and property damage sustained when her car overturned as she was attempting to avoid a collision with defendant Cooner’s pickup when he drove it across the highway in the path of her oncoming car. Trial was to a jury. In response to special issues, the jury found that Cooner committed various acts of negligence and that such acts were, each, a proximate cause of the accident. The jury also found, in answers to the special issues numbered as follows: that Miss Blackburn (4a) failed to keep a proper lookout, which (4b) was a proximate cause of the accident, (6a) drove at an excessive rate of speed, under the circumstances, which (6b) was a proximate cause of the accident and (7a) suffered no damage for pain and suffering. By no evidence and insufficient evidence points of error, appellants challenge the evidentiary support for the jury’s findings regarding contributory negligence, as well as the finding that Miss Blackburn sustained no damage for pain and suffering as a result of the accident. Plaintiff, Bobbie Jan Blackburn, testified that she was going east on Highway 70 at approximately 65 m. p. h. in a 70 m. p. h. zone. As she topped a rise she saw two pickup-trucks parked on the right side of the road less than a quarter of a mile away. She saw one pickup pull up on the edge of the highway and she applied her brakes and started to slow down. The pickup hesitated for a moment. She had just removed her foot from the brake when the pickup pulled on out in front of her broadside in the highway. She slammed on her brakes and turned the wheel to the right as hard as she could, succeeding in barely missing the pickup by going between it and the other pickup at the side of the road. Her vehicle overturned when it hit the gravel. The testimony of O. B. Whitford, who observed the occurrence from the south side of the highway, is consistent with Miss Blackburn’s testimony. He said, “A. Well, Mr. Cooner pulled up on to the highway, and this car was coming, and I thought that if he kept continuing why that there was going to be a wreck, but just as he got up on the highway, he just kind of hesitated. I won’t say he stopped, but he just kind of hesitated as if he was going to stop, in my estimation. And by that time this car had decided that he was going to stop, or it looked to me like that is what, and he just pulled on over and the car went behind him. “Of course, by that time, the car was traveling sideways, and it just turned over, and then he pulled over across the highway, across the blacktop, and stopped.” Mr. Whitford testified that he could not estimate the speed of Miss Blackburn’s vehicle, but in answer to question by defendant’s counsel, he testified as follows: “Q. She was going too fast, wasn’t she? “A. Well, I wouldn’t say she was going too fast. The vehicles were just too close together. “Q. You wouldn’t say she wasn’t going too fast either, would you ? “A. Well, I didn’t think she was traveling any faster than any other car that would have been coming by there in the same circumstances. “Q. And the speedlimit was seventy? “A. It is seventy miles an hour.” Buford Price, who was in the pickup beside the road at the time of the occurrence, testified that Cooner backed up his pickup to clear Price’s vehicle and drove directly through a sloping area on the roadside up onto the highway. He testified: “A. Well, Mr. Cooner, I directed him to Mr. Whitford, pointed him out to him, and I got back in my pickup and sat there, and he pulled across the road there, pulled up on the road, actually, and stopped dead stiU, but he was already part way on toat road and part way off of it. And I looked back over my shoulder and seen a car coming, didn’t know who it was, or anything. “And this — -from there on, he fogged it on across the road, and naturally, I would have, too. “Q. All right. “A. And this accident happened. Now, that is just the way I seen it. It happened. “And I don’t know how — or where she was from, where she seen him, or anything about it, or whoever was driving the car at that time, I didn’t know. “But it triggered that accident. “Q. His crossing the road at the time? “A. Yes, sir.” Mr. Price testified that he could not estimate the speed of Miss Blackburn’s vehicle, but in response to questions by defendant’s counsel, testified: “Q. Did it appear to you she she (sic) was moving pretty fast ? “A. Well, no. No faster than the average car goes.” The defendant, B. C. Cooner, testified that he was 74 years old at the time of the accident and 76 years old at the time of the trial. According to Mr. Cooner, when his back wheels were in the low part of the barditch and his front wheels at the edge of the shoulder of the road, not the blacktop, he looked east and to the west. He also testified as follows: “A. Well, when I looked east, I didn’t see any car or vehicle of any kind coming west; and at first I didn’t see any car coming up the hill from the west going east, but as I started my pickup to rolling north, had it in gear and was feeding it a little gas, I saw the top of this car, just a little white line, on top of the hard road surface, and I speeded up as fast as I could, gave the pickup all the gas it would take, and drove straight north across the pavement, and off of the pavement, and turned east after I got off of what they call the shoulder of the highway, which is just packed gravel and not the blacktop. “And before I stopped my pickup, I turned my head to the right to see what kind of vehicle was going to pass me, and I didn’t see any, and I looked a little further around, and I saw this car up in the air. I could see underneath it. And I would judge it was about a foot and a half, the top of it, off of the ground.” Mr. Cooner testified that the crest of the hill was about 1600 feet from where he crossed the road and that he had, by re-enacting the occurrence, clocked the time he took to cross the road and that it took 5 seconds. If Mr. Cooner is correct and if Miss Blackburn did traverse 1600 feet in 5 seconds, she was driving her 1966 six-cylinder Ford Falcon at 218 miles per hour. There is considerable variation in the testimony of different witnesses concerning the distance from the crest of the hill to the scene'of the accident. Two witnesses testified that it was about 200 yards. In weighing such testimony, the jury may accept all, part or none of the testimony of any one witness, or it may accept part of one witness’ testimony and part of another’s. Knight v. Hicks, 505 S.W.2d 638 (Tex.Civ.App.—Amarillo 1974, writ ref’d n. r. e.); Reinke v. Thomas, 369 S.W.2d 692 (Tex.Civ.App.—Waco 1963, writ ref’d n. r. e.). By considering the testimony in the light most favorable to the jury verdict and by disregarding all testimony adverse to it, we find that there is some evidence, particularly inferences to be drawn from time and distance testified to by Mr. Cooner, that Miss Blackburn was travelling at an excessive rate of speed on the occasion in question. However, when we consider all of the testimony including that against, as well as for, the verdict as required by 'the rule in In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951), we conclude that the finding of excessive speed is against the overwhelming weight of the evidence that Miss Blackburn was travelling as an ordinary prudent person would travel on the highway on the occasion in question. A driver is not required to anticipate the negligent acts of another. Day v. McFarland, 474 S.W.2d 946 (Tex.Civ.App.—Tyler 1971, writ ref’d n. r. e.); Holland v. Collins, 457 S.W.2d 177 (Tex.Civ.App.—Amarillo 1970, writ ref’d n. r. e.). Miss Blackburn was not required to anticipate that the driver of the pickup-truck on the side of the road would pull across the open highway and across the path of her approaching vehicle. The evidence does not show that she could have avoided the accident after it was apparent that the pickup was pulling out. On the contrary, there is substantial evidence that she averted a collision with one or the other of the pickups by prompt and skillful evasive action. In this connection, the jury refused to find that she failed to make proper application of her brakes. The issue reads as follows: “NO. 5 “(a) Do you find from a preponderance of the evidence that Bobbie Jan Blackburn failed to make a proper application of the brakes upon her vehicle, upon the occasion in question ? “Answer ‘Yes’ or ‘No.’ “ANSWER No.” Further, there is insufficient evidence that Miss Blackburn failed to keep a proper lookout. She testified that she observed the pickup-trucks as she topped the hill and continued to observe them until the accident. The jury did not have to believe this testimony, but a refusal to believe testimony will not supply evidence to the contrary. Schoellmann v. Ammann, 352 S.W.2d 920 (Tex.Civ.App.—Houston 1962, writ ref’d n. r. e.). See Missouri-Kansas-Texas Railroad Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931, 945 (1956). The mere occurrence of an accident or a collision is not evidence of negligence and will not, of itself, support a finding of failure to keep a proper lookout. Rankin v. Nash-Texas Co., 129 Tex. 396, 105 S.W.2d 195, 199 (1937); Polasek v. Quinius, 438 S.W.2d 828, 839 (Tex.Civ.App.—Austin 1969, writ ref’d n. r. e.). Nor will evidence, or inferences therefrom, which are as consistent with the exercise of due care by plaintiff as with the absence of care, establish contributory negligence. Williams v. Hill, 496 S.W.2d 748 (Tex.Civ. App.—Tyler 1973, writ ref’d n. r. e.); Dewhurst v. South Texas Rendering Co., 232 S.W.2d 135 (Tex.Civ.App.—San Antonio 1950, writ ref’d n. r. e.). We hold that the jury finding that plaintiff failed to keep a proper lookout and the jury finding that she was travelling at an excessive rate of speed are so against the overwhelming weight of the evidence as to be clearly wrong. We do not reach the point of error concerning damages. The cause is reversed and remanded to the trial court.

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Larry MEURER, Appellant, v. Christine Meurer WHEELER, Appellee. No. 8457. Court of Civil Appeals of Texas, Amarillo. April 22, 1974. Rehearing Denied May 20, 1974. A. W. Salyars and Joyce M. Hill, Lubbock, for appellant. Jimmy L. Browning, Breckenridge, for appellee. REYNOLDS, Justice. Defendant’s plea of privilege in this suit for change of custody of minor children was sustained; the cause was ordered transferred from Lubbock County to Shackelford County. Affirmed. Previously, plaintiff Larry Meurer and defendant Christine Meurer Wheeler were husband and wife. Upon their divorce in October of 1968, custody of their two minor children was awarded to defendant during the school term of each year and to plaintiff during the summer months. A subsequent change of custody suit initiated by plaintiff in 1972 resulted in a modified order vesting permanent custody in defendant and granting temporary custody to plaintiff for one-half of the summer vacation from school. Pursuant to the order, plaintiff was given possession of the children on or about June 15, 1973, at the Midland, Texas residence of defendant and her husband, Allen R. Wheeler, and he returned with them to his residence in Lubbock. While the children were in his custody in Lubbock, plaintiff filed this suit for a change of custody on July 27 in the 140th District Court of Lubbock County. On the same day, without notice to defendant, a temporary restraining order was entered, placing immediate custody of the children in plaintiff and restraining defendant from interfering with plaintiff’s custody pending further court orders. In the same order provision was made for a hearing on August 6 to determine the matters of temporary custody and restraint during the pendency of the suit. Service of plaintiff’s petition and the temporary restraining order was had on defendant at Albany in Shackelford County on August 3. The hearing set for August 6 was not held; but, on August 7, the temporary restraining order was extended, and a hearing thereon was set for August 16. The August 16 hearing, at which time defendant had not answered and did not appear either personally or by counsel, produced an order directing that temporary custody of the minor children continue in plaintiff and that the temporary restraining order continue in force until trial could be had on the merits. On October 29, defendant filed her plea of privilege to be sued in Shackelford County, her alleged place of residence then and at the time of the institution of the suit. In contravention of the plea, plaintiff relied upon the unknown-residence-of-defendant provision of Vernon’s Ann.Civ. St. art. 1995, subdivision 3, as the appropriate exception to the basic venue rule for maintenance of the suit in Lubbock County. To establish that defendant’s residence was unknown to him at the time he filed the petition for change of custody, plaintiff depended chiefly on a telephone conversation he had with defendant’s husband, Allen Wheeler, in July of 1973. Wheeler apparently placed the call and, according to plaintiff, indicated that he did not know where defendant was and that he could not take care of the children. Plaintiff further testified that he tried without success to contact defendant’s sister and also talked with Wheeler a number of times in attempting to locate defendant’s whereabouts, but that he was unable to locate defendant. In addition, plaintiff noted the testimony of defendant that she had moved some five times during the ten month period prior to the institution of this suit. On the other hand, Wheeler’s version of the above-mentioned telephone conversation was that he told plaintiff that defendant was in Albany with her mother, and that they were going to move to Albany. Defendant testified that she moved to Albany on July 21 and temporarily resided with her mother to secure her care because of defendant’s illness from pregnancy. Wheeler, who said he had arranged for a job in Albany that would not be available for more than a month, remained in Midland to work until August 28, when he joined defendant in Albany. Further, defendant submitted that the proof that plaintiff had her cited in Albany is additional evidence that plaintiff was not unaware of where she was residing. The court sustained the plea of privilege. Plaintiff has appealed on three points of error. Initially, plaintiff contends that the evidence conclusively established that the residence of defendant was unknown to plaintiff at the time thq petition for change of custody was filed. We cannot agree. The rule first stated in Brown v. Boulden, 18 Tex. 432 (1857), and later applied to subdivision 3 of the venue statute in Pan American Sign Company v. J. B. Hotel Company, 403 S.W.2d 548 (Tex.Civ.App.—Dallas 1966, no writ), is that a plaintiff must exercise reasonable diligence to ascertain the defendant’s residence. In considering plaintiff’s testimony, the trial court, as was stated in Pan American Sign Company v. J. B. Hotel Company, supra, “may have concluded that appellant failed to exercise the reasonable diligence” required. Moreover, the conflicting testimony as to the substance of the telephone conversation between plaintiff and Wheeler created an issue of fact which the court as trier of the facts was free to resolve. Defendant’s evidence, if believed by the court, is sufficient to support the implied finding that plaintiff in fact knew where defendant was at the time the suit was filed. If the evidence is conflicting and there exists in the record evidence of sufficient probative force to support the judgment of the trial court, then that judgment should not be disturbed. Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97 (1953). Accordingly, plaintiff’s first point of error is overruled. Secondly, plaintiff urges that there was no evidence or insufficient evidence to establish that defendant’s residence was in Shackelford County at the time the suit was filed. When defendant filed her plea of privilege for removal of the suit to Shackelford County, it became prima facie proof of her right to a change of venue. Rule 86, Texas Rules of Civil Procedure. In order for a plaintiff to retain venue in the county of suit, it must be clearly shown that the case comes within some well-defined statutory exception to the basic venue rule that a defendant has a right to be sued in the county of his residence. Shaw v. Allied Finance Company, 161 Tex. 88, 337 S.W.2d 107 (1960). An attack upon a verified plea of privilege regular on its face does not come within any statutory exception to the general rule of venue. In Blackmon v. Esmond, 387 S.W.2d 72 (Tex.Civ.App.—El Paso 1965, no writ), the plaintiff attempted to defeat the defendant’s plea of privilege, not by proof of an applicable statutory exception to the general venue rule, but by proof adduced at the venue hearing that the defendant’s residence was not as it was sworn to be in the plea of privilege. The court determined that under Rule 86, T.R.C.P., and the decisions thereunder, this “novel theory” should not be allowed to stand. To give credence to the position plaintiff takes here would mean the engrafting of another exception to the venue rule which, under the rationale of Union Bus Lines v. Byrd, 142 Tex. 257, 177 S.W.2d 774 (1944), is unauthorized. Plaintiff’s second point of error is overruled. Thirdly, plaintiff asserts that defendant’s plea of privilege was erroneously sustained because at the time the suit for change of custody was filed, the minor children were in the legal and actual custody and possession of plaintiff in Lubbock County, the proper county of venue for this action. This assertion is based on the rule employed in Hollingsworth v. Hollingsworth, 441 S.W.2d 619 (Tex.Civ.App.—Amarillo 1969, no writ), that venue in an action for change of custody of minors lies in the county of residence of the person having legal custody. That rule is applicable to the facts of the instant case, but the applicability is contrary to plaintiff’s declaration. The custodial rights claimed. by plaintiff are those granted in the temporary order of custody entered in August of 1973. Nevertheless, pursuant to the modified divorce decree in 1972, the defendant is the permanent legal custodian of the children until such time as a permanent change in custody is ordered; and her right to be.sued in the county of her residence in the custody matter cannot be defeated by entry of an ex parte stay order. Houseman v. Mahin, 390 S.W.2d 732 (Tex.1965). Thus, the application of the rule in Hollingsworth sustains defendant’s plea to the venue. The third point of error is overruled. The judgment is affirmed. . All dates hereafter mentioned are in the year 1973 unless otherwise noted. . This subdivision reads as follows: “3. Non-residents; residence unknown.— If one or all of several defendants reside without the State or if their residence is unknown, suit may be brought in the county in which the plaintiff resides.”

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Helen NOHRA, by next friend, Dr. Herbert Nassour, Appellant, v. James T. EVANS et al., Appellees. No. 12086. Court of Civil Appeals of Texas, Austin. May 1, 1974. Ronald J. Freeman, Byron Lockhart, Austin, for appellant. William S. Frank, Houston, for appel-lees, O’QUINN, Justice. Appellant brought this suit by next friend seeking to annul a deed and other instruments, through which appellees acquired title to eight parcels of real property, and alleged as ground for rescission her lack of mental capacity to execute the instruments. Upon a verdict, in which the jury failed to find that appellant lacked mental capacity to make the instruments, the trial court entered judgment that appellant take nothing by her suit. Appellant brings the sole point of error that in charging the jury the court failed to submit a definition of mental capacity to include as one of the elements the ability of a person to exercise his or her will. Decision in this appeal turns on whether appellant was entitled to the requested definition of mental capacity as follows: “The term ‘mental capacity’ means the ability of the person involved to appreciate the effect of what he or she was doing, to understand the nature and consequences of his or her acts and the business he or she was transacting, and to exercise her will in relation thereto.” (Emphasis added) The definition requested is identical with the definition submitted by the court, except the final clause, as italicized, added by appellant. As stated by appellant, the basis for error is not a contention “. . . that the jury’s answers are contrary to the evidence in this case. Rather, Appellant complains only that the instructions . . . [defining] the term ‘mental capacity’ were incomplete in that the Trial Court failed to include therein the element of will, and, therefore, did not bring to the attention of the jury in their considerations, that element and the evidence relating thereto.” The position of appellant stems from the claim that the maker of the instruments was “suffering from the mental illness of manic-depressive,” and that the test of understanding, or consciousness, is insufficient, without enlarging the test to include the element of volition, or will, of the person making the instrument. “The testimony in this case,” appellant argues, “shows that manic-depressives in general, and this appellant in particular, suffer volitional impediments as a result of the mental disease with which they are afflicted.” A medical witness testified that a person who is manic-depressive, while in the depressed stage, becomes “lethargic,” and that the afflicted person’s “judgment is faulty and impaired as far as his intentions and motives” are concerned; that in all probability, while in the depressed stage, such patients will understand what they are doing, but will be out of touch with reality because the disease will “distort their will.” Two members of appellant’s family, shown by the record to have been present on the occasions when appellant executed the contract, the deed, and the deed of trust, testified that appellant was a shrewd businesswoman, hut that at the time she executed the documents she was depressed and was “very susceptible to suggestion” and that on the dates appellant signed the papers “she would have signed anything you told her to sign.” The witnesses also testified that appellant did not bother to read any of the documents and although she understood what she was doing, appellant did not care. In her fourth amended original petition, on which she went to trial, appellant pleaded that “For more than ten years Plaintiff has been experiencing a form of mental illness which has been medically diagnosed as a manic-depressive illness. * * * * As a result of this illness, Plaintiff experiences recurring periods of depression during which her ability to reason, relate, and focus on problems and reach decisions is significantly impaired. During these periods of depression, Plaintiff lacks the ability to understand and appreciate the nature and consequences of her actions as •well as the ability to exercise her will in relation to her actions. It was while Plaintiff was in such . . .” periods of depression that Defendants secured Plaintiff’s signature on the instruments which Plaintiff by this suit seeks to cancel. (Emphasis added) The trial court, in instructing the jury, employed the definition of mental capacity found in numerous decisions in this state. “The general definition of the term ‘mental capacity’ seems to contemplate the ability to understand the nature and effect of the act in which a person is engaged and the business he is transacting.” Gray v. Allen, 243 S.W. 684, 686 (Tex.Civ.App. San Antonio 1922, writ dsmd.); Cole v. Waite, 151 Tex. 175, 246 S.W.2d 849, 850, 852, affirming, 242 S.W.2d 936 (Tex.Civ.App.1952). Essentially the same rule was stated earlier that if the grantor of a deed “was laboring under such mental and physical infirmity as to make him incapable of understanding in a reasonable manner the nature and effect of the act he was doing,” the instrument was void, the record showing also want of consideration. Caddell v. Caddell, 62 Tex.Civ.App. 461, 131 S.W. 432 (Texarkana 1910, no writ). See also Johnson v. Johnson, 191 S.W. 366, 368 (Tex.Civ.App. Texarkana 1916, no. writ); Board of Regents of the University of Texas v. Yarbrough, 470 S.W.2d 86, 90 (Tex.Civ.App. Waco 1971, writ ref. n. r. e.); Hooks v. Brown, 348 S.W.2d 104, 126 (Tex.Civ.App. Austin 1961, writ ref. n. r. e.). A definition employing the phrase “mind and memory” has been approved frequently. In Burleson v. Morse, 172 S.W.2d 361, 363 (Tex.Civ.App. Galveston 1943, writ ref. w. o. m.), the approved definition read, “By the term ‘mental capacity’ is meant the possession of sufficient mind and memory to understand the nature and effect of her act in executing the notes inquired about.” Similar definitions, each employing the term “mind and memory,” were approved in Pollard v. El Paso National Bank, 343 S.W.2d 909, 913 (Tex.Civ.App. El Paso 1961, writ ref. n. r. e.); Haile v. Holtzclaw, 400 S.W.2d 603, 612 (Tex.Civ.App. Amarillo 1966, rev. on other grounds 414 S.W.2d 916); Klindworth v. O’Connor, 240 S.W.2d 470, 475 (Tex.Civ.App. Dallas 1951, writ ref. n. r. e.); Jackson v. Henninger, 482 S.W.2d 323, 325 (Tex.Civ.App. Austin 1972, no writ). But a definition incorporating the additional phrase “to intelligently” understand the nature and effect of the act has been disapproved. Smith v. Thornhill, 34 S.W.2d 803, 804 (Tex.Comm.App.1931); Wright v. Matthews, 130 S.W.2d 413 (Tex.Civ.App. San Antonio 1939, writ dsmd. jmt. cor.). In her contention that in addition to the test of “understanding” the trial court should have included the element of exercising “her will in relation” to the act of executing the written instruments, appellant relies in the main on decisions in five cases: Herndon v. Vick, 18 Tex.Civ.App. 583, 45 S.W. 852 (Galveston 1898, writ dsmd.); Farmers’ State Bank v. Farmer, 157 S.W. 283 (Tex.Civ.App. Amarillo 1913, no writ); Stewart v. Miller, 271 S.W. 311 (Tex.Civ.App. Waco 1925, writ ref.); Garrison v. Blanton, 48 Tex. 299 (1877), and Bell v. Bell, 237 S.W.2d 688 (Tex.Civ.App. Amarillo 1951, no writ). We direct our examination and analysis of these authorities to the first three cases only. We do not include Garrison v. Blanton in our analysis for the reason that the mental capacity of the testatrix in that case was unrelated to insanity or mental illness, but was “a stupor produced by extreme illness, and morphine administered as a medicine.” (48 Tex. 301) In Bell v. Bell, despite an early reference to “free volition” of the testator, the court applied the test that, “Under all the facts and circumstances . . . the deceased was cognisant of the property he possessed, recognized the objects of his bounty and understood the act he was performing” (Emphasis added), and decided the jury’s finding that the testator, who was elderly and sick, did not have sufficient capacity to make a will was against the great preponderance of the evidence. The basis for appellant’s contention stems from approval in 1898 by a court of civil appeals of a charge given a jury by the trial court in the case of Herndon v. Vick (45 S.W. 853, col. 1). In that case Andrew J. Vick brought suit against a number of persons to establish his title to 400 acres out of the William Vince League in Harris County. A. C. Herndon, as the guardian, in Texas, of the estate of Frederick Cole, who had been declared non compos mentis in the State of Maine, answered with a claim, in behalf of his ward, to “the lower half of the Vince league.” Vick’s claim to the land was grounded on adverse possession and perfection of limitation title, unless his title was defeated as to Frederick Cole by the fact of Cole’s insanity. The trial court asked the jury, “Has said Frederick been, since and on March 30, 1870, to within less than five years before suit herein, a person of unsound mind?” In this connection the court instructed the jury that: “The law is that limitation does not run against a person of unsound mind, such disability forming an exception; yet, although the mind of a person may be to some extent impaired by disease, still if such person had the ability to transact the ordinary affairs of life, to understand their nature and effect, and to exercise his will in relation to them, he is not deemed of unsound mind, in the sense of the law.” (Emphasis added) The trial court gave essentially the same instruction in connection with the jury’s opportunity to find the negative; that is, that Frederick Cole was not of unsound mind. On appeal Herndon, as Cole’s guardian, contended that the evidence did not warrant submission to the jury the issue of Frederick Cole’s unsoundness of mind because it was shown at the trial that judicially Cole had been declared non compos mentis in Maine and no evidence was offered to show a change in Cole’s condition. The court of civil appeals agreed and held that it was error for the trial court to submit the issue which had been established prima facie sufficient and had not been rebutted. The judgment of the Maine court was effectual, the court held, “. . . to fix the condition [of Cole’s mind], and affords evidence of its existence, and hence of its continuance until rebutted. Elston v. Jasper, 45 Tex. 409.” But the appellate court nevertheless observed, without citing authority in support of the statement, that .“The charge states accurately the law applicable to the issue, if it was right for it to be submitted in this way to the jury.” (Emphasis added) The court held that it was not right to submit the issue to the jury in that way and reversed the judgment of the court below. Fifteen years later, in 1913, the definition first announced in Herndon v. Vick was repeated in Farmers’ State Bank of Quanah v. Farmer (157 S.W. 286, col. 1). The court there stated, “As we understand the rule bearing upon this issue, it seems to be that the test of the capacity of one to execute a valid conveyance is that such individual must have the ability, not only to transact the ordinary affairs of life, and to understand their nature and effect, but also to exercise his or her will in relation thereto. (Emphasis added) Herndon v. Vick, 18 Tex.Civ.App. 583, 45 S.W. 852; 22 Cyc. 1170.” It will be noted that, in addition to Herndon v. Vick in which the rule was not supported by any authority, the court in Farmer relied on “22 Cyc. 1170.” The rule as stated by that authority does not incorporate the element of exercising the will: “If a person, at the time of making a conveyance, has sufficient capacity fully to comprehend the nature and effect of the act, the conveyance is valid; but if the grantor has not capacity equal to a full and clear understanding of the nature and consequences of the act, the conveyance is invalid.” 22 Cyclopedia of Law and Procedure, Insane Persons, Sec. IV(B), p. 1170. No issue relating to an instruction to the jury on mental capacity was before the appellate court in Farmers’ State Bank v. Farmer. The controlling questions, as stated by the court, were: (1) were the lots conveyed a business homestead, and (2) were the lots the separate property of the wife and was she at the time of conveyance mentally incapacitated ? The court found that the evidence upon either theory was sufficient to support the judgment. Twelve years later the test first found in Herndon v. Vick in 1898 made its second and last reappearance in case law of this state. In 1925, Stewart v. Miller, supra, (271 S.W. 315, col. 1), the court of civil appeals said: “Mrs. Miller’s capacity to execute the deeds involved herein depends on her ability at the time to understand the nature and effect of her action and to exercise her will in relation thereto. (Emphasis added) In determining this issue, evidence of her mental and physical condition both before and after such execution may be considered. Farmers’ State Bank v. Farmer (Tex.Civ.App.) 157 S.W. 283, 286; Caddell v. Caddell, 62 Tex.Civ.App. 461, 131 S.W. 432, 434; 18 C.J. p. 218, sec. 131, Id. p. 221, sec. 134.” Immediately following this statement the court, addressing itself to determination of whether the issue of Mrs. Miller’s mental capacity should have been submitted to the jury, continues in this language: “If the evidence tending to show that Mrs. Miller was not at the time mentally capable of understanding the nature and effect of her act in executing said deeds, standing alone and uncontradicted, was sufficient to support a finding of incapacity, the court erred in instructing a verdict for defendants.” (271 S.W. 315, col. 2) (Emphasis added) The test so stated is clearly without the additional element that she must “exercise her will in relation thereto.” From this point the court considered the question of undue influence, an additional issue in the case and one in which the element of exercising “her will in relation” to execution of the deeds becomes a determining issue. It therefore appears that the court’s initial inclusion of the element of volition had reference to the issue of undue influence, whereas the first portion alone of the statement was directed to the issue of mental capacity. This conclusion is fully supported by the authorities cited at that point by the court. In Caddell v. Caddell, supra, there cited, the test briefly stated is, “ . . . it is also a correct principle of law that such conveyance is void . . . where at the time of its execution the grantor was laboring under such a degree of mental infirmity as to make him incapable of understanding in a reasonable manner the nature and effect of the act he was doing. 2 Pomeroy, Eq.Jur. sec. 947 . . . ” In addition, the court cited two sections from Corpus Juris in which the definition of mental capacity is found in language strikingly similar: “. . .to render a deed void on this ground [mental incapacity] it should appear that the grantor was laboring under such a degree of men: tal infirmity as to make him incapable of understanding the nature of the act, the test being not merely that the grantor’s mental powers were impaired, but whether he had sufficient capacity to understand in a reasonable manner the nature and effect of the act which he was doing.” (18 C.J. p. 218, sec. 131) The same test is repeated in 26 C.J.S. Deeds, § 54b, p. 721, with Stewart v. Miller cited as authority in footnote 74. The analysis just concluded confirms our determination that no authority is found in case law of this state for adding to the definition of mental capacity, already established in our jurisprudence, the additional element that a grantor in making a conveyance must have the ability at the time to exercise his or her will in relation to the act. No contention is made in this case that appellant was overwhelmed by duress, or misled by fraud, or that undue influence in any manner was exerted, to induce her to execute the deed and other instruments by which title was transferred from her to other persons. Appellant points out that “This appeal, and the question herein presented, is unique in the history of the Texas decisions in regard to mental capacity. Never before has it been brought to the attention of the Texas courts that in the specific case of, the manic-depressive illness, the issue of mental capacity must necessarily include not only the element of ‘understanding’, but also the element of ‘volition’.” We interpret appellant’s position to be that although the jury had the opportunity to consider whether appellant was able to understand the nature and consequences of her acts, the jury was denied, because ¿>f the limited instructions given, the opportunity to consider whether by reason of her mental illness appellant was unable to act in a reasonable manner at the time she made the instruments. We do not understand appellant to urge that because there was proof that she was a manic-depressive, and was in a manic or depressed state when each instrument was signed, her acts as a matter of law were void, or voidable, but only that appellant was entitled to a finding by the jury as to whether she executed the writings because she lacked the ability to exercise her will in relation to her act, as a result of her mental illness. Enlargement or extension of the traditional test of mental capacity has been allowed in Texas in instances of insane delusions in cases involving the making of wills. Prather v. McClelland, 76 Tex. 574, 13 S.W. 543 (1890); Rodgers v. Fleming, 3 S.W.2d 77 (Tex.Comm.App.1928); Knott v. Jensen, 27 S.W.2d 624 (Tex.Civ.App. Amarillo 1930, writ dsmd.). But submission of insane delusions by separate special issue has been disapproved, and where the evidence raises the issue of insane delusions, the trial court has the duty to define mental incapacity in view of such evidence. Ferguson Seed Farms v. McMillan, 18 S.W.2d 595 (Tex.Comm.App.1929). See also Small v. Taylor, 54 S.W.2d 151 (Tex.Civ.App. Austin 1932, no writ); Lindley v. Lindley, 384 S.W.2d 676, 679 (Tex.Sup.1964). An insane delusion is defined as a belief of a state of supposed facts that do not exist, and which no rational person would believe. Knight v. Edwards, 153 Tex. 170, 264 S.W.2d 692 (1954). A mere misunderstanding or a mistake of fact, or an illogical conclusion, would not constitute an insane delusion. Navarro v. Rodriguez, 235 S.W.2d 665, 667 (Tex.Civ.App. San Antonio 1950, no writ). In this case we are urged to extend the established rule beyond the test of understanding, or cognition, to encompass motivation, or exercise of will, on the theory that appellant acted under compulsion of a mental disorder but for which the writings would not have been executed. As observed earlier, no court in this state has approved a test for mental capacity other than under the cognitive standard, except as the rule has been enlarged in will cases to include insane delusions when delusions are shown to be intimately related to the making of a will. Thus we arrive at the point of deciding whether the traditional standard governing competency to contract fails to account for the person who, because of mental illness, lacks the ability to control his or her conduct, even though the ability to understand appears to be unimpaired. We believe that the understanding test does fail to afford the finder of facts the opportunity to determine whether a person who is mentally ill, having met the standard of cognition, nevertheless lacks the ability to control his conduct, at the time the contract was made, because of his mental affliction. Only within the twentieth century have developments in the science of mind and mental behavior made it clear that all mental faculties are not simultaneously affected by mental illness, the contrary being a belief held by the courts during the years in which the cognitive standard evolved and became established. Green, Mental Incompetency, 38 Mich.L.R. 1189, 1197-1202; Comment, Mental Illness and the Law of Contracts, 57 Mich.L.R. 1020, 1033-1036. It was in the case of a manic-depressive psychotic in 1963 that a court in New York found that application of either the understanding test or the insane delusion test would result in excluding the manic-depressive. The court rejected the two traditional tests in favor of a motivational standard. Faber v. Sweet Style Mfg. Corp., 40 Misc.2d 212, 242 N.Y.S.2d 763 (1963). There the court stated that incompetence “ . . .to contract also exists when a contract is entered into under the compulsion of a mental disease or disorder but for which the contract would not have been made.” The decision has met with favorable reception in legal journals and has been examined without disapproval by at least one other court. It is recognized under this decision that with “workability of the motivational standard” proved, there remains no valid reason to exclude the manic-depressive from the category of persons incompetent to contract, although medical diagnosis of the illness should not result in automatic avoidance, for “. . . such a showing should merely entitle the manic to have the court decide whether he was in fact ill and whether a found illness was sufficiently connected to the transaction to warrant rescission.” Note, Competency to Contract, 39 N.Y.U.L.R., 356, 363. The decision in Faber was followed in 1969 by adoption of the test of competency to contract as found in the Restatement of Contracts. Ortelere v. Teachers’ Retirement Board of New York, 25 N.Y.2d 196, 303 N.Y.S.2d, 362, 250 N.E.2d 460 (1969). The court in Ortelere quoted from the decision in Faber and observed that in the earlier case for “ . . . the first known time a court has recognized that the traditional standards of incompetency for contractual capacity are inadequate in light of contemporary psychiatric learning and applied modern standards.” (303 N.Y.S.2d 368, 250 N.E.2d 465) The standard found in the Restatement provides: “A person incurs only voidable contractual duties by entering into a transaction if by reason of mental illness or defect (a) he is unable to understand in a reasonable manner the nature and consequences of the transaction, or (b) he is unable to act in a reasonable manner in relation to the transaction and the other party has reason to know of his condition.” Restatement (Second) of Contracts, sec. 18C(1), Tent, Draft No. 1, 1964. The court in Ortelere repeated the following recommendation found in 57 Mich. L.R. 1020, 1036, supra: “ . . . a complete test for contractual incapacity should provide protection for those persons whose contracts are merely uncontrolled reactions to their mental illness, as well as for those who could not understand the nature and consequences of their actions.” It is noted that the decisions in Ortelere and in Faber have been examined in legal journals and found to be a significant movement toward more equitable results in contract cases involving the mentally ill. See 45 N.Y.U.L.R. 585 (1970); 16 Wayne L.R. 1188. A California court in 1968 examined the results in Faber and reviewed the law review articles dealing with the problem, but decided that because California statutes which categorize incompetence have been interpreted by the decisions to establish the “cognitive test as the prevailing standard of legal competency,” the rule in Faber could not be employed. Smalley v. Baker, 262 Cal.App.2d 824, 69 Cal.Rptr. 521, 528-529 (1968). We are of the view that a test similar to that approved in Faber and in Ortelere is appropriate in Texas when the facts justify an instruction to include both th'e cognitive standard and the element of motivation or volition. We are not in agreement with all the results and implications of those decisions. We do not have before us, and therefore do not pass on, questions relating to determination of equities between the parties, nor the question of knowledge, or reason to know, on the part of persons dealing with the mentally ill person. We hold only that it was proper for the trial court to give the instruction, or one having substantially the same meaning and effect, which appellant requested, and that its refusal by the trial court was error. The judgment of the trial court is reversed, and the cause is remanded for a new trial. Reversed and remanded. SHANNON, Justice (dissenting). I respectfully dissent. The court in its charge defined mental capacity as “ . . . the ability of the person involved to appreciate the effect of what he or she was doing, to understand the nature and consequences of his or her acts and the business he or she was transacting.” The definition is supported by Texas authority. Gray v. Allen, 243 S.W 684 (Tex.Civ.App.1922, writ dism’d); Cole v. Waite, 151 Tex. 175, 246 S.W.2d 849, affirming, 242 S.W.2d 936 (Tex.Civ.App.1952). Appellant insists that the phrase, “ . . . and to exercise her will in relation thereto,” should have been included in the court’s definition. As stated by the majority opinion, “ . . .no authority is found in case law of this state for adding to the definition of mental capacity, already established in our jurisprudence, the additional element that a grantor in making a conveyance must have the ability at the time to exercise his or her will in relation to the act.” I would affirm the judgment. . Plaintiff below, appellant here, is Helen Nohra, appearing by Dr. Herbert Nassour as her next friend; defendants below, all of whom are appellees here, are James T. Evans, J. Monty Bray, and William S. Prank, residents of Harris County, Mercantile Pi-nancial Corporation, a Texas Corporation with its principal place of business in Lubbock County, and Santone Sales Company, Inc., a Delaware Corporation, with its principal place of business in Bexar County.

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David TUCK et ux., Appellants, v. Richard TUCK, Appellee. No. 12093. Court of Civil Appeals of Texas, Austin. May 8, 1974. Rehearing Denied May 29, 1974. Henry Taylor, Jr., Taylor, Taylor & Gauntt, Temple, for appellants. Rodger M. Zimmerman, San Marcos, for appellee. SHANNON, Justice. Appellee, Richard Tuck, filed suit against his brother and sister-in-law, David and Lenda Tuck, appellants, to cancel a written agreement to pay them $52,000. Upon trial to a jury, the district court of Bell County entered judgment cancelling the agreement. We will affirm that judgment. Appellee pleaded that appellants agreed orally to lend him $20,982.53 to open and operate a beauty school in San Marcos. Appellee alleged further that until that sum had been repaid, the operation of the school, the lease of the building in which the school operated, and the license to operate the school were to stand in the name of appellant, David Tuck. Upon payment, the license, the lease, and all assets of the operation were to become the property of appellee. Appellee commenced the beauty school operation and began payment of the obligation to appellants. Appellee pleaded that, thereafter, appellants by threats and duress compelled him to enter into a written agreement to pay them $52,000 instead of $20,982.53. Appel-lee averred further that he had paid the sum of $20,982.53, but that appellant refused to transfer the license and the lease to appellee. In response, appellants filed a general denial. The case was submitted to the jury on special issues and the jury answered that appellants and appellee had entered into the oral agreement. Under the agreement, appellee was to pay appellants $20,982.53, and the jury answered further that appel-lee had paid that sum to appellants. The jury answered further that appellee entered into the written agreement of June 8, 1970, by reason of duress exerted upon him by appellant, David Tuck, and that the written agreement was not supported by consideration. The refusal of the court to permit the filing of a proposed trial amendment and to submit certain requested special issues is appellants’ complaint on appeal. The case proceeded to trial on February 26, 1973, and the testimony was completed and the parties rested before noon on February 27. At that time, the court recessed the jury until after lunch and requested the respective attorneys to supply him with their requested special issues. Appellants tendered only one requested special issue which the court subsequently recast as one of the definitions in the charge. During the noon recess the court prepared the charge, and then submitted it to counsel for their examination. It was at that time that appellants’ counsel tendered five more special issues requesting that they be included in the charge. In connection with the tardy tender of the requested special issues, the court stated to appellants’ counsel, “I am really curious, counsel, as to why you were reluctant to offer these „to me so that they could be included in the main charge. Was it because you would like a little time or are we just playing games or why did not not want me to have an opportunity to include these in the main charge at the time it was drawn?” The response of appellants’ counsel to the court’s inquiry was, in effect, that it was not incumbent upon appellants to tender their requested special issues until such time as the court had prepared the charge and submitted it to the attorneys for examination. The scope of inquiry encompassed by the tendered special issues was broad, including an issue asking whether the oral agreement was “merged” with the written agreement. Other requested special issues made inquiry whether appellee had “ratified” the written agreement, and whether appellee had failed to “promptly rescind” the written agreement, and whether such failure constituted a “waiver” of appellee’s right to rescind. Another requested issue asked whether appellant David Tuck was to receive ten percent of the net profit of the operation of the beauty school. We are not called upon to pass upon the form or suitability of the requested issues. Counsel for appellee objected to the tender of the requested special issues for the reason, in part, that there was no pleading to support their submission. In response, counsel for appellants stated, “If the Court so chooses, we would at this time request, under the auspices of Rule 66 of the Texas Rules of Civil Procedure, to file a trial amendment to make the pleadings conform to the issues which are to be submitted.” The court refused the trial amendment so proposed. Tex.R.Civ.P. 66 provides: “If evidence is objected to at the trial on the ground that it is not within the issues made by the pleading, or if during the trial any defect, fault or omission in a pleading, either of form or substance, is called to the attention of the court, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the allowance of such amendment would prejudice him in maintaining his action or defense upon the merits. The court may grant a postponement to enable the objecting party to meet such evidence.” The matter of granting leave to file a trial amendment is addressed to the sound discretion of the trial court, and the court’s order thereon will not be set aside in the absence of a clear showing that the court abused its discretion. Patino v. Texas Employers Insurance Association, 491 S.W.2d 754 (Tex.Civ.App.1973, writ ref’d n. r. e.). It is not an abuse of discretion to deny leave to file an amendment which Would change the factual basis of the lawsuit and probably prejudice the opposite party in maintaining his action or defense. Westinghouse Electric Corp. v. Pierce, 153 Tex. 527, 271 S.W.2d 422 (1954). Appellants’ trial pleading consisted of a general denial. Except in proceedings not here involved, a party is not entitled to an affirmative submission of any issue in his behalf where such issue is raised only by a general denial and not by an affirmative written pleading. Tex.R.Civ.P. 279. By reason of Rule 279, and in the absence of a trial .amendment, appellants were not entitled to the submission of their requested issues. It is clear that appellants showed no diligence or excuse for their failure to have their pleadings in order. In fact, counsel for appellants claimed, almost to the last, that no additional pleadings were necessary to support the submission of the requested issues. The statement of facts does not show that counsel for appellants made known to the court the contents of the proprosed trial amendment. Likewise, the transcript does not contain the proposed trial amendment. Under the circumstances, ap-pellee was hardly in a position to show prejudice under Rule 66 since he was not acquainted with the exact contents of the amendment. If we assume that the trial amendment which appellants desired to file would encompass all of the requested special issues, should we also assume that ap-pellee would have at hand the necessary testimony to reopen and proceed to meet appellants’ newly pleaded defenses? See Century Rental Equipment v. Neo-Flasher Mfg. Co., 378 S.W.2d 957 (Tex.Civ.App.1964, no writ). Appellants rely primarily upon the authority of Vermillion v. Haynes, 147 Tex. 359, 215 S.W.2d 605 (1948), and Aubin v. Hunsucker, 481 S.W.2d 952 (Tex.Civ.App.1972, writ ref’d n. r. e.) for the proposition that the refusal of the court to permit the filing of the trial amendment was an abuse of discretion. We do not regard those cases as controlling in the disposition of this appeal. In both of those cases the trial amendments sought only to assert a defense in law in trials before the court to facts already established, and did not seek to change the factual basis of the lawsuit. Westinghouse Electric Corp. v. Pierce, supra. In the instant case, had the court permitted the proposed trial amendment, the appellee, most probably, would have had to reopen and present new evidence, at least with respect to his diligence in seeking to set aside the written agreement. To require the trial court to permit amendments such as the one proposed would disrupt orderly procedure and lead to interruptions and delay in concluding expensive jury trials. Westinghouse Electric Corp. v. Pierce, supra. Under the circumstances, we are of the opinion that an abuse of discretion has not been shown. The judgment is affirmed. . Under similar facts, there is authority for the proposition that under these circumstances the record shows no error. Century Rental Equipment v. Neo-Flasher Mfg. Co., 378 S.W.2d 957 (Tex.Civ.App.1964, no writ), American Pozzolan Corporation v. Desert Trucking Co., 450 S.W.2d 433 (Tex.Civ.App.1970, writ ref’d n. r. e.).

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KELLY, WALKER & LILES, Appellant, v. Tom I. McFARLING, receiver for Pioneer Casualty Company, Appellee. No. 12100. Court of Civil Appeals of Texas, Austin. May 8, 1974. Rehearing Denied May 29, 1974. Fred S. Stradley, Vial, Hamilton, Koch, Tubb, Knox & Stradley, Dallas, for appellant. James R. Irion, III, Austin, for appellee. O’QUINN, Justice. Appellant is a partnership of lawyers who were attorneys defending assureds of Pioneer Casualty Company, against claims made against the policyholders, under terms of coverage under automobile liability policies issued by Pioneer. The law firm incurred expenses, and was entitled to payment for legal services, to the extent of $52,297.13 in defense of more than sixty claims prior to the date Pioneer Casualty was placed in permanent receivership by a district court of Travis County on October 14, 1970. The attorneys filed their claim with the Receiver for Pioneer, who approved the claim but placed the law firm in the class of general unsecured creditors. Appellant brought suit in district court, and the trial court sustained the ruling of the Receiver. The only question on appeal is whether appellant is a prior or preferred creditor for legal services rendered before permanent receivership under the provisions of Article 21.28-B, known as the Loss Claimant’s Priorities Act, V.A.T.S. Insurance Code (as added by Acts 1967, 60th Leg., p. 431, ch. 196, sec. 1). We will affirm judgment of the trial court that appellant is not a preferred creditor' under the Loss Claimant’s Priorities Act. Appellant contends tljat under the definition of “loss claim” in the Loss Claimant’s Priorities Act the law firi^i was included as “other persons” or as “a third party beneficiary” for a loss arising Within the terms of coverage provided by the contract of insurance. The definition provides: “As used in this Article, loss claim is the claim of an insured, a third party beneficiary, or any other person entitled thereto, under a contract of insurance or indemnification, for a loss arising within the terms of coverage provided in a contract of insurance or indemnification for an amount within the express limits of such insurance policy, but excluding a claim for unearned premium.” (Art. 21.28-B, sec. 3) Appellant argues that because under the basic automobile liability policy issued by Pioneer the insurer had the obligation to furnish defense to suits for damages as a part of the insurance afforded by the policy, attorneys employed to defend the insureds are “other persons”, if not in fact “third party beneficiaries”, for a loss arising within the terms of coverage provided by the contract of insurance. “But for the contract,” appellant says, “providing under the terms of coverage that the insurance carrier would furnish and pay for legal counsel, Appellant would not have been retained by Pioneer . to defend its insureds,” and insists that appellant “had the right and in fact did rely upon the terms of coverage that payment for legal services and expenses would be made by the insurance company. It is obvious that an attorney who spends time and money to be owed $52,297.13, and not to be paid, has incurred a loss. * * * Attorneys are other persons who sustain a loss under the terms of coverage when the legal fees and expenses are not paid. Appellant has been placed in this position and under Article 21.28-B . . . is a loss claimant under the terms of coverage and should be construed as a prior claimant.” In enacting the Loss Claimant’s Priorities Act in 1967, the Legislature stated the purpose of the Act at length: “Sec. 2. Purpose. — The purpose of this Article as amendatory of the Insurance Code is to provide for the protection of the person with a loss claim against an insurer subject to an insolvency, liquidation, or bankruptcy proceeding, by creating a preference in payment of his loss claim prior to, during or in respect of that proceeding. It is the sense of the Legislature that the purpose of insurance as an instrument of progress and as an invention of society is for the many to share the financial burdens of the few who suffer loss. An individual bands together with other individuals by the purchase of insurance to assure that the financial burdens incurred by his loss which he alone cannot bear will be shared by others; the private insurer accomplishes this purpose by collecting premiums from its policyholders for distribution to those policyholders who suffer a loss. The purpose for which private insurers exist and the reason for which an individual purchases insurance are defeated by the failure to give preference in the payment of loss claims over other claims. It is the purpose of this Article to establish a preference in the payment of the whole of the amount of loss claims against an insurer that is the subject of an insolvency, liquidation, or bankruptcy proceeding.” Appellant law firm was employed by Pioneer as part of the insurance company’s obligation to defend claims against its policyholders, and the policyholders were not called upon to bear the cost, or loss, that would have been incurred but for the furnishing of such legal services. We do not believe the Legislature intended to afford priorities to attorneys employed by tfie insurer under such contracts between the company and its lawyers. If the company failed to defend, and the policyholder was put to the expense of his own defense, the policyholder became the direct claimant, not only for the indemnity to which he was entitled, but also for the additional loss occasioned by the company’s failure to meet its obligation to defend. The pervading note of the “purpose clause” as quoted above is the relationship between the insured and the private insurer and the loss claims the policyholder may have against the insurer. There the Legislature significantly asserts, “The purpose for which private insurers exist and the reason for which an individual purchases insurance are defeated by the failure to give preference in the payment of loss claims over other claims.” In the case before us, we consider appellant’s claim to be among “other claims,” over which the insured’s claim has priority by reason of the Act. Appellant’s claim was properly held by the trial court to be in the class of general unsecured creditors and without the priority provided under the Act. The judgment of the trial court is affirmed.

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Caselaw Access Project

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CITY OF WICHITA FALLS, Appellant, v. STATE of Texas ex rel. Richard VOGTSBERGER, Appellee. No. 17503. Court of Civil Appeals of Texas, Fort Worth. May 3, 1974. H. P. Hodge, Jr., City Atty., Wichita Falls, for appellant. Paul Wylie, Archer City, and Douthitt & Mitchell, and Frank J. Douthitt, Henrietta, for appellee. OPINION BREWSTER, Justice. The trial court overruled the plea of privilege of the City of Wichita Falls seeking to have this case transferred to Wichita County for trial and the City is here appealing from that decree. The State of Texas, plaintiff, by and through the County Attorney of Archer County, Texas, at the relation of Richard Vogtsberger, filed this suit in the District Court of Archer County against the City of Wichita Falls. It was a quo warranto action and in the petition the plaintiff alleged that the defendant, City of Wichita Falls, was a resident of Wichita County, Texas. The plaintiff’s petition alleged in substance that the City of Wichita Falls enacted two annexation ordinances, No. 2756 and No. 2780, and that each of said annexation ordinances are illegal and void for the many reasons therein specified; and that the land annexed lay partly in Wichita County and partly in Archer County. It was further therein alleged that the expansion of the extraterritorial jurisdiction of the City by Ordinance No. 2756 amounted to a preemption of the entire area in which the extraterritorial jurisdiction is expanded and amounts to a taking of property without due process and therefore constitutes a cloud on the title to the real estate in the extraterritorial jurisdiction. The plaintiff’s prayer stated: “PREMISES CONSIDERED, Petitioner prays that upon final hearing this Court declare Ordinance 2756 and Ordinance 2780, enacted by the City of Wichita Falls, void as a matter of law; and for such other and further relief . . . .” In the controverting plea filed by the State of Texas, the plaintiff herein, it is alleged that the allegations in plaintiff’s petition show that the suit is one to remove a cloud on the title of land owned by the relator Vogtsberger in Archer County, and that venue was therefore maintainable in Archer County under Art. 1995, Subd. 14, Vernon’s Ann.Civ.St. The matter was tried on a stipulation wherein the parties agreed that the City of Wichita Falls had a population of between 50,000 and 100,000, and thus had an extraterritorial jurisdiction of 3.5 miles; that the territory annexed by Ordinance 2756 is partly located in Archer County and the strip annexed crosses the land of the relator, Vogtsberger, which land is located in Archer County, and that if the Ordinance is valid it extends the extraterritorial jurisdiction of Wichita Falls 3.5 miles in all directions from the boundaries of the tracts annexed. The City’s one point of error is that the trial court erred in overruling its plea of privilege and in holding that the suit could be kept in Archer County under Subd. 14, Art. 1995, V.A.C.S., on the theory that it is a suit to remove an incum-brance from the title to land. We sustain this point and reverse and render the decree appealed from. Whether venue is sustainable under Subd. 14, Art. 1995, V.A.C.S., in a county other than where the defendant resides, depends on the nature and character of the cause of action alleged. In determining the nature of the cause of action alleged the court must consider the petition as a whole, and from it determine the principal right asserted therein and the nature of the relief that is therein sought. See O’Quinn v. Dunagan, 227 S.W.2d 366 (El Paso, Tex.Civ.App., 1949, no writ hist.); Traweek v. Ake, 280 S.W.2d 297 (El Paso, Tex.Civ.App., 1955, no writ hist.); and Strain v. Neal, 312 S.W.2d 713 (El Paso, Tex.Civ.App., 1958, no writ hist.). The Supreme Court in Brown v. Gulf Television Company, 157 Tex. 607, 306 S.W.2d 706 (1957) has stated the rule as follows : “Where the venue depends on the nature of the suit, such venue is ordinarily determined by the nature of the principal right asserted and the relief sought for the breach thereof.” Our examination of the petition in this case leads us to the conclusion that the principal right asserted therein by the plaintiff, the State of Texas, is that the annexation ordinances being attacked are void and the relief sought therein by such plaintiff is a judgment declaring the two annexation ordinances to be void. Since this is true, venue in this case is not controlled by Subd. 14, Art. 1995, V.A. C.S., as was determined by the trial court. In this case venue would be determined by the general venue statute. The fact that a decree declaring the annexation ordinances to be void would, as an incident thereto, have the effect of removing all burdens that would be imposed on such lands being annexed by reason of being taken into the City does not alter the situation. This is true because it is the principal right asserted in the petition and the relief sought therein for the breach of such right that controls. The case of City of Grand Prairie v. State, 266 S.W.2d 184 (Fort Worth, Tex.Civ.App., 1954, no writ hist.) is very similar to this one and we are convinced that the holding there controls our decision in this case. That was a quo warranto action filed by the State of Texas, at the relation of one Crouch, in a District Court of Tar-rant County against the City of Grand Prairie, which was a resident of Dallas County. The petition alleged that an annexation ordinance of the City of Grand Prairie covered land owned by the relator, Crouch, that was located in Tarrant County. The petition alleged that the annexation ordinance was arbitrary and unreasonable and prayed that such ordinance be cancelled and annulled and prayed also for damages and an injunction. It was alleged that the City’s action in passing the annexation ordinance purporting to annex relator’s land resulted in damage to the relator’s land that was located in Tarrant County. The trial court overruled Grand Prairie’s plea of privilege. One contention being made by the plaintiff was that venue was maintainable in Tarrant County under Subd. 14, Art. 1995, because it was a suit to recover damages to land. This Court overruled that contention saying at page 187 of the opinion the following: “This is not such a suit for damages to land as may be maintained in the county where the land is situated, . . . .” And further speaking of plaintiff’s suit attacking the City’s annexation ordinance this Court said at page 188: “. . .we are only holding that if such actions of a city are to be questioned in a court, it must be in a court of the county where the city has its legal residence . . . .” In addition to what we have said, since this case is a quo warranto action, the real plaintiff is the State of Texas. The primary purpose of a quo warranto action is to protect the interests of the public and not to enforce private rights. Town of De Kalb v. State, 71 S.W.2d 299 (Waco, Tex.Civ.App., 1934, no writ hist.); Staples v. State, 112 Tex. 61, 245 S.W. 639 (1922); and 47 Tex.Jur.2d 580-581, Quo Warranto, Sec. 15. A look at plaintiff’s petition reveals that this is a quo warranto action, it being therein recited that the trial court had jurisdiction of the case as is provided in Art. 6253, V.A.C.S. That statute is the one authorizing the bringing of quo warranto actions by the State. The things we have referred to in the last two paragraphs above are factors that the court would take into consideration when reviewing the plaintiff’s petition to determine what is the principal right asserted therein and the nature of the relief that is therein sought. The trial court’s order overruling the plea of privilege of the City of Wichita Falls is reversed and judgment is here rendered sustaining that plea of privilege and the case is here ordered to be transferred to a proper district court in Wichita County, Texas.

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Caselaw Access Project

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OXFORD LEASE/AUTO PLAN, INC., Appellant, v. Talbert Henry ROBBINS, Appellee. No. 12154. Court of Civil Appeals of Texas, Austin. May 15, 1974. Rehearing Denied June 5, 1974. Paula Young Smith, Salmanson & Smith, Austin, for appellant. Allan I. Schneider, Giddings, for appel-lee. SHANNON, Justice. Appellant, Oxford Lease/Auto Plan, Inc., sued appellee, Talbert Henry Robbins, in the district court of Lee County for breach of a lease-contract agreement. Upon trial to the court, judgment was entered that appellant take nothing. In September of 1969, appellee and his son-in-law, Randal A. Martin, and St. Claire Motor Leasing entered into a written lease agreement whereby appellee and Martin leased a 1967 Ford Dump Truck. Appellee signed the lease agreement as an accommodation to his son-in-law. As consideration for the use of the truck, appellee and Martin agreed to pay $545.73 each month for a term of forty-eight months. Subsequent to the time of the signing of the subject agreement, appellant purchased the assets and liabilities of St. Claire Motor Leasing. By June of 1970, appellee and Martin were in default by several payments, and, pursuant to the agreement, Martin returned the truck to St. Claire Motor Leasing. Thereafter, Martin filed proceedings in bankruptcy and was adjudicated a bankrupt. Paragraph eighteen of the lease agreement provided that in case of default, the lessor would take possession of the vehicle and that the lessor might “. . . sell the same at any time for the highest cash offer then available to lessor or retain the same and credit lessee with an amount equal to the said highest cash offer .” That paragraph also provided that lessee pay lessor reasonable attorney’s fees in case of collection. Appellant sold the truck for $12,500 which sum was credited against the amount owed by appellee and Martin under the lease, leaving a balance owed by them of $4,277.38. Neither appellee or Martin paid anything more on the sum owing under the lease agreement. Appellant sued appellee on the written lease agreement. In its amended petition and by trial amendment, appellant prayed for recovery for $4,277.38 and attorney’s fees. Appellee’s trial pleading was a gen-, eral denial. By a single point of error appellant claims that the pleadings and proof establish its right of recovery under the lease agreement as a matter of law. Appellant introduced the lease agreement into evidence without objection, and also proved that appellee had signed the agreement. Sue Tucker, appellant’s manager, testified as to the amount owing under the lease-agreement. Appellee produced one witness, Randal Martin. His testimony was, in general, that he had experienced mechanical difficulties with the truck and that he had lost time in his hauling business while the truck was repaired. He suffered no cost of repairs, however, inasmuch as those repairs were covered by the warranty from Ford Motor Company. Martin also testified that when he returned the truck to the lessor he offered to pay part of the amount in default, but that appellant refused to accept partial payment. Appellant’s proof established the lease agreement. By the terms of that agreement appellant was entitled to sell the truck for the highest cash offer, and to obtain the balance from the lessee. Appellee filed no pleadings and offered no proof to avoid the lease agreement. We are of the opinion that appellant was entitled to recover under the agreement. The judgment is reversed and here rendered that appellant recover $4,277.38, together with $1,428.66 as attorney’s fees, and that appellee pay costs of court. Reversed and rendered.

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Caselaw Access Project

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TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. C. A. McMAHON, Appellee. No. 7562. Court of Civil Appeals of Texas, Beaumont. May 2, 1974. Rehearing Denied May 16, 1974. Second Rehearing Denied June 6, 1974. Zeleskey, Cornelius, Rogers, Berry & Hallmark, Lufkin, for appellant. Seale & Stover, Jasper, Bill A. Martin, Newton, for appellee. DIES, Chief Justice. This is a workmen’s compensation case. Plaintiff C. A. McMahon received judgment from Texas Employers’ Insurance Association, defendant, for the total loss of use of the left hand, from which insurer brings this appeal. Appellant’s first three points attack the jury’s finding (S.I. 9) that another employee of the same class as plaintiff worked at least 210 days of the year immediately preceding plaintiff’s injury, because plaintiff had purposely limited himself to earning not more than $1,680 per year to protect his Social Security benefits. Plaintiff at the time of injury was hauling pulpwood, and the evidence of these workers’ wages as a “class” was general. Defendant’s contention is that plaintiff’s situation of intentional limitation in earnings to protect his Social Security was unique and took him out of the “class” of pulpwooders not so confined. We disagree and follow the holding of Traders & General Insurance Company v. Nored, 341 S.W.2d 492 (Tex.Civ.App., Fort Worth, 1960, error ref. n.r.e.). Defendant urges that the distinction in the Nored case is that plaintiff there testified he was willing to and would accept employment if it was available even though it would deprive him of Social Security benefits. In our case, plaintiff stated he didn’t work 210 days in the year preceding his injury because, “I didn’t want to bother my social security.” We are unwilling to make this distinction. To do so would open up a new “class” of seasonal employees, such as summer students, whose wage rates would not only be difficult to determine, but would put them in an inferior category even though they were performing identical duties of non-seasonal employees. These points of error are overruled. Appellant’s points four, five, six, seven, eight, nine, and ten attack the sufficiency of the evidence to support the wage finding (S.I. No. 9). The contention is that plaintiff was paid by the load, and Cobb’s testimony concerned employees who were paid by the hour. Hence, this testimony concerned employees of a different “class” than plaintiff. Special Issues Nos. 9 and 10 and their answers follow: “Do you find from a preponderance of the evidence that there was another employee of the same class as the plaintiff, C. A. McMahon, who worked at least 210 days during the year immediately preceding plaintiff’s injury, if any, in the same or similar employment in the same or a neighboring place? “Answer: ‘Another employee had so worked.’ “What do you find from a preponderance of the evidence to be the average daily wage earned by such employee, if any, in such employement during the days actually worked? “Anwer: ‘$16.00.’” Plaintiff was asked: “Q Do you know that there were people who worked in the woods for Everett Cobb and for other employers in Newton County doing the same kind of work you were doing for at least 210 days during the year preceding May 3, 1972 ? “A Yes, sir. “Q All right, sir. Now then, was there a going pay that you and these other men received for working out there? Did you receive so much a load or how were you paid ? “A I was paid by the load. “Q How much a load ? “A I was paid eight dollars. "Q All right. And were there other employees out in the woods who received the same kind of pay, eight dollars a load? “A Yes, sir. “Q And these — these employees that you say that you knew there were some who worked at least 210 days, do you know some of those who were paid eight dollars a load ? “A Yes, sir, I believe so. ⅝ ⅜ ⅝ ⅜ ‡ ⅝ “Q [B]ut I’m talking about in a day, give me an average that you’d make in a day? We’ve got to pin it down to a daily average, Mr. McMahon ? “A Well, we could go — I believe I’d be safe to say make a average of sixteen dollars. “Q All right. And — and then a person who worked however many days he worked, you say it would be safe to say that that man would average sixteen dollars a day doing the same type of work you were doing? “A Uh Huh.” The pulpwood producer, Everett Cobb, gave the following testimony: “Q Well, if they just averaged four days a week, they’d work 210. You certainly can say that you had some at least who did that well ? “A I had some to do better than that, some do worse than that. “Q That’s fine. You did have some that did better than that ? “A That’s right. * * * * * * “Q You pay yours two-and-a-quarter to two-and-a-half an hour ? “A That’s right. That’s exactly right. Got to. This day and time. “Q. And two years ago you worked five days a week ? “A Right. That’s right. “Q Regularly ? “A Yes sir. Tried to. “Q But what I’m saying is a man who is helping a subcontractor was opposed to a man doing for you, if they’re both skidding or if they’re both hooking tongs, they were doing the same work, it was just that you paid one of them directly and in the other case it’s up to the subcontractor to pay them ? “A That’s right.” “One of the underlying purposes of our compensation statutes is to compensate an injured employee, not -merely for loss of earnings, but for loss of earning capacity, at a wage rate based on his capacity to earn when employed on a full-time basis.” Texas Employers Ins. Ass’n v. Clack, 134 Tex. 151, 132 S.W.2d 399, 401 (1939). Under subsection 2 of Art. 8309, § 1, Vernon’s Ann.Civ.St, the criterion is the wage of “an employee of the same class.” 63 Tex.Jur.2d, Workmen’s Compensation, § 172, p. 80 (1965). We believe “class” refers to the type of employment, not the manner of wage computation. Cobb’s testimony clearly establishes that there were other employees doing the same manner of work as plaintiff, who made at least a daily wage equivalent to the jury’s finding. We believe this to be sufficient. These points are overruled. Appellant’s points eleven, twelve, and thirteen complain of the jury’s findings of “permanent” to S.I. No. 3 as being unsupported or insufficiently supported by the evidence. Appellant urges that plaintiff’s medical witness opined such loss of use to be ten percent. The plaintiff testified he couldn’t do pulpwood work because of his injury; that he was unable to hold things; that he had lost considerable movement of the wrist and his hand was numb. The jury was not bound by the doctor’s opinion of disability and could base it on plaintiff’s testimony. Great American Indemnity Co. v. Beaupre, 191 S.W.2d 883, 887 (Tex.Civ.App., Dallas, 1945, error ref. n.r.e.); Southern Underwriters v. Sanders, 110 S.W.2d 1258, 1260 (Tex.Civ.App., Amarillo, 1937, error dism.). These points are overruled. The judgment of the trial court is affirmed. STEPHENSON, Justice (concurring). Even though the dissent, as now drawn, contains the statement that no dissent is made to the conclusion reached by the majority as to the “class” of other employees, much is said by indirection. After stating there is doubt as to the validity of such conclusion, it is observed in such dissent that a part-time able-bodied worker is now a full-time disabled worker. Then, the point is made that the other employees, who worked 210 days during the preceding year, were paid on an hourly basis, while plaintiff was compensated on a piece-work basis. The inference is left that payment by such different methods places plaintiff in a different class so that subdivision two is inappropriate. The appellant attempts to place a meaning upon the term “of the same class” that no appellate court in this state has ever given it before. All of the cases I have found limit the meaning of that term to the type of work being done, and no suggestion has been made that it is intended to describe the type of person the claimant is. See: Central Surety & Insurance Corporation v. Jordan, 410 S.W.2d 60 (Tex.Civ.App., Amarillo, 1966, no writ); Blankenship v. Royal Indemnity Co., 128 Tex. 26, 95 S.W.2d 366 (1936); Texas Employers Ins. Ass’n v. Ebers, 134 S.W.2d 797 (Tex.Civ.App., Amarillo, 1939, dism. judgm. cor.); Travelers Insurance Company v. Woodall, 356 S.W.2d 344 (Tex.Civ.App., El Paso, 1962, error ref. n. r. e.); Pan American Insurance Company v. Stokes, 370 S.W.2d 955 (Tex.Civ.App., Amarillo, 1963, no writ). To attempt to follow the appellant’s contention would lead the trial courts of this state into such morass of problems that the trial of compensation cases would become exceedingly difficult when a claimant had not worked 210 days before the accident. Proof that there was, or that there was not, another employee of the same class as claimant, who worked at least 210 days during the preceding year, would present too many obstacles. Such factors as the age of the claimant, whether young or old; and the part-time employee, whether after school, during the summer, or other seasonal workers — all would have to be considered. It is my opinion that the wording of the statute clearly indicates the term of the same class refers to the type of work being done, and no other meaning is intended. It is the wage-earning capacity which is protected by the compensation act. Even though the claimant in the case before us may have been limiting his earnings at the time this cause of action arose, he should be free to change his mind just as done by the claimant in the Nored Case. The jury in the case before us, after finding that another employee of the same class as the plaintiff worked at least 210 days during the preceding year, then found the average daily wage of such employee to be $16.00. No complaint is made about the latter finding. All of the evidence in the record shows the average daily wage of this plaintiff, and other employees of the same class, was at least $16.00 per day. The defendant has not been harmed if the computation is done either by the hour or by the load. I join with Chief Justice DIES in affirming this case. KEITH, Justice (dissenting). In order to place my dissent in proper perspective, I point to the obvious fact that the majority opinion divides itself into three distinct segments; viz., (1) the “class” of other employees; (2) the sufficiency of the evidence to support a determination of the wage rate under subdivision 2; (3) the sufficiency of the evidence to support the finding of incapacity. While I have some doubt as to the validity of the conclusion reached as to the “class” mentioned in section one of the majority opinion, I do not file a dissent thereto. After all, our record presents a case of a plaintiff who was a part-time able-bodied worker who is now a full-time disabled worker. I confine my dissent to the holding of the majority in the second segment of the opinion; namely, the sufficiency of the evidence to support the recovery under Section 1, subdivision 2, Art. 8309, V.A.C.S. Factually, the evidence quoted in the majority opinion is of less probative value than that examined and found deficient in Aetna Insurance Co. v. Giddens, 476 S.W.2d 664 (Tex.1972). Secondly, even if we indulge the somewhat doubtful assumption under this record, that there were other employees who actually worked as many as 210 days during the preceding year, it appears that such men were paid on an hourly basis while plaintiff was compensated on a piece-work basis. More importantly, perhaps, plaintiff’s evidence establishes that some of the men were being compensated at the rate of $2.25 per hour, others were paid at the rate of $2.50 per hour, with plaintiff being paid on the basis of $8.00 per cord. Although the discrepancy is not as great in our case, a long line of cases has firmly established the rule that where the evidence discloses differing wage rates among similar employees, it is error to submit the wage finding under subdivision 2. See, e. g., Texas Indemnity Ins. Co. v. Smith, 73 S.W.2d 578, 580 (Tex.Civ.App., Amarillo, 1934, no writ); Texas Employers’ Insurance Association v. Rigsby, 273 S.W.2d 681, 688 (Tex.Civ.App., Beaumont, 1954, no writ). In Travelers Insurance Company v. Liptrap, 413 S.W.2d 144, 147 (Tex.Civ.App., Eastland, 1966, error ref. n. r. e.), where the plaintiff did not work regularly as a cab driver (156 days with earnings of $597.58 in the preceding year), the court said: “The evidence does show that there were other employees who had worked at least 210 days during the year immediately preceding appellee’s injury. These employees were also cab drivers paid on a commission basis but their earnings varied from $7.00 to $15.00 per day. None of them received the same amount per day or per week as appellee was paid for his services. Under the evidence it was not practical to compute appellee’s .‘average weekly wages’ under Subdivision (2). The court erred in rendering judgment on the theory of another’s employment and earning capacity under the provisions of Subdivision (2) of Section 1 of Article 8309.” The court in Liptrap, supra, went on to hold that under the evidence the weekly wage of Liptrap could be fixed only under subdivision 3 of the statute. So it is here; it was error to fix plaintiff’s wages under subdivision 2; but, there was evidence which would have authorized a submission under subdivision 3 of the statute had plaintiff procured a finding negating subdivision 2. Under the authorities herein discussed, I see no alternative to a reversal of the judgment. Defendant, however, points to the fact that plaintiff had the burden of negating the applicability of subdivision 2 before going to subdivision 3, did not assume such burden, and did not submit or request a submission thereof; wherefore, defendant seeks a modification of the weekly compensation benefits to the minimum of $12.00 per week. See Comment and Caveat, 2 Texas Pattern Jury Charges, § 23.04. I would not perform such drastic financial surgery upon the award since it is apparent that the evidence on the question was not fully developed and the case was tried upon the wrong theory. I would, therefore, reverse the judgment and remand the cause for a new trial for the reasons and following the holding of Aetna Insurance Co. v. Giddens, supra (476 S.W.2d at 665). ON MOTION FOR REHEARING DIES, Chief Justice. Defendant urges that plaintiff’s testimony concerning other employees who worked at least 210 days during the preceding year, which was quoted in the majority opinion as supporting the jury finding, was excluded by the court. On cross-examination, counsel for defendant made a motion to strike which was granted by the trial court; however, the ruling by the court is so general in nature it is difficult for this court to ascertain the specific testimony excluded. In any event, following that action, plaintiff testified he knew that his son had worked for the same employer more than 210 days during the preceding year, which testimony was accepted in evidence without objection. There is also no doubt but that the testimony of Everett Cobb, the employer, supports the jury finding. . See 2 Larson, Workmen’s Compensation Law, § 60.22, for a discussion of employees who have voluntarily removed themselves from full-time employment. Further, the structure of our case is the exact opposite to that shown in Nored (341 S.W.2d at 494-495). Nor am I persuaded that the part-time summer student employee will be relegated to an “inferior category”; his path to a recovery was well charted in Texas Employers’ Insurance Association v. Shannon, 462 S.W.2d 559 (Tex.1970). Indeed, if he is a minor, he may do even better than the full-time employee by procuring an instruction under Art. 8306, § 12i, Y.A.O.S. See, 2 Texas Pattern Jury Charges, § 23.07, and cases therein cited. . This is a part of plaintiff’s testimony given on direct examination by his counsel: “Q But on the average, would you average two loads a day? “A No, sir, not all the time we couldn’t hardly say we’d average two loads because we was in bad places, we was getting hardwood. “Q All right. Well, in a — in a given week what would you, yourself, usually average making? How much money in a week? “A (You know I didn’t — I never- — I don’t believe I could hardly tell you and be sure about it just what I did make a week.”

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

LAW, SNAKARD, BROWN & GAMBILL, a professional corporation, Appellant, v. William BRUNETTE and Patchett’s Bus & Transportation Company, Appellees. No. 7567. Court of Civil Appeals of Texas, Beaumont. May 9, 1974. Rehearing Denied May 30, 1974. Gibbins & Spivey, Austin, .for appellant. Stayton, Maloney, Hearne, Babb & Cow-den, Austin, for appellees. DIES, Chief Justice. On February 2, 1970, defendant (appel-lee) William Brunette, a California resident, executed a promissory note to Ray Cowan. The note, a “Texas Standard Form,” was payable in Austin, Texas, and signed by defendant Brunette in Texas. On February 4, 1970, defendant Patch-ett’s Bus & Transportation Company (ap-pellees) executed a promissory note at Stockton, California, payable at Austin, Texas. This note was likewise signed by defendant Brunette, president of the bus company, and sent by mail to Texas. The bus company is a California corporation. Cowan endorsed both notes to plaintiff corporation — Law, Snakard, Brown & Gambill (appellant) — in consideration for legal fees. Plaintiff brought this suit on both notes in Travis County, Texas, and obtained service against both defendants pursuant to Art. 2031b, § 4, Vernon’s Ann. Civ.St. Both defendants filed a Special Appearance, as provided by Rules of Civil Procedure, rule 120a, to present a motion to the jurisdiction, contending the Texas court was without jurisdiction to hear the case. The trial court agreed, sustained both pleas to the jurisdiction, and dismissed the cause, from which order plaintiff perfects this appeal. The testimony shows, in addition to what has been set out, that defendant “Brunette came to Texas on many occasions and I [Cowan] handled all of his finances from about 1969 through sometime in ’71, and he was there at many times, and we discussed several notes as well as those two.” The testimony reveals that Brunette and Cowan met in the State of Texas “[a]t my office on Anchor Lane.” We have no direct testimony of the residence of Cowan. It is well to state here that Cowan testified the reason the bus company note was signed in California and mailed to Texas is “because you have to have your secretary’s signature.” The only question presented here is whether under these facts is either defendant amenable to suit in the State of Texas P Portions of Art. 2031b follow: “Sec. 3. Any foreign corporation, association, joint stock company, partnership, or non-resident natural person that engages in business in this State, irrespective of any Statute or law respecting designation or maintenance of resident agents, and does not maintain a place of regular business in this State or a designated agent upon whom service may be within this State shall be deemed equiva-made upon causes of action arising out of such business done in this State, the act or acts of engaging in such business lent to an appointment by such foreign corporation, joint stock company, association, partnership, or non-resident natural person of the Secretary of State of Texas as agent upon whom service of process may be made in any action, suit or proceedings arising out of such business done in this State, wherein such corporation, joint stock company, association, partnership, or non-resident natural person is a party or is to be made a party. “Sec. 4. For the purpose of this Act, and without including other acts that may constitute doing business, any foreign corporation, joint stock company, association, partnership, or non-resident natural person shall be deemed doing business in this State by entering into contract by mail or otherwise with a resident of Texas to be performed in whole or in part by either party in this State, or the committing of any tort in whole or in part in this State.” The trial court's Conclusions of Law follow: “1. Jurisdiction over the defendants William Brunette and Patchett’s Bus & Transportation Company is not maintainable by the Courts of this State because there is neither pleading nor proof in the record to show that Ray Cowan, the party with whom both defendants entered into contracts in February, 1970, was a resident of the State of Texas as of February, 1970, or at any other time, as required to show that the defendants were doing business in this State as defined by Article 2031b, Section 4, V.A. T.S. “2. Jurisdiction over the defendant Patchett’s Bus & Transportation Company is not maintainable by the Courts of this State because to do so would offend traditional notions of fair play and substantial justice, because the record does not show the existence of those minimum contacts as are required to maintain jurisdiction over this defendant by the Fourteenth Amendment to the United States Constitution. “3. Jurisdiction over the defendant William Brunette is not maintainable by the Courts of this State because to do so would offend traditional notions of fair play and substantial justice, because the record does not show the existence of those minimum contacts as are required to maintain jurisdiction over this defendant by the Fourteenth Amendment of the United States Constitution.” In International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), the State of Washington sued Shoe Company in its courts to recover unpaid contributions to the state unemployment compensation fund exacted by state statutes. Shoe Company was a Delaware corporation, had no office in Washington, and made no contracts either for sale or purchase there. It maintained no stock of merchandise in Washington, and made no deliveries of goods in intrastate commerce. It did employ eleven to thirteen salesmen in Washington, under the direct supervision of sales managers in St. Louis. The authority of the salesmen was limited to exhibiting their samples and soliciting orders from prospective buyers at prices and on terms fixed by Shoe Company. The orders were shipped f. o. b. from points outside Washington. In holding Shoe Company amenable to the courts of Washington, the Court said: “[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” (326 U.S. at 316, 66 S.Ct. at 158) The Court in McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957), further expanded this doctrine. There a California resident purchased a life insurance policy from the Empire Mutual Insurance Company, an Arizona corporation, in 1944. In 1948 International agreed with Empire to assume its insurance obligations. International then mailed a reinsurance certificate to Franklin in California offering to insure him in accordance with the terms of the policy he held with Empire, which he accepted. From that time until his death in 1950, he paid the premiums by mail from his California home to International’s Texas office. Neither Empire nor International ever had any office or agent in California, and International had never solicited or done any insurance business in California apart from the policy there involved. The Court said: “Since Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, this Court has held that the Due Process Clause of the Fourteenth Amendment places some limit on the power of state courts to enter binding judgments against persons not served with process within their boundaries. But just where this line of limitation falls has been the subject of prolific controversy, particularly with respect to foreign corporations. In a continuing process of evolution this Court accepted and then abandoned ‘consent,’ ‘doing business,’ and ‘presence’ as the standard for measuring the extent of state judicial power over such corporations. See Henderson, The Position of Foreign Corporations in American Constitutional Law, ch V. More recently in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, 161 A.L.R. 1057, the Court decided that ‘due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend “tradi-' tional notions of fair play and substantial justice.”’ Id. 326 U.S. at 316 [66 S.Ct. 154], "Looking back over this long history of litigation a trend is clearly discernible toward expanding the permissible scope of state jurisdiction over foreign corporations and other nonresidents. In part this is attributable to the fundamental transformation of our national economy over the years. Today many commercial transactions touch two or more States and may involve parties separated by the full continent. With this increasing nationalization of commerce has come a great increase in the amount of business conducted by mail across state lines. At the same time modern transportation and communication have made it much less burdensome for a party sued to defend himself in a State where he engages in economic activity. “Turning to this case we think it apparent that the Due Process Clause did not preclude the California court from entering a judgment binding on respondent. It is sufficient for purposes of due process that the suit was based on a contract which had substantial connection with that State. Cf. Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091; Henry L. Doherty & Co. v. Goodman, 294 U.S. 623, 55 S.Ct. 553, 79 L.Ed. 1097; Pennoyer v. Neff, 95 U.S. 714, 735, 24 L.Ed. 565, 573. [Footnote omitted] The contract was delivered in California, the premiums were mailed from there and the insured was a resident of that State when he died. It cannot be denied that California has a manifest interest in providing effective means of redress for its residents when their insurers refuse to pay claims. These residents would be at a severe disadvantage if they were forced to follow the insurance company to a distant State in order to hold it legally accountable. When claims were small or moderate individual claimants frequently could not afford the cost of bringing an action in a foreign forum — thus in effect making the company judgment proof. Often the crucial witnesses — as here on the company’s defense of suicide — will be found in the insured’s locality. Of course there may be inconvenience to the insurer if it is held amenable to suit in California where it had this contract but certainly nothing which amounts to a denial of due process. Cf. Travelers Health Asso. v. Virginia, 339 U.S. 643, 70 S.Ct. 927, 94 L.Ed. 1154. There is no contention that respondent did not have adequate notice of the suit or sufficient time to prepare its defenses and appear.” (355 U.S. at 222-224, 78 S.Ct. at 200) Our Texas Supreme Court in O’Brien v. Lanpar Company, 399 S.W.2d 340 (1966), reviewed this situation: the president of Lanpar (a Texas corporation) went to Chicago and employed O’Brien as the corporation’s attorney to prosecute an action on its behalf in Illinois. Lanpar later refused to pay all the fee. O’Brien filed suit in Illinois. Process was served on Lanpar at its place of business in Dallas. Lanpar did not defend and O’Brien obtained a default judgment in Illinois. The Court (Pope, J.) said: “It is our opinion that the Illinois court had jurisdiction to render the in person-am judgment and it is entitled to full faith and credit. . . . The validity of the Illinois judgment is controlled by the law of Illinois but must satisfy the due process clause. . . . The action was one which arose out of and was a part of the very contact for which Lan-par’s agent visited Illinois. . . . The contact and contract were made in Illinois.” (399 S.W.2d at 341, 343) In Eyerly Aircraft Co. v. Killian, 414 F.2d 591 (5th Cir.1969), a child was injured on an amusement ride in Dallas, which was manufactured in Oregon approximately twenty years earlier. Plaintiff’s cause of action arose out of an alleged defect in the ride which the defendant corporation had neither sold nor serviced in Texas. Eyerly, the manufacturer, had no contact with the ride since introducing it into interstate commerce by selling it to a Chicago amusement show some twenty years ago. The Court said: “Our question in this diversity case is whether the Texas ‘Long Arm’ statute has the stretch, within constitutional permissibility, to embrace the products liability action before us. We find both the stretch and the embrace.” See Standard Leasing Co. v. Performance Systems, Inc., 321 F.Supp. 977 (N.D.Tex.1971), where defendant Tennessee Corporation agreed to pay to plaintiff at its office in Amarillo, Texas, assigned lease rentals as they became due. The court found this satisfied Art. 2031b, § 3, set out, supra, and met the constitutional test. In Uvalde Rock Asphalt Co. v. Consolidated Carpet Corp., 457 S.W.2d 649 (Tex.Civ.App., Beaumont, 1970, error, ref. n. r. e.), a Texas corporation sued an Arizona corporation upon a sworn account, obtaining service under Art. 2031b. The Arizona corporation contended it was not amenable to in personam jurisdiction. The Court disagreed. In McKanna v. Edgar, 380 S.W.2d 889 [Tex.Civ.App., Austin, 1964, reversed, 388 S.W.2d 927 (Tex.Sup.1965)], the court upheld a judgment obtained in Travis County against a California resident who had executed a note payable in Texas. Service on the non-resident had been obtained in pursuance to Art. 2031b. The Supreme Court reversed on the ground that the record failed to show the existence of the conditions which, under the statute, are a prerequisite to serving a party by serving the Secretary of State. The contention was made that Art. 2031b was unconstitutional, which the Supreme Court felt was unnecessary in that case to answer. For a thorough compilation of cases involving this statute, see Modine Mfg. Co. v. North East Independent Sch. Dist., 503 S.W.2d 833, 837 (Tex.Civ.App., Beaumont, 1973, error ref. n. r. e.). We think it is fair to comment that since the days of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1877), the courts have recognized that modern commerce is much less inhibited by state boundaries and distance. And, while it is still inconvenient for a party to defend a suit out of state, this inconvenience is likewise less today. Here we have a situation not only where both notes were payable in Texas, but where one of them was signed in Texas ; and discussions leading up to their execution were held in Texas. The one executed in California was so the secretary of the corporation could sign it. Appellee Brunette came to Texas many times from 1969 to 1971, and Cowan (the payee of the note) handled the finances. We believe these are sufficient contacts to hold both Brunette and Bus Company amenable to suit in Texas. Appellees contend there is no proof Cowan was a resident of Texas. This burden (to prove non-residence) was on appellees. Roquemore v. Roquemore, 431 S.W.2d 595, 600 (Tex.Civ.App., Corpus Christi, 1968, no writ) states: “Special appearance to challenge jurisdiction in Texas is a plea in abatement and such plea is not favored by the courts, [citing cases] The party pleading in abatement has the burden of proof.” Taylor v. American Emery Wheel Works, 480 S.W.2d 26 (Tex.Civ.App., Corpus Christi, 1972, no writ). See also 42 Tex.L.Rev. 279 (1964). We sustain appellant’s points of error and the judgment of the trial court is reversed and remanded.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

A. G. FLORENCE et al., Appellants, v. ASHERTON INDEPENDENT SCHOOL DISTRICT et al., Appellees. No. 15291. Court of Civil Appeals of Texas, San Antonio. April 17, 1974. Rehearing Denied May 15, 1974. Alfred F. Fitzpatrick, Carrizo Springs, for appellants. J. C. Hinsley, Austin, for appellees. BARROW, Chief Justice. Appellants, A. G. Florence and Jose P. Garcia, have perfected this appeal from a take-nothing judgment in their suit for injunction against appellees, Asherton Independent School District, and the following officials of said school district: the seven members of the Board of Trustees, Margaret B. Casey, tax assessor-collector, Coleman Bailey, superintendent, and Catar-ina DeLeon, Lorenzo Jasso and Jesus Mata, members of the Board of Equalization. Appellants sought to enjoin appellees from collecting taxes in the district based on tax rolls approved by the defendant members of the Board of Equalization. The Trustees appointed appellants and Sam Galvan, by letter of April 11, 1973, to serve as the Board of Equalization for the District for the year 1973 and .set its first meeting for May 1, at 9:00 a. m. Appellants were present at such time, but Galvan did not appear, nor has he taken any part in the controversy involved herein. Superintendent Bailey was present and presented a brief financial picture of the District. Bailey was hired in July, 1972, and at such time the District was unquestionably in poor financial condition and the physical plant was in bad shape. The trustees decided to set up a separate tax office for the District instead of having Dimmit County assess and collect the District’s taxes. Mrs. Casey was hired as tax assessor-collector, and she commenced to work up a list of property owners in the District. In April of 1973, the voters of the District approved an $800,000.00 bond issue to construct a new school plant. The sale of these bonds will require total assessments of almost $9,000,000.00 for the District. Mrs. Casey furnished appellants a form on which suggested valuations were made for each type of property in the district; i. e. irrigated farm land was valued at $75.00, dry farm land at $50.00 and unimproved brush land at $25.00. These suggested valuations, although admittedly within the range of fair market value, were not acceptable to appellants, and they agreed between themselves that the above valuations should be reduced to $60.00, $40.00 and $17.50, respectively. These proposed valuations by appellants were not reduced to writing prior to noon when appellants recessed until May 15, 1973. In the meantime, the Trustees learned of appellants’ unwillingness to go along with the suggested valuations, and prior to the scheduled second meeting of appellants, the Trustees discharged appellants from the Board of Equalization and appointed a new Board consisting of Catarina DeLeon, Lorenzo Jasso and Jesus Mata. The new Board met and was organized on May 17, 1973. After various hearings, the new Board approved the tax rolls on July 11, 1973, with a total assessed valuation of $4,733,949.0o. The valuations of the various types of real property were in line with those suggested to appellants by Mrs. Casey on May 1, 1973. Section 23.93(d) of the Texas Education Code, V.T.C.A. (1972), provides in part: “The assessment shall be equalized by a board of equalization appointed for that purpose by the board of trustees of the independent school district.” There is no provision in the Education Code for the removal of all, or any member of the board of equalization. We have found only one case which considered such a problem. In Republic Insurance Co. v. Highland Park Independent School District, 129 Tex. 55, 102 S.W.2d 184 (Tex.1937), it was held that the attempted action of the trustees in discharging the assessor and the board of equalization manifestly because they had gone contrary to the wishes of the trustees as concerned the assessment of one taxpayer, was void. The Court said: “The idea that a board can be discharged at will, and a new one appointed for the sole purpose of passing on the valuation of one taxpayer’s property alone, is contrary to the principle of fairness and equality supporting the necessity for such agency.” Nevertheless, it is not improper or unlawful for the trustees to request or suggest to the board of equalization the amount of valuations needed by the district. Harberson v. Arledge, 438 S.W.2d 591 (Tex.Civ.App.—Fort Worth 1969, writ ref’d n. r. e.); McHale v. Coppell Independent School District, 381 S.W.2d 367 (Tex.Civ.App.—Dallas 1964, writ ref’d n. r. e.); Clark v. Cedar Hill Independent School District, 295 S.W.2d 671 (Tex.Civ.App.—Dallas 1956, writ ref’d n. r. e.); Jopling v. City of LaGrange, 256 S.W.2d 901 (Tex.Civ.App.—Austin 1953, writ ref’d). Furthermore, the trustees have the power to replace a board of equalization which has resigned. Superior Oil Co. v. Board of Trustees of Magnolia Independent School District, 410 S.W.2d 504 (Tex.Civ.App.—Eastland 1966, writ ref’d n. r. e.). The limited question before us in this appeal is whether the actions of the new board of equalization are absolutely void so as to be subject to a collateral attack. Although a hearing was had on appellants’ application for a temporary injunction on July 13, 1973, no appeal was perfected from the order denying same. At such time, the new board had already completed the statutory duty of equalizing the taxes and approving the tax rolls. The present posture of the case is that tax statements have been prepared and sent the individual taxpayers based on such approved tax rolls and the individual tax statements were due on or prior to February 1, 1974. Neither appellants, nor any other person, has complained of the tax rolls or of his own tax statement in the capacity of a taxpayer. It is now well settled that the assessment of property for tax purposes is a quasi-judicial function of boards of equalization and that no attack on valuations fixed by such boards can or will be sustained in the absence of proof of fraud, want of jurisdiction, illegality, or the adoption of an arbitrary and fundamentally erroneous plan or scheme of valuation. City of Arlington v. Cannon, 153 Tex. 566, 271 S.W.2d 414 (1954); State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569 (1954). In City of Waco v. Conlee Seed Company, 449 S.W.2d 29 (Tex.1969), it was held that collateral attacks upon the quasi-judicial judgments of boards of equalization are permitted upon proof of grossly excessive valuations which may be sufficient to establish fraud or illegality. The new board of equalization was appointed by the Trustees, took their oath of office, entered on such office and performed the duties of same to completion. Thus, the scheme or plan of taxation has now been fully implemented and put in operation. Presumably all or substantially all of the taxpayers have paid their taxes for 1973. The complaint before us has not been made by any taxpayer. Cf. Atlantic Richfield Co. v. Warren Independent School District, 453 S.W.2d 190 (Tex.Civ.App.—Beaumont 1970, writ ref’d n. r. e.); Briscoe Ranches, Inc. v. Eagle Pass Independent School District, 439 S.W.2d 118 (Tex.Civ.App.—San Antonio 1969, writ ref’d n. r. e.). Appellants cannot now be heard to complain in the sole capacity of former members of the board of equalization. The take-nothing judgment of the trial court is affirmed. . It is seen that these suggested valuations did not produce the $8.9 million dollars assessed valuation necessary for the District to sell the construction bonds.

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TRITON OIL AND GAS CORPORATION, Appellant, v. E. W. MORAN DRILLING COMPANY, Appellee. No. 17487. Court of Civil Appeals of Texas, Forth Worth. April 26, 1974. Rehearing Denied May 24, 1974. Roach & Robertson, Dallas, Sherrill, Pace & Rogers and Lonny D. Morrison, Wichita Falls, for appellant. Vial, Hamilton, Koch, Tubb, Knox & Stradley, Robert G. Vial and Paul D. Schoonover, Dallas, Sanders, Masters & Watson and Marvin H. Brown, Wichita Falls, for appellee. OPINION LANGDON, Justice. This appeal arises out of a damage suit brought by E. W. Moran Drilling Company, drilling contractor, appellee and plaintiff below, for breach of a contract to drill a well, complaining of Triton Oil and Gas Corporation, owner, appellant, defendant and cross-plaintiff below. Plaintiff also sued alternatively for quantum meruit recovery. Defendant Triton counterclaimed against plaintiff on theories of breach of contract and negligent performance. After lengthy trial, the jury answered sixty (60) special issues (less those conditionally submitted, e. g.: quantum meruit) in favor of plaintiff without a conflict. Based on such verdict the trial court rendered judgment for plaintiff in the total sum of $312,052.-94, plus appropriate interest, including the following: (1) $193,583.25 for footage basis drilling; (2) $58,573.00 for day work performed in an effort to restore normal drilling operations pursuant to paragraphs 5.1 and, 13.2 of the drilling contract; (3) $28,159.52 for services performed and equipment furnished and/or lost while performing day work; and (4) $31,737.17 for third-party services furnished during day work. This appeal from such judgment is based upon four points of error. We affirm. The parties will be referred to as plaintiff and defendant. The defendant by its first point contends that the court erred in failing to include in its charge to the jury an issue with respect to the performance of each and every condition precedent to the plaintiff’s right of recovery. Under this point the defendant restricts its argument to the contention that plaintiff did not maintain the mud weight as agreed; that this could have contributed to the difficulties encountered, that maintenance of the drilling mud is a condition precedent to plaintiff’s right of recovery; and that having obtained no special issue of performance of such condition precedent, plaintiff’s judgment should not be allowed to stand. Pursuant to the contract in controversy, defendant, as owner, engaged plaintiff, as contractor, to “drill the hereinafter designated well in search of oil or gas.” Generally, the contract obligated plaintiff to drill to the depth of 15,000 feet or fifty feet into a certain geological formation, whichever depth was first reached. While the principal method of compensation for plaintiff was per linear foot of hole drilled, the contract obligated defendant to pay plaintiff on a “day work” basis at a certain rate, if plaintiff encountered certain geological formations difficult or hazardous to drill. Plaintiff was engaged in drilling operations on behalf of defendant for a total of approximately five (5) months. Until July 30, 1972, plaintiff conducted most of its drilling operations on a footage basis. On or about such date, plaintiff encountered heaving shale, or other similar formation, which precluded drilling ahead under reasonably normal procedures. This contingency was covered by Paragraph 13.2 of the contract, which provides in part that “. . . When such condition is encountered, further operations shall be conducted on a day work basis at the applicable day work rate until such conditions have been overcome and normal drilling operations can be resumed. Owner shall assume the risk of loss of or damage to the hole and to Contractor’s equipment in the hole from the time such condition is encountered. The footage drilled while on day work basis shall be deducted from the footage charge.” After July 30, 1972, plaintiff was temporarily able to resume normal drilling procedures, but on numerous occasions continued to encounter the heaving shale, until on or about August 30, 1972, when the drill pipe became stuck and subsequent efforts to resume normal drilling operations failed. After each encounter of heaving shale, plaintiff exerted every reasonable effort to overcome the difficulty. Plaintiff kept defendant apprised of the situation, and made demand upon defendant to perform its day work obligations under the contract. On October 2, 1972, pursuant to Paragraph 5.1 of the contract, plaintiff invoiced defendant for the “substantial amount” of day work performed in an attempt to resume normal drilling operations, and for other expenses due under the applicable day work contract provisions. Defendant gave plaintiff notice of its intention not to pay the invoice, thereby materially breaching the contract and excusing plaintiff from the duty of further performance. Further, defendant denied an obligation to pay plaintiff any sum in consideration of the drilling of the well. The drilling contract expressly speaks to the obligations of both plaintiff and defendant with respect to the drilling mud to be furnished and used in the drilling operations. It requires that drilling mud, chemicals, lost circulation materials and other additives, as well as mud logging services, shall be furnished and provided at the location at the expense of defendant. Defendant’s rights regarding the drilling mud and the drilling mud program are expressed in Paragraph 10.3 of the drilling contract: “. . .at all times during the drilling of the well, Owner shall have the right to control the mud program, and the drilling fluid must be of a type and have characteristics acceptable to Owner Under Paragraph 10.3 of the contract, the obligation of plaintiff is also expressed : “. . . and the drilling fluid must ... be maintained by Contractor in accordance with the specifications shown in Par. 2 of Exhibit ‘A’.” The evidence is that defendant furnished the drilling mud on the well through Bar-oid, a mud service company, and Baroid’s employee, Max McCreight, a mud sales engineer. McCreight, who was on location at the well almost daily, performed his usual functions. He regularly prepared a report known as the Drilling Mud Report. McCreight’s Drilling Mud Reports contained the results of McCreight’s daily testing and sampling of the mud properties. Such reports also informed defendant of the cost to defendant, both daily and cumulatively, of the drilling mud which defendant was furnishing through Baroid. The reports also contain detailed instructions to plaintiff regarding maintenance by plaintiff of the drilling mud. McCreight’s reports contained his direction to plaintiff on how to maintain the drilling mud. Plaintiff followed the recommendations of defendant’s mud service engineer, regarding maintenance of the drilling mud and each day tested the drilling mud to make certain that it was being maintained as directed. Not only did plaintiff attest to its maintenance of the drilling mud but also Max McCreight, the mud sales engineer hired by defendant, testified that plaintiff was very cooperative regarding the mud program. We find and hold that the plaintiff proved that it substantially performed the drilling contract in a good and workmanlike manner with due diligence and care, and established its right to contract damages from defendant. The legal result of the finding of such fact by the jury was that any failure to perform by plaintiff (be it maintenance of the mud or other covenant) was not a failure to perform the drilling contract in its essential points, or, stated conversely, that plaintiff did not materially breach the drilling contract. Plaintiff proved the performance of all express conditions precedent to its entitlement to day work compensation; and by proving substantial performance, plaintiff proved sufficient performance of the drilling contract generally to recover contract damages. We find and hold that the trial court’s charge to the jury included issues with respect to the performance of all conditions precedent to the plaintiff’s right of recovery. The record conclusively demonstrates that plaintiff maintained the mud as required by the contract, and that the submission of an issue inquiring as to such performance would not have been proper, and therefore, its omission is not error. The applicability of the substantial performance doctrine tp drilling contracts is unquestioned: “Where a driller has substantially performed his duties as prescribed by the contract, he is entitled to compensation therefor in accordance with the provisions of the contract.” 4 Summers Oil and Gas, § 687, at p. 186. Early Texas cases evidence submission of the ultimate special issue of plaintiff’s substantial performance of the drilling contract. Lankford v. Jetter Drilling Co., 251 S.W. 587 (Amarillo, Tex.Civ.App., 1923, no writ hist.). To recover on the drilling contract, as stated above, plaintiff was required to prove that it substantially performed the contract in a good and workmanlike manner with due diligence and care. This is Special Issue-No. 26 verbatim. The issue was answered in favor of plaintiff. Defendant has not challenged this issue and finding. But the affirmative answer to Special Issue No. 26 did not completely resolve the case. Because plaintiff sued to some extent for day work rates, it was incumbent upon plaintiff to prove all express conditions precedent to defendant’s liability to pay such rates. The day work provisions in the contract are clearly conditions, using the phrase “in the event that.” Thus, in addition to overall substantial performance, plaintiff was required to prove under Paragraphs 13.2 and 5.1 of the contract the following: (a) That it encountered “heaving shale or other similar formation, which makes drilling abnormally difficult or hazardous, causes sticking of drill pipe or casing, or other similar difficulty which precludes drilling ahead under reasonably normal procedures”; (b) That without undue delay, it exerted “every reasonable effort to overcome such difficulty”; (c) That it performed and billed defendant for a “substantial” amount of day work; and (d) That defendant refused to pay. Special Issues Nos. 1 through 25, answered favorably, established conditions (a) and (b). Conditions (c) and (d) were uncontroverted and conclusively established by the evidence. At this point, plaintiff had proven its right to contract damages and plaintiff was not required to prove maintenance of the mud as an element of its cause of action. The trial court submitted the case at bar in a manner almost identical with that approved in Tenneco Oil Company v. Padre Drilling Company, 445 S.W.2d 247 (Waco, Tex.Civ.App., 1969, affirmed at Tex.Sup., 453 S.W.2d 814, 1970). The trial court correctly rendered judgment on the contract for plaintiffs. Under the evidence, the trial judge was not required to submit defendant’s tendered Special Issue inquiring whether plaintiff “failed to maintain the weight in the drilling mud between 12 and 14 pounds per gallon as needed to control the hole while operations were conducted by it below 14,000 feet.” “A special issue should not be submitted if it . . . is . . . conclusively established, or can be answered as a mere matter of legal deduction from undisputed facts.” See 3 McDonald, Texas Civil Practice (1970 Revised), § 12.08-C; Brown v. Payne, 142 Tex. 102, 176 S.W.2d 306 (1943); 3 McDonald, Texas Civil Practice, § 12.03.1, at 268-69. Defendant did not plead, and offered no proof, that the contractual provision on the respective duties of the parties with respect to the mud program was ambiguous. The judgment reflects that the trial court rendered judgment for plaintiff, inter alia, based upon its independent consideration of all controlling issues of law. The trial court, therefore, must be deemed to have resolved any contract interpretation issues in favor of the judgment. See Westbrook v. Watts, 268 S.W.2d 694 (Waco, Tex.Civ.App., 1954, error ref., n. r. e.). The jury found that defendant failed to furnish proper drilling mud during plaintiff’s drilling operations, and that such failure was a proximate cause of the damages complained of by defendant (Special Issues 56 and 57). Therefore, the contract, the court, and the jury clearly placed upon defendant the duty to furnish and control the drilling mud program. Under the record plaintiff fully performed its duty to “maintain” the mud, and the trial court correctly declined to submit defendant’s tendered issue. We find and hold that the trial court properly refused to include in its charge to the jury an issue with respect to plaintiff’s performance of its obligation under the drilling contract to maintain the mud because the trial court submitted Special Issue No. 26, the ultimate issue inquiring whether plaintiff substantially performed the drilling contract and additionally because the evidence conclusively establishes plaintiff’s performance of such obligation. Under its point No. 2 the defendant asserts that the trial court abused its discretion in refusing to strike the testimony of David Gee, a witness for the plaintiff. Under this point the defendant points out that Rule 267, Texas Rules of Civil Procedure, was invoked early in the trial of this case. Several days thereafter, the plaintiff called as a witness Mr. David Gee, a consulting geologist. Mr. Gee’s testimony included first-hand observations and expert testimony. After the testimony of Mr. Gee had begun, defendant’s counsel learned that the witness’ wife had been attending the trial and she was called, on bill of exception, by the defendant. The testimony of Betty Gee revealed that she was the wife of David Gee, the said witness; that she had attended substantial portions of the trial; that she was a public stenographer; that she made notes during the trial; that her notes were transcribed and seen by David Gee, the witness; that she discussed the testimony heard in the course of the trial with David Gee, witness, and that such notes were taken at the request of plaintiff’s counsel. The testimony of David Gee appears in the statement of facts and is characterized, in substance, by the conclusion that the plaintiff encountered heaving shale and was without fault. Defendant’s motion to strike the testimony of David Gee was overruled. David Gee is a consulting geologist, with 25 years’ experience in the drilling of oil and gas wells. His services as a consulting geologist were sought and obtained by plaintiff on September 4, 1972, after the drill pipe was stuck for the last time during plaintiff’s drilling operations on August 30, 1972. He was on location at the well for part of one day, September 5, 1972. During the period from September, 1972, until the trial in May, 1973, David Gee performed consulting geological services, including: Examination of rock samples called “wash down samples” and “drilling samples”, the preparation of various charts and the examination of electric logs. Such geological investigation and such geological charts represent the substance of Gee’s testimony in this case. No other expert geological evidence was offered by plaintiff or defendant. The witnesses who testified prior to David Gee included E. W. Moran, Jr., a partner in the plaintiff partnership, one of plaintiff’s drillers, plaintiff’s tool pusher, a sales service engineer of Magcobar, Division of Dresser Industries, and Gene T. Green, plaintiff’s drilling superintendent. The testimony of all these witnesses primarily concerned the drilling operations of plaintiff on the subject well, and not geology. Upon cross-examination by defendant’s counsel, David Gee stated that he could not, and did not, testify or express any opinion regarding such drilling operations. Defendant’s claim that the trial court erred in failing to strike the testimony of David Gee is based upon Rule 267, T.R.C.P. The Rule permits the trial court, at the request of either party in a civil case, to swear and remove the witnesses from the courtroom so they cannot hear the testimony given by any other witness in the case. It has been held that the Rule is directory, not mandatory. Medrano v. City of El Paso, 231 S.W.2d 514 (El Paso, Tex.Civ.App., 1950, no writ hist.). When the Rule has been properly invoked, as it was in the case at bar, and a party tenders a witness who has not been placed thereunder or there is some other violation of the rule, the trial court, in the exercise of judicial discretion, must determine whether the witness’ testimony will be received. Taking into consideration all of the circumstances, the trial judge may bar the witness from the stand, and his ruling will be upset only on a showing of abuse of discretion. Southwestern Bell Telephone Company v. Johnson, 389 S.W.2d 645 (Tex.Sup., 1965) 3 McDonald Texas Civil Practice, § 11.17.3 at page 186. Conversely, upon a similar consideration, the trial judge may, in his discretion, permit the witness to testify, and again the ruling may be upset only upon a showing of manifest abuse of discretion. Southwestern Bell Telephone Company v. Johnson, supra; Insurance Company of North America v. Parker, 434 S.W.2d 159, 161 (Tyler, Tex.Civ.App., 1968, no writ hist.). It has been generally held that expert witnesses are exempt from the operation of the Rule, or that a violation of the Rule by an expert witness will not justify excluding his testimony. See Lyles v. Texas Employers’ Insurance Association, 405 S.W.2d 725 (Waco, Tex.Civ.App., 1966, error ref., n.r.e.); Medrano v. City of El Paso, supra; Portilla Drilling Co. v. Miller, 144 S.W.2d 936, 939 (San Antonio, Tex.Civ.App., 1940, error dism., judgm. cor.); Stedman Fruit Co. v. Smith, 28 S.W.2d 622, 630-631 (Beaumont, Tex.Civ. App., 1930, error dism.); Carter v. Kansas City Southern Ry. Co., 155 S.W. 638, 644 (Texarkana, Tex.Civ.App., 1913, no writ hist.); Lewis v. Owen, 395 F.2d 537 (10th Cir., 1968); Carlile v. State, 451 S.W.2d 511 (Tex.Crim.App., 1970); 85 A.L.R.2d 478 (1962). In applying the principles announced in the authorities above cited, to the case at bar, we find and hold that the trial court correctly refused to strike the testimony of David Gee. The defendant has not shown that it was prejudiced by any violation of the Rule with respect to Mr. Gee. See Stedman Fruit Co. v. Smith, supra. Mr. Gee’s testimony is expert testimony notwithstanding the fact that such testimony was based, in part, upon personal observations at the well site after plaintiff’s drill pipe became stuck for the last time. Mr. Gee was the only geologist to testify at the trial, and his testimony was uncontroverted. We overrule defendant’s second point. Under its third point the defendant asserts that the trial court erred in entering judgment against the defendant for $30,942.85 included in the so-called “third-party” bills described as Item (4) on page two of the judgment for the reason that plaintiff has denied liability to such creditors for such bills and-none of same have been paid by plaintiff. Under this point the defendant relates that in paragraph No. 6 of Exhibit “A” to the contract the defendant (owner) agreed to pay the expense of the items which together make up the “third-party” bills. The parties also agreed that the defendant would “ . reimburse Contractor (plaintiff) for the costs of material, equipment, work, or services which are to be furnished by Owner (defendant) as provided for herein but which for convenience are actually furnished by Contractor (plaintiff) at Owner’s (defendant’s) request.” Plaintiff has (a) denied liability for the payment of third-party claims totaling $30,942.85 and (b) has not paid such third-party claims but has a judgment for the aggregate amount of such claims. Defendant further asserts that its duty under the contract is only to “reimburse” plaintiff for the payment of third-party bills. That Black’s Law Dictionary (Revised Fourth Edition) defines the word “reimburse” as follows: “To pay back, to make restoration, to repay that expended; to indemnify, or make whole.” The defendant further asserts that plaintiff is not entitled to be reimbursed for payments it has not made and that to render judgment in its favor for bills it has neither paid nor even admitted the liability to pay is unjust to defendant and subjects it to future claims or suits from third-party claimants who are not bound by the court’s judgment herein. We overrule defendant’s point three. We find and hold that the trial court properly rendered judgment against defendant for $30,942.85 for third-party services and materials furnished by plaintiff while performing day work. Under such day work conditions, Paragraph 13.2 of the contract requires that “ . . . Contractor shall, in all such cases, without undue delay, exert every reasonable effort to overcome such difficulty.” While the contract requires action by both plaintiff and defendant the evidence indicates that defendant did nothing in performance of its contract, after the sticking of the drill pipe on August 30, 1972, other than to deny the existence of day work conditions. Plaintiff, in exerting reasonable efforts to overcome the difficulty, was required and did, in fact, order and cause to be furnished such third-party services through various contractors. The third-party items ordered and caused to be furnished by plaintiff in an effort to overcome the difficulty encountered, when defendant failed and refused to furnish such materials and services, were substantial in amount, in the total sum of $31,737.17 and plaintiff promptly notified defendant thereof and further made, filed and perfected its mechanic’s lien claim therefor on the leasehold estate of defendant. Plaintiff sued for the recovery of the third-party items. The verdict of the jury was for plaintiff thereon and the trial court rendered and entered judgment for plaintiff therefor. Contrary to assertions of the defendant the plaintiff has not denied liability to any third-party subcontractor. Plaintiff has stated by its pleadings in this cause that, as between plaintiff and defendant, the plaintiff does not admit it is liable to any party for any such items, but says that defendant is contractually liable for the same. Under provisions of the drilling contract, plaintiff agreed to pay all claims for labor, materials, services and supplies to be furnished by plaintiff-contractor hereunder, and in Paragraph 6 of such contract defendant agreed that all these third-party services and materials involved under this point were required to be furnished by defendant-owner. The drilling contract between plaintiff and defendant clearly indicates that collateral contracts with third parties were within the contemplation of the parties. Various third-party services and materials were required to be furnished by both plaintiff and defendant under the contract. Under such circumstances, plaintiff is entitjed to damages arising under such collateral contracts made as a result of the drilling contract. In McGuire v. Osage Oil Corporation, 55 S.W.2d 535 (Tex.Com.App., 1932) the Court stated that: “It is ‘ . practically the universal rule of law that recovery can be had for damages or losses resulting from collateral contracts affected by the breach of the suit contract, . . . . ” Plaintiff is entitled to recovery of such damages arising under collateral contracts, even if plaintiff has not paid for such third-party services, payment thereof being immaterial. Peacock v. Coltrane, 116 S.W. 389 (Tex.Civ.App., 1909, no writ hist.); Taylor v. Mark, 376 S.W.2d 927 (Waco, Tex.Civ.App., 1964, error ref., n.r.e.); and City of Houston v. United Compost Services, Inc., 477 S.W.2d 349 (Houston, Tex.Civ.App., 1st Dist., 1972, error ref., n.r.e.). It is fundamental that in breach of contract actions of this nature, the obligee is the only necessary party plaintiff to an action on the contract. Plaintiff is the only obligee under the subject drilling contract, and plaintiff, alone, has the right to enforce its contract with defendant. The third-party subcontractors may be themselves the owners of causes of action against plaintiff and/or defendant, or may be the beneficial owners of a portion of plaintiff’s cause of action herein. But these third-party subcontractors of plaintiff, even if equitable owners of interests in plaintiff’s cause of action, are neither indispensable nor necessary parties to plaintiff’s action on the contract. McNeil v. McLain, 272 S.W.2d 573 (Fort Worth, Tex.Civ.App., 1954, no writ hist.); Southern Kansas Ry. Co. of Texas v. Morris, 100 Tex. 611, 102 S.W. 396 (1907). In Matthews v. First State Bank, 312 S.W.2d 571, 580 (Beaumont, Tex.Civ.App., 1958, error ref., n.r.e.) the Court of Civil Appeals spoke directly to the point: “Had the appellants pointed out to the trial court the fact that such claims were being made and had alleged the validity of such liens, the court would probably have made them parties. They are, however, not necessary parties to this suit between the appellee bank and the appellants. . . . They were not necessary or indispensable parties to the present controversy between appellants and appellee. Since the appellants took no steps in the trial court to make these persons parties, they have waived such joinder.” The plaintiff, having ordered and caused such third-party sub-subcontractor services to be furnished herein, is entitled to assert and did assert and perfect and obtain judgment of foreclosure of its mechanic’s and materialmen’s lien to secure payment for such third-party services pursuant to Articles 5473 and 5476, Vernon’s Ann. Texas Revised Civil Statutes. Such lien statutes provide for the protection of defendant. Texas Revised Civil Statutes, Art. 5472e, Section 1 (Supp., 1974). The statutory trust so created and imposed upon plaintiff here is afforded broad and liberal construction. Panhandle Bank & Trust Co. v. Graybar Electric Co., Inc., 492 S.W.2d 76 (Amarillo, Tex.Civ.App., 1973, error ref., n.r.e.). The fiduciary responsibility of plaintiff with respect to any funds so paid by defendant is amply protected. Defendant under its contract with plaintiff is obligated to indemnify or to make plaintiff whole with respect to the $30,942.-85 obligation incurred for third-party services furnished under the subject drilling contract. By its point of error No. 4 the defendant contends that the trial court erred in awarding the plaintiff interest at ten percent per annum on $28,159.52 for equipment furnished and/or lost inasmuch as there is no provision of the contract or law which justifies the imposition of interest on this particular charge prior to the date of judgment. The plaintiff, by its Second Amended Original Petition, sought under its contract with defendant ten percent (10%) per an-num interest on the sum of $28,159.52 for services performed and equipment furnished and/or lost in the hole as provided in the subject drilling contract. The trial court, in its judgment, granted such ten percent per annum interest from December 20, 1972, until paid on such sum of $28,159.52. The drilling contract expressly makes defendant liable for services performed and equipment furnished and/or lost while performing day work and expressly obligates defendant to pay interest thereon in the amount and in the manner described and that “Any sum or sums not paid within 30 days after the due date hereinabove specified shall bear interest at the rate of 10 percent per annum from such date until paid.” The jury determined the value of such equipment and rendered judgment therefor, plus the interest specified by the contract. The right to interest is statutory and regulated, but, within such statutory framework, parties are at liberty to contract for the payment of conventional interest. Texas Revised Civil Statutes Annotated, Art. 5069-1.01 (c) (1971). “Under all of the authorities, the interest contracted for is a part of the debt, as much so as the principal.” First Nat. Bank v. J. I. Campbell Co., 52 Tex.Civ.App. 445, 114 S.W. 887, 890 (1908, no writ hist.). We find and hold that the parties to the above described drilling contract have agreed not only as to the principal obligations of defendant in case of operations on day work, but also for interest to be paid thereon, specifying both the rate of such interest payable by defendant and the time from which the same is payable. When plaintiff is entitled to judgment on the contract, plaintiff is also entitled to interest thereon as provided in the contract, and judgment of the court therefor shall be rendered accordingly. Seaboard Bank & Trust Co. v. Amuny, 6 S.W.2d 186, 189 (Beaumont, Tex.Civ.App., 1928, affirmed at Tex.Com.App., 23 S.W.2d 287, 1930). The fourth point is overruled. Having considered and overruled each of the appellant’s points of error we accordingly affirm the judgment of the trial court. Affirmed.

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Palmer BOWSER et al., Appellants, v. The COCA-COLA COMPANY, Appellee. No. 959. Court of Civil Appeals of Texas, Houston (14th Dist.). April 24, 1974. Rehearing Denied May 15, 1974. Robert E. Newey, Dazey & Newey, Houston, for appellants. Jon D. Totz, Ronnie Horsley, Daniel S. Trachtenberg, Lapin, Totz & Mayer, Houston, for appellee. COULSON, Justice. This is an appeal from a summary judgment against appellants Palmer Bowser, Jr., and Augusta J. Foster, Jr., individually and d/b/a B & F Food Center, a partnership, defendants below, and for appellee, the Coca-Cola Company. Suit was brought on a sworn account for $2,002 plus attorney’s fees. Appellants were allegedly served by substituted service under Rule 106, Texas Rules of Civil Procedure, at their place of business. They filed a motion to quash service, stating that appellee’s petition was served at appellants’ former place of business and that both appellee and its counsel had been informed by certified mail of appellants’ move and of their new addresses previous to the motion for substituted service. No hearing was ever requested nor was a ruling on the motion to quash ever made. Appellee then made a motion for summary judgment. The original was transmitted to the trial court on September 19, 1973, and a copy was transmitted by certified mail on that same day to appellants’ attorney. The motion stated that the hearing on it would be held on October 5, 1973. On October 2, 1973, the trial judge signed the order setting the hearing on the motion for summary judgment. The clerk’s file-mark on the motion is October 3, 1973. The hearing was held on October 5, 1973, and the motion for summary judgment was granted. Appellants neither answered the motion for summary judgment nor appeared at the hearing on the motion. No motion for new trial was filed. Appellants’ first argument is that the trial court erred in entering summary judgment without first ruling upon their motion to quash service. They assert that a case will be reversed and remanded when a motion to quash has been improperly overruled and a defendant has been rushed into a trial on the merits within the twenty-odd day period he should have been allowed under Rule 122, Tex.R.Civ.P. See Western Cottage Piano & Organ Co. v. Anderson, 97 Tex. 432, 79 S.W. 516 (1904). It is clear that the entry of summary judgment also necessarily constituted an overruling of the pending motion to quash service. Rule 325, Tex.R.Civ.P., provides: In cases of motions for continuance, or for change of venue, or other preliminary motions made and filed in the progress of the cause, the rulings of the court thereon shall be considered as acquiesced in, unless complained of in the motion for new trial; and the judge may recite in his order disposing of the motion for new trial the grounds of such ruling. Nothing in Rule 324 shall render a motion for new trial unnecessary in the instances mentioned in this Rule nor in instances of newly discovered evidence, misconduct, fraud or the like. Rule 324, Tex.R.Civ.P., states the instances in which a motion for new trial shall be a prerequisite to appeal. Since a motion to quash is a preliminary motion, the appellants cannot complain on appeal of any ruling on their motion to quash in the absence of a motion for new trial, even though the judgment appealed from is a summary judgment. In an analogous situation, the Supreme Court in City of Corpus Christi v. Gregg, 155 Tex. 537, 289 S.W.2d 746 (1956), said that Rule 325 required a motion for new trial as an appellate predicate to complain of the trial court’s ruling on a motion for continuance, despite the fact that the trial court has entered an instructed verdict which under Rule 324 did not require a motion for new trial as an appellate predicate. Appellants’ second argument is that they were not given the proper ten-day notice of the hearing on the motion for summary judgment, because the order setting the hearing was signed by the trial judge three days before the hearing and the motion was filed two days before the hearing. Appellants urge that this was a flagrant violation of the ten-day notice requirement of Rule 166-A(c), in that the date of filing commences the running of the ten-day period. Rule 166-A(c), Tex.R.Civ.P., provides in pertinent part: “The motion [for summary judgment] shall be served at least ten days before the time specified for the hearing.” Appellants do not dispute the fact that they received a copy of the motion for summary judgment more than ten days before the hearing and that the motion apprised them of the date of the hearing. Assuming that the method described above for setting the hearing and filing the motion was irregular, we cannot see in what manner appellants were harmed. Appellants were given more than ten days notice, and the fact that the motion was subsequently filed less than ten days before the hearing did not shorten the period in which they had been on notice of the hearing. Affirmed.

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2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

HOUSTON SASH & DOOR COMPANY, INC., et al., Appellants, v. William C. DAVIDSON, Jr., Trustee, Appellee. No. 7581. Court of Civil Appeals of Texas, Beaumont. May 9, 1974. Rehearing Denied May 30, 1974. William Emerson Wright, Houston, for appellants. David I. Kuperman, Gibbons & Spivey, Austin, for appellee. KEITH, Justice. This is a venue appeal wherein the plaintiff relied upon Subdivision 4, Art. 1995, Vernon’s Ann.Civ.St., to maintain venue in the county of suit. We will designate the parties as they appeared in the trial court. A somewhat extensive statement of the background of the suit is required to put the controversy into focus. Etta and Jay Levin instituted this suit against several corporations, their officers and directors claiming a malicious suppression of dividend payments and sought to recover, derivatively, damages for alleged corporate mismanagement. The Levins having taken refuge in bankruptcy, Davidson, as Trustee in Bankruptcy, was substituted as a party plaintiff. He maintained the original claims of the Levins in his amended pleadings; but, in his third amended original petition filed shortly before the hearing on the plea of privilege, he added an additional cause of action. The new count in the pleading alleged that one R. F. Michel had wrongfully foreclosed a pledge of certain stocks owned by Mrs. Levin in the several corporations and his prayer for relief read: “That the sale of the shares of stock described above be overturned and the Defendant R. F. Michel be compelled to turn over such stock to the Plaintiff in the event damages are not awarded and a dividend be not compelled.” One of the individual defendants was a resident of Travis County while one of the corporate defendants was domiciled therein. Plaintiff made no effort to prove any cause of action against any defendant, resident or non-resident, save and except that of wrongful foreclosure of the stock. At the very beginning of the hearing on the controverting plea, counsel for the appealing defendants, acting for all of the defendants then before the court, read into the record a “stipulation”: “ ‘That pursuant to the Plaintiffs prayer for relief, that the sale of the shares of stock described in the petition, to-wit, being the shares sold at the purported foreclosure sale under the security agreements executed by Jay and Etta Levin and described in the pleadings, said sale apparently having occurred on September 24, 1971, we stipulate that that foreclosure sale is and hereby be set aside and held null and void.’ ” This being an unexpected development, counsel for the plaintiff procured a short recess to study the matter before the hearing resumed. Thereafter, plaintiff’s counsel began the proof of his claim by stating: “We would like to begin by offering into evidence the stipulation first announced by Mr. Wright earlier this morning, if the Court Reporter will type this, and this will be Plaintiff’s No. 1.” Whereupon, the stipulation previously offered by defendants was accepted and received in evidence. In accepting the tendered stipulation by introducing it into evidence, plaintiff made a judicial admission that he had no cause of action for wrongful foreclosure at the time of the hearing and the entry of the order overruling the pleas of privilege. Justice Walker’s succinct holding in Gevinson v. Manhattan Construction Co. of Okl., 449 S.W.2d 458, 466 (Tex.1969), is dispositive: “A true judicial admission is a formal waiver of proof and is usually found in the pleadings or in a stipulation of the parties. * * * The vital feature of a judicial admission is its conclusiveness on the party making it. It not only relieves his adversary from making proof of the fact admitted but also bars the party himself from disputing it.” (emphasis supplied, citations omitted) Plaintiff was entitled to plead and prove inconsistent causes of action and seek alternative relief. Thus, his plea to overturn the foreclosure sale and his alternate prayer for damages caused by the alleged wrongful foreclosure were properly combined in a single suit. Rules 47 and 48, Texas Rules of Civil Procedure; McKenzie v. Carte, 385 S.W.2d 520, 526 (Tex.Civ.App., Corpus Christi, 1964, error ref. n. r. e.); Albright v. Long, 448 S.W. 2d 564, 566 (Tex.Civ.App., Amarillo, 1969, no writ); Cantu v. Bage, 467 S.W.2d 680, 682 (Tex.Civ.App., Beaumont, 1971, no writ). In this case, plaintiff pleaded his alternative causes of action and defendants could not put him to an election thereon in the venue hearing. Texarkana Water Supply Corp. v. L. E. Farley, Inc., 353 S.W.2d 885, 889 (Tex.Civ.App., Houston, 1962, no writ); Monroe v. Mercer, 414 S.W.2d 756, 760 (Tex.Civ.App., Houston, 1967, error dism.). The selection of one remedy where two are available is a waiver of the other. Thrower v. Brownlee, 12 S.W.2d 184, 186 (Tex.Comm.App., 1929); Bridwell v. Bernard, 159 S.W.2d 981, 984 (Tex.Civ.App., Fort Worth, 1942, error ref. w. o. m.); Employers Reinsurance. Corp. v. Wagner, 250 S.W.2d 420, 422 (Tex.Civ.App., Galveston, 1952, error ref. n. r. e.). Plaintiff, having two inconsistent remedies, only one of which could be granted, made his election; and, having made the election, he is bound thereby. Saner-White-man Lumber Co. v. Texas & N. O. Ry. Co., 288 S.W. 127 (Tex.Comm.App., 1926, holding approved). Plaintiff, citing Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 (1936), recognizes the rule, as indeed he must, that in seeking to maintain venue under subdivision 4 he must prove at the venue hearing: (1) at least one defendant resides in the county of suit; (2) the party asserting his plea of privilege is at least a proper party to the claim against the resident defendant; and (3) the plaintiff has a bona fide cause of action against the resident defendant. Plaintiff contends that he discharged the burden of proving a cause of action for wrongful foreclosure by offering proof that such a cause of action “existed as a matter of law at the time Appel-lee filed his Third Amended Petition.” Recognizing that he had no cause of action for wrongful foreclosure after he accepted the stipulation setting aside the foreclosure, plaintiff argues: “The cause of action against a resident defendant required by Subdivision 4 need exist only at the time the plaintiff files his suit.” In order to meet the contention so advanced, we will concede that the proof introduced at the hearing was sufficient to establish existence of a cause of action for wrongful foreclosure at the time of the filing of the pleading. But, when plaintiff accepted the stipulation offered by defendants by introducing the same in evidence, he made a judicial admission that the wrongful foreclosure had been set aside and was no longer a justiciable issue in the case. Thus, plaintiff established conclusively on the hearing of the pleas of privilege that he had no cause of action for wrongful foreclosure against either the resident or non-resident defendants. Since he made no effort to prove any other cause of action against the resident defendants, we now reach the determinative question in the appeal: In order to maintain venue under subdivision 4, Art. 1995, must plaintiff prove the existence of a cause of action at the time of the hearing against the resident defendant? Although we are of the opinion that the modern authorities require an affirmative answer to the question posed, we turn first to a consideration of the authorities which plaintiff claims requires a negative answer. Plaintiff relies upon a series of cases of doubtful precedential value which we decline to follow in this case. Primary reliance is placed upon Logan v. Ludwick, 283 S.W. 548 (Tex.Civ.App., Fort Worth, 1926, no writ). Even a cursory examination of this opinion reveals that the decision turned upon the applicability of subdivision 12, not subdivision 4. It has since been authoritatively determined that a plaintiff who pleads a lien and shows the location of the property in the county of suit need not establish by extrinsic evidence that he has a lien enforceable against the defendant. See, Morgan Farms v. Murray, 149 Tex. 319, 233 S.W.2d 123 (1950), approving the holdings in the underlying case reported sub nom., Morgan Farms v. Brown, 231 S.W.2d 790 (Tex.Civ.App., San Antonio, 1950). The comments in Logan with reference to subdivision 4 were neither necessary nor determinative of the case as presented by the record. Nor are we persuaded by plaintiffs reliance upon Harris v. Allison, 29 S.W.2d 413 (Tex.Civ.App., San Antonio, 1930, no writ). The third sentence in this opinion reads: “If a plea of privilege can be waived, it was waived in this case.” It is to be noted that the court cited Logan v. Ludwick, supra, for the proposition that jurisdiction having been acquired over Harris, the removal of the co-defendant from the suit by “death, compromise, or otherwise, did not destroy the jurisdiction over appellant.” (29 S.W.2d 413, emphasis supplied) We do not read Allison as supporting a rule that venue can be sustained when plaintiff fails to prove the existence of any cause of action against any defendant at the hearing on the plea of privilege. Plaintiff also quotes this language from Lewis v. Davidson, SI Tex. 251, 256 (1879): “[T]he suit was properly brought in the county of Harris in the first instance, as the [resident] co-defendant Austin then resided there; and the fact that he subsequently died, and the cause was dismissed as to him, would not divest the previously-acquired jurisdiction over the [non-resident] other defendant.” (emphasis ours) Plaintiff overlooks the fact that prior to 1907 the modern plea of privilege was in the nature of a plea in abatement going to the jurisdiction of the court over the person of the defendant which, if sustained, resulted in a dismissal of the suit. See, e. g., Blucher v. Milsted, 31 Tex. 621, 623 (1869); Brundidge v. Rutherford, 57 Tex. 22 (1882). In Stockyards Nat. Bank v. Maples, supra, the court recognized that an additional venue fact had been added by judicial construction; namely, “It is that the plaintiff to prevent the change of venue must also plead and prove that he has in fact a cause of action against the resident defendant.” (95 S.W.2d at 1302) Judge Smedley cited many cases in support of the holding that if plaintiff failed to prove the existence of a cause of action against the resident defendant, the plea of privilege must be sustained. We forego citing the long line of cases which has followed this clear pronouncement, simply pointing to the fact that the rule has continued vitality. See, e. g., Houseman v. Mahin, 390 S.W.2d 732, 735 (Tex.1965); A & M Construction Company v. Davidson, 485 S.W.2d 375, 377 (Tex.Civ.App., Waco, 1972, no writ). There is a comment in 32 Texas Law Review 441, 443 (1954), which succinctly states the rule applicable to this case. The author says: “To maintain venue under exception 4, the plaintiff has a three-fold burden of venue facts to sustain. He must prove that one of the defendants is a resident of the county of suit; that he has a bona fide cause of action against the resident defendant; and that the party asserting the plea of privilege is at least a proper party to the suit against the resident defendant. . . . “To satisfy the second requirement the plaintiff must plead and prove by a preponderance of the evidence each element of a bona fide claim against the resident defendant. It is at this point that the defendant obtains a preview of the plaintiff’s case. Park v. Wood, 146 Tex. 62, 203 S.W.2d 204, 205 (1947), and Glens Falls Indemnity Co. v. Sterling, 213 S.W.2d 858 (Tex.Civ.App., Dallas, 1948, mandamus overruled), cited by the author in support of the quoted material, are directly in point. The valuable right of a defendant to be sued in the county of his residence is not to be denied because of a doubtful construction of a venue exception. The application of the exception must clearly appear. Goodrich v. Superior Oil Co., 150 Tex. 159, 237 S.W.2d 969, 972 (1951). Plaintiff, laboring under the burden of proving at the venue hearing the existence of a cause of action against the resident defendant, may not deny the defendants their valuable right by showing the existence of a cause of action at the time of the filing of his pleading but none at the time of the hearing. There being no proof of the existence of a cause of action against the resident defendant at the hearing, the trial court erred in overruling the pleas of privilege of the defendants. The judgment of the trial court is reversed and the cause is remanded with instructions to transfer the entire cause, as to all of the appellants herein, to one of the District Courts of Harris County. Reversed and remanded with instructions. STEPHENSON, Justice (dissenting). I respectfully dissent. All of the cases in this state that I have read, do not support the conclusion reached in the majority opinion. In that opinion, the issue is drawn as follows: “In order to maintain venue under subdivision 4, Art. 1995, must plaintiff prove the existence of a cause of action at the time of the hearing against the resident defendant ?” It is apparent that question is susceptible of two entirely different meanings. Does it mean that proof of a cause of action must be made at the hearing of the plea of privilege? Or, does it mean that the cause of action must exist at the time of such hearing? All of the cases cited by the dissent simply hold that proof of a cause of action against the resident defendant must be made at the hearing without reference to the time of the existence of the cause of action. The Stockyards National Bank Case is the primary case relied upon in the dissent. There is not one word in that case to indicate it is decisive of the issue before us. Whether the cause of action existed at the time the plea of privilege was filed and not at the time of the hearing, simply is not in that case, or in any of the other cases cited in the dissent. It is conceded here that apparently there are no recent cases passing upon this point; however, all of the cases I have read hold that it is the time of filing the plea of privilege, rather than the time of hearing the plea of privilege, which controls. In Logan v. Ludwick, 283 S.W. 548 (Tex.Civ.App., Fort Worth, 1926, no writ), the resident defendant disclaimed any interest in the personal property being sued for and asked to be dismissed. At the venue hearing the trial court sustained the disclaimer and overruled the pleas of privilege of the two non-resident defendants. On appeal it was contended that venue could not be maintained under subdivision 4, because the cause of action against the resident defendant (Brock) no longer existed. The Court of Civil Appeals affirmed with this statement: “If Brock, at the institution of plaintiff’s suit, was a necessary or even a proper party, as we think he was, it would be immaterial that he was permitted to disclaim and be discharged upon the date of the trial of the pleas of privilege, his interest or right, such as it was, having at that time ended, for the court, having originally acquired jurisdiction under exception 4 of article 1830, would retain that jurisdiction throughout, in the absence of a plea that the allegations of the plaintiff’s petition showing jurisdiction had been fraudulently made, and there was no such plea. Brooks v. Chatham, 57 Tex. 31; Ablowich v. National Bank, 95 Tex. 429, 67 S.W. 79, 881; Ry. Co. v. Grayson Co. Natl. Bank, 100 Tex. 17, 93 S.W. 431; Ogburn-Dalchau Lumber Co. v. Taylor, 59 Tex.Civ.App. 442, 126 S.W. 48.” (283 S.W. 550) Other cases, under subdivision 4, are as follows: Harris v. Allison, 29 S.W.2d 413 (Tex.Civ.App., San Antonio, 1930, no writ); and Lewis v. Davidson, 51 Tex. 251 (1879). Cases under other subdivisions are: Boettcher v. Federal Land Bank of Huston, 142 S.W.2d 272 (Tex.Civ.App., Galveston, 1940, writ dism’d) (subdivision 29a); Ogburn-Dalchau Lumber Co. v. Taylor, 59 Tex.Civ.App. 442, 126 S.W. 48 (Tex.Civ.App., Texarkana, 1910, no writ) (subdivision 12); Beer v. Wheelock, 331 S.W.2d 92 (Tex.Civ.App., Waco, 1959, no writ) (subdivision 13). See also Slaton v. Anthony, 143 S.W. 201 (Tex.Civ.App., Amarillo, 1911, no writ). . Michel, a resident of Louisiana, filed a special appearance challenging the long-arm jurisdiction of the trial court and our record discloses that this matter is still pending undetermined in the trial court. . For a more extended discussion of the venue facts under this subdivision, see 1 McDonald, Texas Civil Practice (1965 Rev. Vol.), § 4.10.2, p. 434, et seq. . See, 1 McDonald, supra, § 4.20, p. 482, fn. 91, for a discussion of this facet of Logan v. Ludwick. .Such comment was appropriate since the plea of privilege was filed after Harris had appealed successfully from an earlier judgment entered following a trial upon the merits. See Harris v. Allison, 11 S.W.2d 821 (Tex.Civ.App., San Antonio, 1928, error dism.). . See 1 McDonald, supra, § 4.02, p. 410, for a definitive distinction between jurisdiction and venue in the context in which it was used in Allison, supra. . This rule was changed when the legislature adopted our modern procedure by Acts, 30th Leg., 1907, Ch. CXXXIII (13 Gammel’s Laws of Texas 248). We quote a portion of the emergency clause thereof: “Whereas, the fact that the laws of this State now provide no means for changing the venue in a case where a plea of abatement or privilege to be sued in a county different from that in which the suit is pending is sustained, and the near approach of the close of the session of the Legislature creates an emergency . . . .” .We do not indulge an unreasonable presumption when we attribute to Judge Smed-ley knowledge that the word “has” is the third person present indicative of the word “have”; and that when he used the present tense, he did not intend the past tense or “had”.

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2024-08-24T03:29:51.129683

LOYD W. RICHARDSON CONSTRUCTION COMPANY, Appellant, v. Robert S. CALVERT, Comptroller of Public Accounts of the State of Texas, Appellee. No. 7582. Court of Civil Appeals of Texas, Beaumont. May 2, 1974. Rehearing Denied May 30, 1974. Harris, Cook, Browning & Barker, Corpus Christi, for appellant. R. L. Lattimore, Asst. Atty. Gen., Austin, for appellee. STEPHENSON, Justice. This suit was brought by Loyd D. Richardson Construction Company (hereinafter called Company) against Robert S. Calvert, as Comptroller of Public Accounts for the State of Texas, for a refund of monies paid in state sales taxes. Trial was before the court and judgment was rendered that plaintiff take nothing. The sole question before the trial court and here is whether the lease transaction in question is exempt under the provisions of Article 20.04(V), Taxation-General, V. A.T.S., which reads as follows: “Transfers Without Substantial Change in Ownership. There are exempted from the taxes imposed by this Chapter the receipts from the sale, lease or rental of, and the storage, use or other consumption in this State, pursuant to the terms of a good faith bona fide contractual relationship, of an interest in tangible personal property to a partner, co-owner or other person who before or after such a sale owns a joint or undivided interest (with the seller) in such tangible personal property where the Texas Limited Sales, Excise and Use Tax has previously been paid on such tangible personal property.” We follow the rules of construction imposed upon us by an uninterrupted line of -decisions of the Supreme Court of Texas. One of the latest expressions is set forth in Hilltop Village, Inc. v. Kerrville Ind. Sch. Dist, 426 S.W.2d 943, 948 (Tex.1968): “All of the courts appear to pay homage to the rule that tax exemptions are subject to strict construction since they are the antithesis of equality and uniformity.” We find the statement in many many cases that exemptions from taxation are not favored and should be strictly construed. See Hedgecroft v. City of Houston, 150 Tex. 654, 244 S.W.2d 632 (1951); Santa Rosa Infirmary v. City of San Antonio, 259 S.W. 926 (Tex.Comm.App., 1924, judgment adopted); McCallum v. Associated Retail Credit Men of Austin, 41 S.W.2d 45 (Tex.Comm.App., 1931); City of Longview v. Markham-McRee Memorial Hosp., 137 Tex. 178, 152 S.W.2d 1112 (1941); Texas Unemployment Compensation Com’n. v. Bass, 137 Tex. 1, 151 S.W.2d 567 (1941). See also, Able Irrigation Company v. Calvert, 495 S.W.2d 270 (Tex.Civ.App., Austin, 1973, no writ). The facts were submitted to the trial court by stipulation, and are hereby an agreed statement. The Company was formed as a sole proprietorship in 1936 by Loyd W. Richardson. That business became a partnership in 1947 between Richardson and R. C. Thwing. Richardson died in 1958, and the business continued as a partnership, composed of Thwing and Richardson’s surviving widow. In 1960, the Loyd W. Richardson Construction Corporation was organized for construction purposes, with the partnership retaining title to all of the equipment. The partnership and corporation were owned jointly and equally by Thwing and Mrs. Richardson. In 1965, the parties created a trust agreement under which Thwing’s children became limited partners in the partnership, with an initial interest of 10 percent and reaching 30 percent by 1968. Under a written agreement, the corporation uses the equipment for which it makes monthly payments to the partnership. This is the lease transaction that plaintiff claims to be exempt. The issue presented in this case is one of first impression. The caption to this statute “Transfers Without Substantial Change in Ownership” is somewhat misleading. However, the clear wording of the remainder of this statute leaves little doubt as to the type of transaction which is made exempt from the payment of a sales tax. The key words are “There are exempted from the taxes imposed by this Chapter the receipts from the lease or rental of . . .an interest in tangible personal property to a partner, co-owner or other person who before or after such a [lease or rental] owns a joint or undivided interest (with the seller) in such tangible personal property. . . .” It is apparent that the transaction involved in the case before us does not come within the terms of this exemption. The lease or rental is not to a partner or a co-owner, and is not to a person who, before or after such' lease or rental, owns a joint or undivided interest with the [lessor] in such tangible personal property. The corporation does not own a joint or undivided interest in the leased equipment with the partnership, either before or after the lease is made. The only interest which the corporation has m the leased equipment is that which it acquired as lessee. It is clear to this court that the lessee-lessor relationship is not the type of joint ownership which would result in an exempt transaction under this statute. Affirmed.

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2024-08-24T03:29:51.129683

Robert W. DePUY et al., Appellants, v. William W. BODINE, Appellee. No. 15284. Court of Civil Appeals of Texas, San Antonio. April 10, 1974. Rehearing Denied May 15, 1974. R. Knox Jones, McAllen, for appellants.. Perkins, Davis, Oden & Warburton, L. H. Warburton, Jr., Alice, for appellee. BARROW, Chief Justice. Appellants, Robert W. DePuy, Delia DePuy and Clinton Manges, have perfected this appeal from a take-nothing summary judgment rendered for appellee in appellants’ suit for rescission of the sale of a ranch in Duval County, because of the alleged fraudulent misrepresentation by ap-pellee as to the zoning status of a small tract in the city of Corpus Christi, which was conveyed to appellants as part of the consideration for the sale. The summary judgment was heard after full discovery was had, and there are nine oral depositions in the record, as well as numerous exhibits. Some facts are undisputed. On March 14, 1970, appellants sold to appellee a 9,271.84 acre ranch for a total consideration of $704,500.00, which was satisfied as follows: appellee assumed notes totaling $500,000.00, paid $157,481.77 in cash, and conveyed a 10 acre tract as well as a connecting 0.45 acre tract in Nueces County for an agreed valuation of $50,725.00. On May 1, 1970, appellants sold the 10 acre tract in Nueces County for the sum of $51,285.00. Appellants still own the 0.45 acre tract, and the controversy grows out of the zoning status of this tract. Appellants alleged that appellee represented that this tract was zoned “commercial,” whereas its use is limited to. one-family residential under the zoning ordinance of Corpus Christi. Such representation is largely based on an engineer’s plat of the Nueces County property furnished appellants by appellee which is identified as “Proposed Inwood Village Unit-4,” and on which the 10 acre tract is subdivided into. 55 lots and the 0.45 acre tract is marked “commercial.” Although the issue is vigorously controverted by appellee, we must accept as true on this summary judgment appeal, the testimony of DePuy that appel-lee represented to appellants that this tract was zoned for commercial use. The only relief sought by appellants is rescission, and this relief was denied by the trial court on several grounds which are now relied upon by appellee in support of the take-nothing judgment. It is urged that rescission will not lie in that appellants cannot restore the status quo since they have sold the 10 acre tract. Furthermore, it is asserted that this sale was made after appellants had actual or constructive notice of the zoning status of the small tract; and, therefore, appellants ratified the sale of the Duval County Ranch. Ap-pellee further points out that appellants have not made any effort to restore the status quo and, in fact, cannot do so since substantial judgment liens have been placed of record against appellant, DePuy. No tender whatsoever was made, but appellants do have a general allegation that they “are willing to do equity.” Cf. City of New Braunfels v. City of San Antonio, 212 S.W.2d 817 (Tex.Civ.App.—Austin 1948, writ ref’d n. r. e.). The trial court did not err in entering a take-nothing judgment in this suit for rescission. Clearly, the status quo can not be restored because of the sale of part of the land and the filing of substantial judgment liens against appellant, DePuy. The general equitable rule is that a plaintiff in a suit for rescission or cancellation of a contract or deed to which he is a party must ordinarily restore the consideration received by him or, in other words, re-establish the status quo of the other party. Texas Company v. State, 154 Tex. 494, 281 S.W.2d 83 (1955); McDonald v. Simons, 280 S.W. 571 (Tex.Commn.App.1926, opinion adopted); Guion v. Guion, 475 S.W.2d 865 (Tex.Civ.App.—Dallas 1971, writ ref’d n. r. e.); Whitfield v. Klein Independent School District, 463 S.W.2d 232 (Tex.Civ.App.—Houston [14th] 1971, writ ref’d n. r. e.); 10 Tex.Jur.2d, Cancellation of Instruments, Section 45 (1959). Appellants do not rely on any exceptions to this general rule. Such equitable rule has particular application here in that the record demonstrates that the 10 acre tract was conveyed by appellants on May 1, 1970, which was nearly a month after their lawyer was advised that the 0.45 acre tract in question was zoned for residential use. By accepting the benefits of said contract after notice of the alleged fraud, appellants affirmed the contract and waived their right of rescission. Rosenbaum v. Texas Building & Mortgage Company, 140 Tex. 325, 167 S.W.2d 506 (1943); Gaston v. Copeland, 335 S.W.2d 406 (Tex.Civ.App.—Amarillo 1960, writ ref’d n. r. e.); Woods v. Fisher, 106 S.W.2d 774 (Tex.Civ.App.—Texarkana 1937, no writ); 13 Tex.Jur.2d, Contracts, Section 265 (1960). The sole relief sought here by appellants is the equitable remedy of rescission. The trial court did not err in concluding from the undisputed summary judgment evidence that appellants are not entitled to such relief. The court, therefore, properly entered a take-nothing judgment. The judgment is affirmed.

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Robert S. CALVERT, Comptroller of Public Accounts, et al., Appellants, v. ELECTRO-SCIENCE INVESTORS, INC., et al., Appellees. No. 12149. Court of Civil Appeals of Texas, Austin. May 1, 1974. John L. Hill, Atty. Gen. of Tex., Robert Shaw MacIntyre, Jr., Gordon C. Cass, Asst. Attys. Gen., Austin, for appellants. Richard L. Jackson, Johnson, Bromberg, Leeds & Riggs, Dallas, for appellees. PHILLIPS, Chief Justice. This suit was brought by Electro-Science Investors, Inc. against the Comptroller of Public Accounts to challenge the Comptroller’s computation of its franchise tax under Subsection (d) of Article 12.02(1), Taxation-General, Vernon’s Annotated Texas Statutes. Electro-Science Investors, Inc. sought recovery of the taxes it had paid under protest. At the conclusion of a summary judgment proceeding, the trial court awarded Electro-Science, Inc. the entire amount of tax in question. We affirm the judgment. The Comptroller, represented by the Attorney General, has perfected his appeal to this Court and is before us on three points of error. Appellants’ first point contends that the trial court erred in its interpretation of the word “net” in the phrase, “shall include only the net gain from such sales,” in Article 12.02(1) (d), of the franchise tax statutes, Taxation-General, Vernon’s Annotated Texas Statutes. We overrule this point. That statute reads in part: “Art. 12.02 Allocation Formula (l)(a) Each corporation liable for payment of a franchise tax shall determine the portion of its entire taxable capital taxable by the State of Texas by multiplying same by an allocation percentage which shall be the percentage relationship which the gross receipts from its business done in Texas bear to the total gross receipts of the corporation from its entire business. “(d) For the purpose of this Article, the term ‘total gross receipts of the corporation from its entire business’ shall include all of the proceeds of all sales of the corporation’s tangible personal property, all receipts from services, all rentals, all royalties and all other business receipts, whether within or outside of Texas. Provided, however, that, as to the sale of investments and capital assets, the term ‘total gross receipts of the corporation from its entire business’ shall include only the net gain from such sales.” (Emphasis added) In 1968 appellees were assessed $9,842.79 additional franchise tax, penalty and interest: Appellees paid the additional tax under protest and proceeded with this suit to recover the tax. The transactions in question in this litigation are the “sale of investments and capital assets” within sub-division (d) of the cited statute. The question arises as to the computation of the “net gain from such sales” for purposes of arriving at the allocation formula set forth in sub-division (l)(a). Appellants contend that “net gain” refers in fact to only the gain of the appellees, and as such should be computed as the receipts from its sale, less its original cost, depreciation, applicable expenses, etc., i. e., its “base.” Appellants argue that Article 12.02(1) (d) was designed to accurately represent the amount of business done in Texas; that the Comptroller’s interpretation is correct because it is the most accurate representation of the extent of the corporate taxpayers’ business in the state; that Article 12.02(1) (d) utilizes only gains from the sale of capital assets and securities when determining total gross receipts for franchise tax purposes. Losses are also utilized, but they are deducted from the corporation’s surplus. This, contends the Comptroller, allows the corporate taxpayer to take advantage of its sale losses as well as its gains when computing its franchise tax; that to allow the deduction of losses from gains would not accurately represent the amount of a corporate taxpayer’s business. The Comptroller then states: “That concept [i. e. that of appel-lees], subtracting loss from gain to achieve net gain, is appropriate perhaps in the computation of one’s federal income tax, but it is inappropriate for computing a corporation’s franchise tax in Texas.” Appellees contend that appellants’ method of computation shows only the “gain” on a particular sale and that to have a “net gain” (or for that matter net loss) there are assumed to be a series of sales or transactions whereby either a gain or a loss can occur, so that by evaluating or comparing the results of such sales or transactions, a “net gain” can he determined. If such were not the case, the word “net” in the statute would be of no effect, since “gain” from such sales would accomplish the result sought by appellants without the inclusion of the modifying term “net.” The statute does not provide us with a definition of net gain. In a case handed down this day, No. 12,130, and styled Texas Pipe Line Company v. Calvert, 510 S.W.2d 168, we referred to Section 1 of Article 10, Vernon’s Ann.Civil Statutes, wherein the Legislature set forth rules of construction to be applied to all civil statutes. The first of these rules is that, “The ordinary signification should be applied to words . . . ” This has been referred to as the “plain meaning” rule Which, in effect, directs a court to enforce an act as written. Webster’s New International Dictionary, Second Edition, defines “net”: “to produce or gain as clear profit; as he netted, a thousand dollars by the operation.” By the plain meaning of the words in the statute we must conclude that net gain requires that gains and losses be offset against one another in order that a net figure be obtained. There is no ambiguity in the language of the statute in question, and there is no doubt as to what its ordinary meaning is. Steakley v. West Texas Gulf Pipe Line Company, 336 S.W.2d 925 (Tex.Civ.App.1960, no writ). As well-intentioned as the interpretation chosen by the Comptroller may be, we have no choice but to set it aside. In view of the position we have taken in this case, we need not discuss appellants’ remaining points which concern established administrative procedures. The judgment of the trial court is in all things affirmed.

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Benny BAKER, Appellant, v. Herman Alton MYERS, Appellee. No. 5329. Court of Civil Appeals of Texas, Waco. March 6, 1974. Bailey, Williams,' Westfall and Henderson, G. David Westfall, Dallas, for appellant. Mike Schmidt, Dallas, for appellee. OPINION McDONALD, Chief Justice. This court on February 25, 1974 entered its order extending time for filing of Transcript and Statement of Facts in this cause to such date. February 8, 1974 was the last day for filing such Transcript and Statement of Facts; same were not filed, but on February 15, 1974 appellant moved for additional time in which to file same, asserting good cause for failing to file up to that date. The record reflects the Transcript could have been delivered by the District Clerk to appellant at least three weeks prior to February 15, 1974; and that the Statement of Facts was delivered to appellant on February 1, 1974. Thus appellant has not established that he could not have filed same in this court on or before February 8, 1974. In such situation good cause for extension of time for filing under Rule 386 Texas Rules of Civil Procedure did not exist; Matlock v. Matlock, 151 Tex. 308, 249 S.W.2d 587; Patterson v. Hall, S.Ct., 430 S.W.2d 483. Order dated February 25, 1974 extending time for filing Transcript and Statement of Facts is vacated; and Motion for Extension of Time for filing such Transcript and Statement of Facts is overruled.

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Jimmie R. PHAGAN, Appellant, v. The STATE of Texas, Appellee. No. 17494. Court of Civil Appeals of Texas, Port Worth. April 19, 1974. Rehearing Denied May 24, 1974. Beard & Kultgen, and Charles B. Mc-Gregor, Waco, for appellant. Fillmore, Parish, Martin, Kramer & Fillmore, and H. Dustin Fillmore, Wichita Falls, for appellee. OPINION MASSEY, Chief Justice. The appeal is from a judgment of disbarment. By a special issue verdict Jimmie R. Phagan, who had been licensed by this State to practice law, and who possessed a membership card in the State Bar of Texas, was found to be guilty of professional misconduct. Verdict of the jury so finding was filed of record on May 11, 1973. On May 25, 1973 a supplemental hearing was held before the court, without a jury, for the purpose of determining punishment. Judgment of disbarment was rendered on May 29th. Written judgment was signed June 13th and filed of record June 14th. On procedure and authority therefor see Vernon’s Ann.Civ.St. 320a-l, “State Bar Act”, and Appendix, “State Bar Rules”, Article XII, “Discipline and Suspension of Members”, and the sections 1 to 28 thereunder. We affirm. Appellant Phagan advances for the first time on appeal the contention that there was fundamental error by proceedings “when the State was not properly before the court as a party”. Prosecution of the proceedings of disbarment was by the State Bar of Texas and no official such as the District Attorney, County Attorney, or Attorney General was participant. Indeed the appellant was, at time of the proceedings, the regularly elected District Attorney. However, because of such failure appellant claims fundamental error because of the nonparticipation of any one of such officials and a consequent unconstitutionality in the proceedings. We overrule the contention. Article 320a-l, under its Section or Article XII, Appendix, “State Bar Rules”, Sec. 23, “Counsel for Prosecution of Disciplinary Actions”, provides, in part, as follows: “The Committee may appoint counsel for the prosecution of disciplinary actions. . . . upon request made by the Committee to the District Attorney of the county in which the action is to be tried, it shall be his duty to represent it in such actions, either alone or in association with counsel for the Committee, at the option of the Committee.” Such provisions were ruled upon in Arnett v. State, 304 S.W.2d 386 (Eastland, Tex.Civ.App., 1957, writ ref., n. r. e.). On page 388 Justice Long, for the court, held that the proceeding of disbarment was not actually one in behalf of the public generally. Had the holding been an incorrect statement of the law it would have been unlikely that the Supreme Court would have disposed of the petition for writ of error, subsequently filed, by its notation of “no reversible error”. In Arnett v. State, supra, it was written in connection with the holding: “By his first point defendant asserts the court erred in overruling his plea in abatement based upon the failure of the county attorney, the district attorney or the attorney general of Texas to join as a representative of the plaintiff. We find no merit in this point. In 1939 the Legislature enacted the State Bar Act, Article 320a — 1, V.A.C. S., which had for its purpose the regulation of the practice of law. The act created the organization known as the State Bar of Texas composed of the registered, licensed attorneys of the State and constituted it an administrative agency of the judicial department. . . . The primary purpose of the legislature in the enactment of the statute was to protect the public by eliminating from the legal profession those morally unfit to enjoy its privileges. . ” Following the holding that the proceeding of disbarment was not actually one in behalf of the public generally, with the implication that if it had been the rule might be different, Justice Long found substantial authority for the court’s conclusion upon the law in the opinion of Hexter Title & Abstract Co. v. Grievance Committee, etc., 142 Tex. 506, 179 S.W.2d 946, 949, 157 A.L.R. 268 (1944) and language referred to therefrom, despite the fact that the case was one bearing upon propriety of suit by the Grievance Committee to prohibit the unlicensed practice of law. He also cited Brown v. Linkenhoger, 153 S.W.2d 342 (El Paso Tex.Civ.App., 1941, writ refused, want of merit) to the effect that the power of the Supreme Court to make our State Bar Rules should attribute to those rules all the effects of statutes when properly promulgated and established, and that thereby is to be found that authority to institute and maintain a suit for disbarment of an attorney is vested specifically in the Grievance Committee of the district in which such attorney resides. Further, complaining for the first time on appeal, appellant advances the contention that there was fundamental error in that the judgment of disbarment showed on its face that in part it was rendered upon inadmissible hearsay evidence not produced as original evidence on trial, but introduced before the Grievance Committee antecedent to the disbarment suit. Although procedure below was by bifurcated trial, i. e. by trial as to all issues save punishment before a jury, with a subsequent hearing and trial before the court alone for the purpose of determining penalty at which the evidence complained of became admitted, our holding is that there was no fundamental error and furthermore not an error about which appel-lant0might complain on appeal for the first time. The error (which for purposes of the question we will treat as existent) was waived by the failure of appellant to complain in his motion for new trial. A motion for new trial was filed, but no assignment of error therein included complaint which appellant now presents to this appellate court.' Appellant’s right to complain, if existent, was waived. Texas Rules of Civil Procedure, rule 374, “Assignments of Error”. By a point of error appellant contends that the trial court erred by admitting evidence that the County Grievance Committee and the District Grievance Committee had found him guilty of the misconduct charge. We find no assignment of error in his motion for new trial as a predicate for the contention. Therefore the complaint is waived. If a complaint was preserved we find from the statement of facts that the error did not occur, and that there was no such evidence. Had there been such and had it been sought to be introduced it surely would have been evidence as to which appellant would have interposed an objection. We can find no objection which was overruled applicable to evidence of any “finding of guilt” by a Grievance Committee. By a point of error appellant complains because an affidavit of an attorney by the name of Jimmy Castledine was excluded from evidence. This attorney had formerly represented the plaintiff in a divorce proceeding in which the appellant was the attorney for the defendant husband. It was in connection with his alleged misconduct by a concealment and misappropriation of property of the parties to this divorce proceeding, initially against the interest of Castledine’s client and in violation of the court’s order, and eventually against the interest of both his own client as well as that of Castledine — and in violation of court order — that disbarment of the appellant was sought to be effected. Mr. Castledine was alive at time of proceedings before the Grievance Committees, but by time of the trial he had died. There were two tenders of the affidavit into evidence in behalf of the appellant; initially upon the trial before the jury, and subsequently upon the later hearing for purposes of the determination of punishment. It was offered without qualification as to content or without qualification as to purpose for which its admission was desired on both occasions. We will first consider the occasion ok its tender upon the trial before the jury. The plaintiff State, through the State Bar Committee, introduced all its evidence and rested. The appellant/defendant tendered no witness. As part of the State’s case appellant had been put on the stand with his testimony developed fully on direct and cross examination. As his defense case appellant merely tendered the affidavit. Then appellant rested his own case. In connection therewith there was a discussion about admissibility of the affidavit by counsel for appellant with the court. At the conclusion of this discussion appellant’s attorney stated, “And in view of the Court’s feeling about it, then we will, of course, not tender it in evidence.” We deem it apparent that there was no tender. If it be possible that it might be construed to have been there was no bill of exceptions made. A bill of exceptions would be essential to lay the proper predicate for an assignment of error in the motion for new trial. In this case it would be essential that the matter of error be first raised in appellant’s motion for new trial. T.R.C.P. 324, “Prerequisites of Appeal”; T.R.C.P. 374, “Assignments of Error”; T.R.C.P. 418, “Briefs: Contents.” We next consider the occasion whereby the Castledine affidavit was tendered upon the hearing upon punishment. There it might be said to have been excluded under circumstances whereby it was made part of the record by a bill of exception. At that stage the contents of the affidavit could have only borne upon the question of punishment. Appellant’s guilt was established upon the jury trial and verdict. The jury had been discharged. However, there would be no doubt that it was hearsay. It is apparent that insofar as the affidavit had relation to the guilt or innocence of the appellant of the misconduct relied upon by the State as justification for disbarment it was immaterial and of no importance to the trial court. It was to the guilt, however, that the affidavit was related so denial of its admission would be “harmless error” in any event. But appellant’s guilt was by this time established; it had ceased to be a question for determination. On appellant’s contention that the affidavit constituted a declaration against interest by Castledine and Castledine’s client and as such became admissible as an exception to the hearsay rule we observe that there would have been no proper predicate laid for its acceptance. This was so because it was never shown that at the time Castledine made the affidavit it then constituted a declaration against the then existent interest of Castledine or his client. Furthermore the exception to the hearsay rule on admissibility of declarations against interest contains the element of “no probable motive to falsify.” If the conditions surrounding the making of a declaration against interest do not assure trustworthiness the statement ought not to be admitted into evidence. V Wigmore on Evidence, Third Edition, p. 262, et seq., “Exceptions to the Hearsay Rule”, Sub. “Statements of Facts Against Interest”, Sec. 1457, “(The Circumstantial Probability of Trustworthiness) — General Principle” ; and Sec. 1461, “Statements of Sundry Facts against Interest”. Necessarily the trial court passes upon a mixed question of law and fact in making the determination of admissibility of evidence tendered under the exception and where it has the discretion to make the determination of admissibility its exercise of such discretion will not be disturbed in the absence of abuse. In the instant case there was evidence invoking its discretion since assurance of affidavit trustworthiness was not apparent as a matter of law. On appellant’s contention that the affidavit constituted evidence adduced pursuant to prior proceedings and as such became admissible under an exception to the hearsay rule, the premise for the contention lay in the proceedings before the District Grievance Committee which recommended the trial of disbarment. Thereat the Committee received and presumably considered Mr. Castledine’s affidavit in the course of the proceedings conducted preliminary to the recommendation. Mr. Cas-tledine was then living but was not summoned by anyone to testify. In the earlier mentioned State Bar Rules under the Act (320a — 1) there is Article XII pursuant to which all relevant proceedings were conducted. Under Art. XII is Sec. 13, “Notices Issued to Witnesses”. It provides that in any investigation or hearing before the Grievance Committee it is empowered to require the attendance of witnesses. The notices are such as might be served officially, and it is directed that such shall be issued at the request of the Committee, or the accused attorney, though in the latter case without expense to the State Bar; obviously at the expense of the accused attorney if he desires testimony before the committee by any such witness. At the Grievance Committee hearing the appellant, apparently for the first time (though it is obvious that theretofore appellant had notice thereof), demanded that Mr. Castledine be summoned as a witness. Of course, even aside from the matter of expense attendant to the summons for which appellant made no offer to provide, there was the matter of time for Mr. Cas-tledine to appear in obedience to a summons. The Committee was in session and there was no showing of availability of the witness without adjournment of the hearing. The Committee indicated that it would proceed. Mr. Castledine’s affidavit was tendered and received and it was apparently taken into consideration by the Committee. It is the contention of appellant that the affidavit qualified as evidence in the prior proceeding before the Committee, and as such was admissible as an exception to the hearsay rule. Before the Committee the affidavit was of course ex parte. Treating Cas-tledine as the appellant’s witness there was, of course, no opportunity afforded anyone else — or the Committee as the forum — to make inquiry of Castledine by any form of cross examination. It is for that reason, if none other, that the affidavit would not be receivable in evidence upon trial below as testimony of Mr. Castledine. It did not qualify as admissible evidence under the exception to the hearsay rule as evidence in a prior proceeding. VI Wigmore on Evidence, Third Edition, page 39, “Exceptions to the Hearsay Rule”, Sec. 1709, “(Affidavits) — Affidavits inadmissible at Common Law; Exceptions Recognized”; 31A C.J.S., “Evidence”, part IX, “Former Evidence”, § 390, “Opportunity for Cross-Examination”, page 9S9; McCormick & Ray, Texas Law of Evidence, page 583, “Exceptions to Hearsay Rule — Evidence in Previous Proceedings”, Sec. 455 “ — The Character of the Trial or Proceeding in which the Former Testimony was Taken” (and in the Second Edition see Vol. 1, page 734, et seq., Sec. 952, et seq.). After the evidence was concluded, the argument made and the case submitted to the jury written questions were sent out by the jury. They were answered in writing by the court. Eventually, when another question arose the entire jury was brought back into the courtroom and the court proceeded to instruct it orally concerning the special issues and manner in which the jury should arrive at its answers to them. The court reporter was present and reported these proceedings. No objection was made because of what the court was about to do when it was obvious that he would orally instruct the jury, and no bill of exceptions was made because of what was done or said during the period of instruction. To explain: July 11, 1973 the amended motion for new trial was filed, but the stenographer’s transcript of the oral instructions by the court was not written up until October 11, 1973, after appellant’s motion for new trial had been overruled. The transcript was filed among the papers by the clerk of the court. Nothing therein shows that anything whatever on the part of anyone else present was part of the proceedings themselves or had relation thereto after the occurrence. Nothing thereon is indicative that any bill of exceptions was taken. However, of this appellant complains in the appellate court. We find nothing in what was said or done to have constituted reversible error, but assuming that such was existent it was waived since appellant did not avail himself of a bill of exceptions. By his motion for new trial the appellant assigned error by the trial court “in giving conflicting instructions to the jury during their deliberations”, but nothing- in the court’s instructions could be construed as conflicting. On the waiver see 3 McDonald, Texas Civil Practice, 1970 Revision, page 206, “Jury Trial: General”, Sec. 11.20.2, “(Receipt of Evidence. B. Conduct of the Judge) (II) Comment on Weight of Evidence”. In the court’s charge to the jury there were inquiries relative to six acts by the appellant alleged to constitute professional misconduct. Of these the jury found five to have amounted to such; and of one of them appellant made complaint that there was no evidence to support the finding. That one was the finding that appellant had wilfully commingled and mixed income from certain oil interests in Throckmorton County, Texas with his own private funds without the consent of his client. We have examined the statement of facts and have found that there was evidence raising the issue and supporting the finding thereon returned by the jury. In any event to sustain the contention of appellant in his complaint would avail him nothing. The judgment would still find support by the findings on misconduct in five other respects, and of these no complaint is made. In his supplemental brief appellant shows that May 29, 1973, date recited in the judgment as that on which it was rendered, the judge of the court was not in Wichita County, but in Fort Worth, and hence the judgment was not rendered “in open court”. It is not clear whether appellant seeks some advantage because of this. If it had been error the error was waived. It is not the subject of any assignment or point of error. Furthermore the dates of June 13th when the written judgment was signed and June 14th when it was filed with the clerk of the court in Wichita County are those of materiality. The circumstance could not have afforded appellant any benefit of which he could take advantage in any event. Winton v. Davenport, 275 S.W.2d 725 (Fort Worth Tex.Civ.App., 1955, no writ or other history). We consider our discussion to cover appellant’s entire complaint on appeal. In any event we have considered every point of error by which there has been complaint and overrule all of them. Judgment is affirmed.

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Earl DELLEY et al., Appellants, v. The UNKNOWN STOCKHOLDERS OF the BROTHERLY AND SISTERLY CLUB OF CHRIST, INC., et al., Appellees. No. 756. Court of Civil Appeals of Texas, Tyler. April 18, 1974. Rehearing Denied May 16, 1974. Goodwin & Jarrel, Willis Jarrel, Tyler, for appellant Earl Delley. Kirkpatrick, Grant, Dennis & Ammer-man, Ronald Ned Dennis, Marshall, for appellant Ruby Watley Brown. Blanchard, Walker, O’Quin & Roberts, John T. Cox, Jr., Shreveport, La., Abney & Baldwin, Gaines Baldwin, Marshall, for appellee Arkansas Louisiana Gas Co. MOORE, Justice. This is an action in trespass to try title. The suit was originally instituted by Ruby Watley Brown, plaintiff, as sole heir of her father and mother, W. W. Watley and Minnie Elizabeth Watley, both deceased. Plaintiff sought a recovery of title and possession of the remaining portion of a two-acre tract of land after a part thereof had been condemned by the State of Texas for highway purposes, and to recover the sum of $13,761.60 paid into the registry of the County Court as damages for the land taken and the destruction of a nursing home situated thereon. Plaintiff instituted suit against defendants Earl Delley and Arkansas Louisiana Gas Company (hereinafter referred to as the “Gas Company”), as well as other defendants not parties to this appeal. Defendant Delley answered with a plea of not guilty and filed a cross action in trespass to try title. Defendant Arkansas Louisiana Gas Company answered with a plea of not guilty and affirmatively alleged that it was entitled to a first lien on the land and funds deposited for the taking by virtue of a deed executed by The Brotherly and Sisterly Club of Christ, Inc. (hereinafter referred to as the “Nursing Home”), to W. W. Watley, plaintiffs father, and defendant Earl Delley, wherein Watley and Delley expressly agreed to assume a certain debt owed by the Nursing Home to the Gas Company. The Gas Company prayed for a recovery of the debt and for foreclosure of its equitable lien. Ruby Watley Brown, administratrix of the estate of Minnie Elizabeth Watley, intervened in the suit seeking a recovery of title to the undivided community interest in the land owned by her mother at the time of her death. After a trial before the court, sitting without a jury, the trial court rendered judgment finding that the Gas Company was entitled to a first lien and ordered that the debt, together with attorney’s fees and interest in the amount of $6,612.56, be paid to the Gas Company out of the funds on deposit in the County Court. The judgment further awarded plaintiff Ruby Wat-ley Brown, individually and as administra-trix of the Estate of Minnie Elizabeth Wat-ley, seventy percent (70%) and the defendant, Earl Delley, thirty percent (30%) of the title to the land and the funds remaining in the hands of the County Clerk of Harrison County, Texas, after the satisfaction of the judgment awarded to the Gas Company. A “take nothing” judgment was rendered against all other parties and the judgment against them became final. Earl Delley duly perfected an appeal to this court. While Ruby Watley Brown, individually, also attempted to appeal, the record shows that neither her motion for new trial, notice of appeal nor appeal bond were timely filed. For convenience the parties will hereinafter be referred to by their respective names rather than as appellant and appellee. The trial court filed extensive findings of fact and conclusions of law. The following facts, stated in chronological order, are not in dispute. The two-acre tract of land in question was, acquired by The Brotherly and Sisterly Club of Christ, Inc., on November 14, 1959. It was used for the purpose of operating a nursing home thereon. In 1962, the Nursing Home contracted with the Gas Company for the installation of a central air conditioning system in the building. Payment was secured by a note and chattel mortgage. Financial difficulties seem to have plagued business from the beginning and as a result the Nursing Home soon fell in arrears on its payments to the Gas Company, as well as numerous other creditors. On February 2, 1967, the indebtedness to the Gas Company was renewed and extended. Finally on July 5, 1967, the directors of the Nursing Home corporation passed a resolution authorizing the officers to sell the land and business for the sum of $100.00, provided the purchaser agreed to assume the debts due and owing to seven specified creditors, including the Gas Company. In February, 1968, the corporation sold the premises to W. W. Watley and Earl Delley. A deed was executed conveying W. W. Watley seventy percent (70%) and Earl Delley thirty percent (30%) of the property. The corporate resolution authorizing the sale contained a stipulation that the grantees agreed to assume the indebtedness of the Gas Company and other creditors. The resolution was incorporated in the deed. At the time Watley and Delley accepted the deed, the Nursing Home owed the Gas Company the sum of $3,847.41. After the purchase Watley continued to operate the Nursing Home. The business continued to suffer financial problems, and as a result Watley, as superintendent, commenced borrowing money from Delley for operating expenses. Finally on May 14, 1968, W. W. Watley and wife, M. E. Watley, borrowed the sum of $2,000.00 from Delley. As security for the loan, they jointly executed a promissory note and a deed of trust on their seventy percent (70%) interest in the Nursing Home premises. The note was payable in two installments, the first in the amount of $1,000.00, being payable one year after date and the second two years after date. On October 6, 1968, W. W. Watley died intestate, leaving as his sole survivors his wife, M. E. Watley, and plaintiff, Ruby Watley Brown. On July 14, 1970, Minnie Elizabeth Watley died intestate, leaving Ruby Watley Brown as her sole surviving heir. Thus, Ruby Watley Brown, under the laws of descent and distribution, inherited the seventy percent (70%) interest in the premises owned by her father and mother subject to the debt due and owing the Gas Company and the debt due and owing Delley. On August 4, 1970, the trustee, acting under the power conferred by the deed of trust, sold the property to Earl Delley for the sum of $500.00. As a result Earl Delley became the owner of record title to the land in question. On April 13, 1971, a judgment was rendered in the County Court of Harrison County condemning approximately one-half of the land for highway purposes. As a result, the Nursing Home, including the air conditioning equipment installed by the Gas Company, was taken. The County Court judgment awarded damages for the taking in the amount of $13,761.60 which was deposited in the registry of the County Court payable to all parties involved in the present suit. Title to the land, as well as title to the funds, stood in this posture at the time plaintiff Ruby Watley Brown filed the present trespass to try title action on June 10, 1971. We will hereinafter undertake to determine the title owned by each of the parties under the record before us. THE TITLE OF ARKANSAS LOUISIANA GAS COMPANY The judgment in favor of the Gas Company recites as follows: “IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the defendant, Arkansas Louisiana Gas Company, has a claim and valid first lien against the Thirteen Thousand, Seven Hundred, Sixty-one and 6%oo Dollars ($13,761.60) now on deposit in the office of the defendant, Glenn Link, County Clerk of Harrison County, Texas, and that the defendant, Arkansas Louisiana Gas Company recover from such funds the sum of Five Thousand, Seven Hundred Seventy-six and 3%oo Dollars ($5,-776.36) principal and interest, together with the sum of Eight Hundred, Thirty-six and 2%oo Dollars ($836.20) attorneys fees, with interest on such amounts from this date at the rate of six percent (6%) per annum, together with its costs.” In this connection the trial court found (1) that both Earl Delley and Ruby Brown, individually and as administratrix, claim title by, through and under a deed from The Brotherly and Sisterly Club of Christ, Inc., to W. W. Watley and Earl Delley dated February-, 1968, (2) that a part of the consideration for the conveyance was the assumption and agreement to pay by W. W. Watley and Earl Delley various indebtednesses owed by the Nursing Home at the time of the conveyance, including the debt owed to the Gas Company, (3) that the undisputed evidence showed that on the date of the conveyance there was an unpaid balance due on the indebtedness to the Gas Company for the air conditioning equipment in the amount of $3,645.76, and (4) an unpaid balance due the company upon an open account in the amount of $201.65. While the record fails to disclose the date of the deed or the date of delivery, it shows that it was finally acknowledged on March 13, 1968, and filed for record on April 3, 1968. The resolution authorizing the officers of the Nursing Home corporation to sell the land was copied in the deed verbatim and recites, in part, as follows: “The sale shall be for a consideration of $100.00 cash and the assumption by the purchaser of all liability and responsibility to pay the following, and only the following, debts now owing by the corporation: (1) Arkansas Louisiana Gas Corporation * * Nowhere in the deed is there an express reservation of a vendor’s lien, nor does the deed contain an express reservation of superior title. Earl Delley and Ruby Brown, individually and as administratrix, attack the judgment in favor of the Gas Company. They contend that the trial court erred in finding that the Gas Company was entitled to a first lien on funds in the registry of the County Court of Harrison County on various grounds. We overrule their contentions with one qualification hereafter explained. The assumption by the grantees in a deed to pay a debt due and owing a third party constitutes a part of the purchase money. The well established rule is that where no express vendor’s lien is reserved in the deed, a vendor’s lien nevertheless arises by operation of law to secure the payment of the purchase money, and where the purchase money is not paid, the vendor has an implied equitable lien which may be established and foreclosed in a suit brought for this purpose. Briscoe v. Bronaugh, 1 Tex. 326 (1846); Zapata v. Torres, 464 S.W.2d 926 (Tex.Civ.App., Dallas, 1971, n. w. h.); 58 Tex.Jur.2d sec. 335, p. 575, et seq. It is well settled that where a part of the purchase money is the assumption of an indebtedness due to a third party, who has no claim on the land, the vendor’s lien arises in favor of such a third party to secure such indebtedness. Burton-Lingo Co. v. Standard, 217 S.W. 446 (Tex.Civ.App., Fort Worth, 1919, n. w. h.); Gonzalez v. Zachry, 84 S.W.2d 855 (Tex.Civ.App., San Antonio, 1935, writ ref.); Etter v. Tuck, 101 S.W.2d 843 (Tex.Civ.App., Dallas, 1937, n. w. h.). The stipulation in the deed obligating Wat-ley and Delley to assume the indebtedness due the Gas Company is contractual in nature and any party interested in such a contract has a right to enforce it. When Watley and Delley accepted the deed containing the stipulation of the assumption of the indebtedness to the Gas Company, it constituted an unconditional contractual undertaking on them and their successors in title to pay the same. This being true, an equitable first lien was created in favor of the Gas Company and Delley and Brown are in no position to question the validity of the same. Next, they contend that even though a valid lien existed, the trial court erred in ordering the entire amount of the debt to be paid out of the funds paid into the registry of the County Court rather than ordering a foreclosure against the land. In this connection they argue that the lien extended only to the remainder of the land and not to the funds. We do not agree. In 27 Am.Jur.2d, sec. 257, it is said: “There appears to be no doubt that where mortgaged property is taken by eminent domain, or damaged to such an extent that the security of the mortgage is impaired, the mortgagee’s rights against the land follow the award, and he may have the mortgage debt satisfied out of that fund in advance of other creditors of the mortgagor, if he takes the burden upon himself of enforcing his rights in that regard. * * * “In any event, the greatly prevailing view is that where mortgaged land is taken or damaged for public use, the mortgagee is entitled either to the entire award or to so much thereof as is necessary to compensate him for his interest or damage. * * * ” While the lien involved here is an equitable lien, as distinguished from an express lien usually found in mortgages, we see no reason why the foregoing rule should not be applicable. State v. Moody Estate, 156 F.2d 698 (5th Cir. 1946). The Gas Company sought the court’s aid upon equitable principles in the collection of a debt contractually promised by appellants and those under whom they claim. Since the debt was a contractual obligation, we think the Gas Company is clearly entitled to have the debt satisfied out of the funds to the exclusion of Delley and Brown, especially since all other claimants were disposed of by the judgment entered by the court below. Moreover, we think the trial court was authorized, upon equitable principles, to order the entire debt paid out of the funds without resorting to a foreclosure on the remaining land. City of Chicago v. Salinger, 384 Ill. 515, 52 N.E.2d 184, 154 A.L.R. 1104. The payment of the debt out of the funds would, of course, have the effect of extinguishing the company’s equitable lien on the remaining land. Delley and Brown further contend that the trial court erred in refusing to hold that the lien was barred by the two and four year statute of limitations, Articles 5526 and 5527, Vernon’s Ann.Tex.St. The points are without merit and are therefore overruled. They argue first that the debt was barred by the two and four year statutes at the time the grantees accepted the deed and assumed payment of the debt. Therefore they contend that the no lien was created by the deed. In connection with the two year statute, they take the position that since the grantees did not sign the deed, the contract was oral and therefore was barred because the undisputed evidence shows the Gas Company did not commence suit within two years. As we view the record, the two year statute of limitations is not controlling in that the contract involved here was a written contract and is therefore controlled by the four year statute of limitations. While the grantees did not sign the deed, the deed in question was a written contract binding alike upon the grantors and grantees, whether signed by the grantees or not. Its acceptance by the grantees imposed upon them and their successors in title an obligation to pay the consideration recited therein. It has been expressly held that a written contract of this type need not in terms contain a promise to pay nor a recital of such promise. Orbeck v. Alfei, 276 S.W. 947 (Tex.Civ.App., Waco, 1925); 37 Tex.Jur.2d sec. 38, p. 144. Since the contract made the basis of the suit was not oral, but written, the two year statute is not applicable. Next, it is contended that even though the deed amounts to a contract in writing, the suit was barred by the four year statute of limitations since the record shows without dispute that no action was commenced by the Gas Company within four years after the grantees accepted the deed assuming the obligation. Article 5527 provides that all actions for debt, when the indebtedness is evidenced by or founded upon a contract in writing, must be commenced within four years after the cause of action accrues. Where a vendor executes a conveyance and retains no express vendor’s lien or superior lien in the deed or otherwise, an implied vendor’s lien on the land is lost when the debt is barred by the statute of limitations. Johnson v. Dyer, 19 Tex.Civ.App. 602, 47 S.W. 727 (1898, err. ref.); Zeigel v. Magee, 176 S.W. 631 (Tex.Civ.App., San Antonio, 1915, err. ref.); Laird v. Murray, 111 S.W. 780 (Tex.Civ.App., 1908, err. ref.). But where the grantees, as here, enter in a contract assuming an obligation maturing in installments thereby giving rise to an implied lien on the land, limitations does not begin running until the maturity of the last installment. Article 5520, V.A.T.S.; Uvalde Rock Asphalt Co. v. Cartledge, 154 S.W.2d 314 (Tex.Civ.App., Galveston, 1941, n. w. h.), citing cases. The record reveals that at the time appellants and those under whom they claim accepted the deed, the debt owing the Gas Company consisted of (1) an installment debt in the amount of $3,645.76, and (2) a debt upon an open account in the amount of $201.65. The installment debt upon the air conditioning equipment was evidenced by a note and security agreement executed on February 2, 1967, payable in 48 monthly installments of $87.24 each, commencing on March 31, 1967. Thus the last installment thereon did not mature until March 31, 1971. Consequently, the installment debt would not have been barred by the four year statute of limitations until March 31, 1975. The Gas Company set up its claim by its second amended original answer filed on November 30, 1972. By these pleadings the Gas Company sought affirmative relief upon its debt, asserted its equitable vendor’s lien, and prayed for the enforcement of its lien against the funds on deposit in the registry of the County Court. While the company did not specifically denominate its claim as a counterclaim or a cross action, we are of the opinion that such pleading had the effect of suspending the running of the statute of limitations. 37 Tex.Jur.2d, Limitations of Actions, secs. 19 and 96. It therefore follows that the installment debt of $3,645.76 was not barred by the four year statute of limitations. With regard to the debt due and owing the Gas Company for gas furnished upon the open account, the record shows that the sum of $201.65 was due and owing at the time the deed was executed in February, 1968. Since the company did not commence suit until it filed its pleading dated November 30, 1972, this part of the debt is obviously barred by the four year statute of limitations. Finally, it is contended that the debt and lien asserted by the Gas Company is void because the company failed to comply with the provisions of the Texas Business and Commerce Code. The point is without merit and is overruled. Since Del-ley and Brown and those under whom they claim participated in the creation of the equitable lien, they were charged with knowledge of the prior lien. Not being innocent purchasers, the code affords them no protection. In view of our ruling that the open account of $201.65 is barred by limitations, it becomes necessary that we reverse the judgment and remand the cause to the trial court with the instruction that the judgment be reformed so as to limit the Gas Company’s recovery to the amount due under the installment contract, plus interest and attorney’s fees stipulated therein. THE TITLE OF RUBY BROWN, AD-MINISTRATRIX The judgment awarded Ruby Watley Brown, individually and as administratrix of the Estate of Minnie Elizabeth Watley, jointly, seventy percent (70%) of the title and possession of the surface estate of the land and seventy percent (70%) of the funds in the Registry of the County Court, after the payment of the amount recovered by Arkansas Louisiana Gas Company. At the time the present suit was filed, Ruby Watley Brown had not been appointed administratrix of her mother’s estate. The first indication that she intended to apply for administration came several days prior to trial on March 28, 1973, when Ruby Watley Brown, individually, filed a pleading alleging that she had made application for appointment as administratrix. The pleading purports to have been filed on behalf of the administratrix and alleges that as administratrix she sought a recovery of the undivided community interest in the two acre tract of land owned by her mother at the time of her death. The pleading filed in behalf of the administra-trix requested that the trustee’s deed conveying her mother’s interest in the property to Earl Delley be set aside. Appellant Delley contends that since Ruby Watley Brown failed to qualify as administratrix until several days after the trial of the present suit, the trial court erred in permitting her to intervene after the close of the evidence. We do not agree. The record reveals that the case was tried and completed on April 4, 1973. After all parties had rested, the court took the matter under advisement. On April 10, 1973, Ruby Brown was finally appointed administratrix of her mother’s estate. On the same day she filed a motion requesting the trial court to allow her to offer certified copies of her appointment and qualification as administratrix. While the motion was denominated a motion to offer additional evidence, the motion shows that what she was attempting to do was to intervene in the case. The motion stated that she desired to prove her appointment as adminstratrix in order to support the pleading filed on her behalf on March 28, 1973, wherein she sought title to the undivided community interest of Minnie Elizabeth Watley at the time of her death. Certified copies of her appointment, as well as her qualification as administratrix, were attached to the motion. On April 23, 1973, the trial court granted the motion and admitted into evidence certified copies of the instruments showing Ruby Brown’s appointment and qualification as administratrix. On May 9, 1973, the trial court rendered judgment. Rule 270, Texas Rules of Civil Procedure, provides in part as follows: “At any time the court may permit additional evidence to be offered where it clearly appears to be necessary to the due administration of justice. * * * ” Rule 60, Texas Rules of Civil Procedure, provides as follows: “Any party may intervene, subject to being stricken out by the court for sufficient cause on the motion of the opposite party; and such intervenor shall, in accordance with Rule 72, notify the opposite party or his attorney of the filing of such pleadings within five days from the filing of same.” Delley does not contend he was not given notice of the motion, nor does he contend there was any irregularity in the appointment of the administratrix. At no time did he move to have the intervention stricken. His sole contention is that the court erred in failing to set the motion for hearing and affording him an opportunity to appear and contest the motion. Generally, intervention is proper at any time before final decision on the merits. McDonald, Texas Civil Practice, Vol. 1, sec. 3.48. The question of whether the administratrix should have been permitted to intervene and offer evidence of her appointment constituted a matter within the discretion of the trial judge. Wofford v. Miller, 381 S.W.2d 640 (Tex.Civ.App., Corpus Christi, 1964, n.r.e.); Jones v. English, 235 S.W.2d 238 (Tex.Civ.App., San Antonio, 1950, err. dism.). Since Delley failed to move to strike the intervention, we think he waived his right to complain. Saulsbury v. Clay, 25 S.W.2d 200 (Tex.Civ.App., Amarillo, 1930, n.w.h.). At any rate, we are of the opinion that no abuse of discretion was shown. This brings us to the question of whether the trial court erred in awarding the administratrix an undivided interest in the title to the land and funds in question. It is undisputed that the administratrix was appointed within the four-year period allowed by the statute after the death of Minnie Elizabeth Watley. Upon being appointed she was authorized to take charge of the estate and protect the same. She therefore became a proper party to the pending litigation in that she had an interest in the judgment to be rendered therein. Her pleading in intervention shows she intended to adopt the pleading filed on March 28, 1973. Thus, we think her pleadings are sufficient to show that she sought to set aside the trustee’s deed to Delley dated August 4, 1970, and sought to recover the one-half community interest owned by Minnie Elizabeth Watley at the time of her death on July 14, 1970. We agree with the trial court’s ruling that Ruby Watley Brown, administratrix, was entitled to recover an interest in the land and funds. It is now settled that where the mortgagee, as here, elects to have a forced sale made under the power conferred by the mortgage after the death of the mortgagor, the sale will be cancelled if within four years thereof an administration is opened and the administrator seeks cancellation. Pearce v. Stokes, 155 Tex. 564, 291 S.W.2d 309 (1956). This is the situation presented here. Consequently, the administratrix is entitled to recover the interest owned by Minnie Elizabeth Watley at the time of her death. While we agree with the trial court’s ruling that the administratrix was entitled to recover, we think the trial court erred in awarding the administratrix an undivided interest jointly with Ruby Wat-ley Brown, individually. We think the trial court should have entered judgment awarding her the specific interest owned by Minnie Elizabeth Watley at the time of her death. We therefore reverse and remand this portion of the judgment with instructions that the judgment be reformed so as to award the administratrix a one-half interest in and to seventy percent (70%) of the land and the funds in question, after payment of the judgment in favor of the Gas Company. THE TITLE OF RUBY WATLEY BROWN, INDIVIDUALLY As stated, the judgment awarded Ruby Watley Brown, individually, an undivided interest in seventy percent (70%) of the land and funds jointly with the admin-istratrix of the Estate of Minnie Elizabeth Watley, deceased. The judgment in favor of Ruby Brown, individually, is based on the theory that upon the death of her father, W. W. Watley, she inherited his undivided one-half community interest in and to seventy percent (70%) of the land and that the subsequent trustee’s deed to Delley was not effective to divest her of title in that the sale was invalid because the consideration paid by Delley was grossly inadequate. Appellant Earl Delley urges that the trial court erred in setting aside the trustee’s deed based solely on the finding that the consideration was grossly inadequate. We sustain the contention. A trustee’s sale will not be disturbed or set aside because the consideration was inadequate unless there are allegations and proof of irregularity, though slight, which irregularity caused or contributed to cause the property to be sold for a grossly inadequate price. Thornton v. Goodman, 216 S.W. 147 (Tex.Com.App., 1919); Sparkman v. McWhirter, 263 S.W. 2d 832 (Tex.Civ.App., Dallas, 1953, writ ref.); Tarrant Savings Association v. Lucky Homes, Inc., 390 S.W.2d 473 (Tex.Sup.1965); Smith v. Olney Federal Savings and Loan, 415 S.W.2d 515 (Tex.Civ.App., Eastland, 1967, n.w.h.). There is neither pleadings nor proof showing that the trustee’s sale was unfairly held or that there was any irregularity which caused or contributed to cause the property to bring a low price. Delley therefore acquired title by virtue of the trustee’s deed to the undivided one-half community interest in seventy percent (70%) of the land inherited by Ruby Brown from her father, W. W. Watley, subject to administration being taken out on his estate within four years. It is undisputed that no administration has ever been opened on his estate. In these circumstances, the authorities hold that when a trustee’s sale is made within four years after the death of the mortgagor, as here, and no administration is thereafter opened on the estate before the expiration of the four-year period allowed by the statute, title to the purchaser becomes absolute. Wiener v. Zwieb, 105 Tex. 262, 141 S.W. 771, 147 S.W. 867; Pearce v. Stokes, supra. Since no administration having been taken out on the Estate of W. W. Watley, Delley’s title became absolute. Consequently, we are of the opinion that the trial court erred in awarding Ruby Brown, individually, the undivided one-half community interest emanating through W. W. Watley. Accordingly, we reverse and remand this portion of the judgment with instructions to the trial court to enter a “take nothing” judgment against Ruby Watley Brown, individually. THE TITLE OF EARL DELLEY The judgment awarded Earl Del-ley title to thirty percent (30%) of the surface estate in the land and thirty percent (30%) of the funds on deposit in the registry of the County Court. The interest awarded Delley here is the thirty percent interest which he acquired in the deed from the Nursing Home to W. W. Watley and Earl Delley. Ruby Brown contends that the trial court erred in granting Delley title to this thirty percent interest because she contends that the undisputed evidence shows that Delley agreed to pay her father, W. W. Watley, $6,000.00 for this interest, which he failed to pay. Therefore, she argues that since there was a failure of consideration, title to this thirty percent interest remained in her father and mother. No authority is cited in support of this proposition. But irrespective of whether the legal proposition is sound or not, we have concluded the contention cannot be sustained because the record is devoid of any evidence to support a recovery on such theory. The record shows that all testimony offered by Ruby Brown with regard to the alleged agreement between her father and Delley was excluded by the trial court on the ground that it violated the Dead Man’s Statute. Article 3716, V.A.T.S. Delley denied making such agreement. He testified the thirty percent (30%) interest conveyed to him by the deed was in payment for work he performed for the Nursing Home prior to the execution of the deed. While he admitted that he had some negotiations with Watley regarding the purchasing of a thirty percent interest, he testified that these negotiations related to the purchase of an additional thirty percent interest and were terminated. As we view it, the foregoing testimony is factually and legally insufficient to raise any issue upon the alleged agreement. We therefore agree with the trial court’s ruling denying Ruby Watley Brown, individually and as administratrix, a recovery for the thirty percent interest conveyed Delley by the deed. We hold that Delley acquired title to an undivided thirty percent interest in the land and funds on deposit by virtue of the deed executed by the Nursing Home, and further hold that Earl Delley acquired one-half interest in and to seventy percent (70%) of the title to the land and funds on deposit by virtue of the trustee’s deed for the reason stated hereabove. The trial court is hereby instructed to enter judgment in his favor accordingly after payment of the judgment in favor of the Gas Company. Other portions of the judgment relating to costs and the assessment of guardian ad litem fees are not disturbed. It is ordinarily the duty of the appellate court to render the judgment which the trial court should have entered. However, in view of the fact that we must reverse and remand the case to the trial court for it to reform its judgment by re-computing the interest and attorney’s fees upon the judgment awarded Arkansas Louisiana Gas Company, we deem it proper to reverse and remand the case as a whole so that a new judgment may be entered. Accordingly, the judgment is reversed and the cause is remanded to the trial court with instructions to enter judgment in accordance with this opinion.

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2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Carmen R. MITCHIM, Appellant, v. Charles F. MITCHIM, Appellee. No. 12101. Court of Civil Appeals of Texas, Austin. April 3, 1974. Rehearing Denied May 8, 1974. Gerard P. Nugent, Phillips & Norris, Austin, for appellant. Greg Gossett, Logan, Lear, Massey & Gossett, San Angelo, for appellee. SHANNON, Justice. Appellee, Charles F. Mitchim, filed suit in the district court of Tom Green County seeking a declaratory judgment that the part of the divorce judgment of a superior court of Arizona awarding alimony, attorney’s fees, and costs to appellant, Carmen R. Mitchim, was void. As grounds for that relief, appellee claimed that the Arizona judgment was void because that court lacked in personam jurisdiction. Upon trial to the district court of Tom Green County, judgment was entered declaring the Arizona judgment void and unenforceable in Texas insofar as it awarded appellant alimony, attorney’s fees and costs. Appellant and appellee were married in 1949 and were living in California when appellee retired from the Army in 1961 after serving for more than twenty-eight years. In 1966, they moved to Arizona and remained there several years. In the autumn of 1970, the Mitchims went to Ozona, Texas. They went to Ozona because appellee wanted to visit that community with a possible view of moving there. While in Ozona, they were shown several houses by several real estate sales persons. They then returned to Arizona. On January 8, 1971, appellee moved to Ozona and there began his practice of optometry. In January of 1971, the parties’ Arizona home was placed on the market. In April of that year appellant went to Ozona to visit appellee. After a few days she returned to Arizona and there on June 28, 1971, she filed the suit for divorce against appellee. Pursuant to the Arizona “Long-Arm” statute, appellee was served with a copy of the divorce petition in Ozona on July 6, 1971. Appellee made no appearance in that proceeding and a judgment of divorce was entered on March 7, 1972, awarding appellant, among other things, a divorce, costs, attorney’s fees and $950.00 each month as alimony. In her first amended answer to appel-lee’s petition appellant filed a cross-action asking the court to enforce the Arizona judgment, to require appellee to file a sworn inventory and appraisal, and in the alternative, to partition appellee’s military retirement benefits. The district court of Tom Green County entered judgment declaring that the Arizona court which entered the divorce judgment did not have jurisdiction to award a personal judgment enforceable in Texas against appellee for alimony, for costs of court, or for attorney’s fees and that such judgment for those purposes was void. With respect to appellant’s claim in her cross-action to appellee’s military retirement benefits, the court declared that appellant have ¾14⅛ of said benefits and that appellee have the remaining lu/iuth thereof. Upon request, the court filed findings of fact and conclusions of law, and, among other things, found that appellee had resided continuously in Texas since January of 1971, and that at no time after January 9, 1971, did appellee enter the territorial boundaries of Arizona. Appellee never agreed to subject himself to the jurisdiction of the Arizona courts, and that appel-lee, after January 9, 1971, did not have any legally significant contacts with the State of Arizona. The court concluded that the part of the Arizona divorce judgment providing for the payment of alimony, costs, and attorney’s fees, was void for want of jurisdiction over the person of appellee or his property outside the State of Arizona. The court determined further that the service of process upon appellee outside of Arizona was insufficient to confer in personam jurisdiction. The full faith and credit clause, U.S.Const. Art. IV, § 1, requires the courts of each state to accord the judgment of a sister state the same effect as is given that judgment in the state of its origin. Leflar, American Conflicts Law § 76 (Rev.1968). Because a judgment entered without jurisdiction is void where rendered, the full faith and credit clause does not require that a sister state recognize that judgment. In a suit on an extrastate judgment, the defense may be that the court which entered the judgment lacked jurisdiction, and that defense is made good by proof that the facts relied upon as a basis for jurisdiction in the prior proceeding were inadequate to satisfy the requirements of due process of law. Due process is violated if the court enters an in personam judgment without jurisdiction over the person against whom it is entered. Leflar, American Conflicts Law § 80 (Rev.1968). Unlike a divorce decree which purports only to affect the marital status of the parties, an in rem matter, an order to pay money as alimony, court costs, or attorney’s fees is an in personam judgment. To be valid, that judgment must be entered by a court having in personam jurisdiction over the defendant. See Goodrich, Divorce and Conflict of Laws, 2 Tex.L.Rev. I, 24 (1923). Traditionally, there have been several grounds for personal jurisdiction over a defendant, such as presence, domicile, consent or appearance. Stumberg, Principles of Conflicts of Law 326 (3rd Ed. 1963). In the case at bar appellant claims that in personam jurisdiction may be acquired over a non-resident defendant in a divorce proceeding by extraterritorial personal service of process if (1) a statute of the support ordering state has authorized the acquisition of such jurisdiction in that manner, and (2) there exist sufficient contacts between the defendant and the forum relevant to the cause of action to satisfy “traditional notions of fair play and substantial justice.” Our consideration of the validity of the Arizona judgment is controlled by the law of Arizona. O’Brien v. Lanpar Company, 399 S.W.2d 340 (Tex.1966). In an effort to determine that law, we will first examine the Arizona “Long-Arm” provision, Ariz.R.Civ.P. 4(e)(2), 16 A.R.S., to determine whether or not that rule applies to service of non-resident persons in divorce proceedings. The pertinent part of that rule provides as follows: “4(e)(2) Summons; personal service out of state. When the defendant is a resident of this state, or is a corporation doing business in this state, or is a person, partnership, corporation or unincorporated association subject to suit in a common name which has caused an event to occur in this state out of which the claim which is the subject of the complaint arose, service may be made as herein provided, and when so made shall be of the same effect as personal service within the state. . . . ” The critical language, for our purposes, is “When the defendant ... is a person . . . which has caused an event to occur in this state out of which the claim which is the subject of the complaint arose, service may be made The rule makes no mention of its availability in a proceeding for divorce, or in a divorce suit wherein alimony may be awarded to the plaintiff. We have been unable to discover Arizona authority applying this language' to a non-resident defendant in a divorce case. In Backora v. Balkin, 14 Ariz.App. 569, 485 P.2d 292 (1971), the guardian ad litem, filed a paternity suit for an infant in the superior court of Maricopa County, Arizona, against the defendant, a resident of Illinois. The defendant was served in Illinois pursuant to Ariz.R.Civ.P. 4(e)(2), as the infant alleged that all of the events which gave rise to her existence took place in Arizona. The court of appeals said simply, “It is our opinion that the trial court properly assumed personal jurisdiction over the defendant.” Unlike the single event which creates a claim for paternity, the basis for divorce action usually stems from many events. But whether one or many, those events could well occur, in the given case, within the State of Arizona. We are of the opinion that the terms of Rule 4(e)(2) are sufficiently broad to authorize the service of a non-resident person in an Arizona divorce proceeding. By the terms of Rule 4(e)(2) it would be necessary to plead and show that the event or events forming the basis of the divorce occurred in Arizona. The record in the case at bar does not contain a copy of appellant’s divorce petition and, as a result, we do not know the basis for appellant’s divorce and, more importantly, we do not know where the event, or events, occurred which formed the basis for the default divorce judgment. Under these circumstances, we are unable to determine whether or not appellant could have availed herself of Rule 4(e)(2) to obtain valid service upon appellee. The second aspect of appellant’s contention that the Arizona court had in person-am jurisdiction over appellee is that due process was accorded appellee because of his “minimum contacts” with the State of Arizona. As authority, appellant relies upon Mizner v. Mizner, 84 Nev. 268, 439 P.2d 679 (1968). In Mizner the petitioner and his wife had maintained their matrimonial domicile for many years in California before they separated and petitioner moved to Nevada. The petitioner filed suit for divorce in Nevada, and within a month his wife filed suit for divorce in California on the grounds of cruelty. Personal service of process was had upon petitioner at his home in Nevada pursuant to a California statute authorizing extraterritorial personal service where the defendant was a resident of that state when the cause of action arose. The petitioner made no appearance, and the California court awarded the wife a divorce and a judgment for alimony. She then filed suit on the California judgment in Nevada where the trial court granted her motion for partial summary judgment on the issue of alimony on the ground that the California judgment was entitled to full faith and credit. The Supreme Court of Nevada affirmed the judgment. The majoriy of the Nevada court examined the California statute and found that it had been applied by the courts of California to cases of divorce and alimony. The majority of the Nevada court was of the further opinion that the minimum contacts theory concept of in personam jurisdiction was particularly suited to matrimonial support cases. Besides Mizner v. Mizner, supra, there are several other cases in which it is said that the concept of “minimum contacts” of the defendant with the state of the forum satisfies due process and affords a basis for in personam jurisdiction over a nonresident defendant in matrimonial support cases. We have found no Arizona authority in point. Appellant claims that the minimum contacts which enable Arizona to assert in personam jurisdiction over appellee are that before leaving Arizona he voted there, owned a home there, paid Arizona taxes, and held an Arizona driver’s license. After moving to Texas, appellee continued to own the family home in Arizona, make mortgage payments, send money to appellant, and pay dental bills for his daughter. The trial court found, as a matter of fact, that appellee did not have any legally significant contacts with the State of Arizona after January 9, 1971. Appellant does not specifically attack that finding. The United States Supreme Court has held that the “minimum contacts” theory, as a basis for in personam jurisdiction, satisfies due process in certain classes of business transactions and in tort. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091 (1927), McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). However, that court held in May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953), that in a child custody case personal service upon a non-resident defendant outside the bounds of the state whose court awarded the custody decree was insufficient to confer in personam jurisdiction, and that a sister state was not bound to accord full faith and credit to that decree. Though the issue in May v. Anderson, supra, was child custody, it seems that the case is controlling in all in personam matters arising out of the marriage relationship. We agree with the language of Justice Batjer in the dissenting opinion in Mizner v. Mizner, supra. “While the prerequisite of ‘minimum contact’ may be found in domestic relations cases to bridge the gap of extraterritorial service of process, the resulting judgments and decrees are not in the same category as those in cases arising out of contract, tort, or the other divisions of the legal field. The ‘minimum contact’ doctrine cannot be properly applied to confer in personam jurisdiction to the domestic relations field. The minimum contact theory of in personam jurisdiction cannot be reasonably applied to an alimony judgment because that type of judgment contains an element of inherent uncertainty. A change of circumstances in the status of either party, subsequent to the entry of judgment is, within the court’s discretion, grounds for modification.” In summary, we are of the opinion that the terms of Ariz.R.Civ.P. 4(e)(2) are broad enough to authorize the service of a non-resident person in an Arizona divorce proceeding. We have not been shown a basis for a determination whether or not appellant could have availed herself of Rule 4(e) (2) to obtain valid service upon appellee. And finally, we are of the opinion that May v. Anderson, supra, is still controlling and that the “minimum contacts” theory, as a basis for in personam jurisdiction, does not satisfy due process in matters arising out of the marriage relationship. With respect to appellant’s second point of error, the Arizona judgment did not divide the military retirement benefits which appellee accumulated during his years in the Army. Appellant contends that she is entitled to one-half of the retirement benefits because she and appellee were living as husband and wife in California, a community property state, at the time the retirement vested. We do not agree. Only that part of the retirement benefits which accrued during the marriage of appellant and appellee while they resided in community property states is subject to division as community property. Gaulding v. Gaulding, 503 S.W.2d 617 (Tex.Civ.App.1973, no writ), see Parson v. United States, 460 F.2d 228, 233 (5th Cir., 1972). The judgment is affirmed. ON MOTION FOR REHEARING The Arizona judgment did not divide the military retirement benefits which appellee accumulated during his years in the Army. Appellee was in the Army twenty-eight and one-half years, of which one and one-half years were served in community property states. Appellant insists that she is entitled to one-half of the retirement benefits because she and appellee were living as husband and wife in California, a community property state, at the time the retirement program vested. Appellee contends, on the other hand, that only the part of the retirement benefits which accrued during the marriage of appellant and appellee while they resided in community property states is subject to division as community property. The “inception-of-title” rule is applied to determine the existence of a community-property interest in retirement benefits. Busby v. Busby, 457 S.W.2d 551 (Tex.1970), Davis v. Davis, 495 S.W.2d 607 (Tex.Civ.App.1973, writ dism’d). The logic of the “inception-of-title” rule, however, has not been pushed to a rigorous conclusion in determining the extent of the community interest. Dessommes v. Dessommes, 505 S.W.2d 673 (Tex.Civ.App.1973, application for writ pending). A number of the cases hold that the separate or community character of retirement benefits is to be determined by the status of the spouse at the time the benefit was earned. For example, if some of the benefits were earned while the employee spouse was unmarried, then that part is apportioned to him as his separate property. Webster v. Webster, 442 S.W.2d 786 (Tex.Civ.App.1969, no writ), Mora v. Mora, 429 S.W.2d 660 (Tex.Civ.App.1968, writ dism’d), Kirkham v. Kirkham, 335 S.W.2d 393 (Tex.Civ.App.1960, no writ), see Dessommes v. Dessommes, supra. Likewise, benefits earned after marriage, but in a common law state, should be considered separate property of the employee spouse. Gaulding v. Gaulding, 503 S.W.2d 617 (Tex.Civ.App.1973, no writ), University of Texas: Hughes, Community-Property Aspects of Profit-Sharing and Pension Plans in Texas—Recent Developments and Proposed Guidelines for the Future, 44 Texas L.Rev. 860, 871 (1961), University of Texas, Dutton, The Wife’s Community Interest in Her Husband’s Qualified Pension or Profit-Sharing Plan, 50 Texas L.Rev. 334, 340 (1972), see People v. Bejarano, 358 P.2d 866 (Colo.1961). The motion for rehearing is overruled. PHILLIPS, Chief Justice (dissenting). Appellant made a prima facie case by introducing a copy of the Arizona judgment at trial. Hamilton v. Newberry, 412 S.W.2d 801 (Tex.Civ.App.1967, writ ref. n.r.e.). There is a presumption that this judgment was valid, and this presumption was not rebutted. Roberts v. Hodges, 401 S.W.2d 332 (Tex.Civ.App.1966, writ ref. n.r.e.). Therefore, I would hold that appellant is entitled to have her judgment enforced under the full faith and credit clause, Section 1, Article IV of the Constitution of the United States. I would also hold the “minimum contacts” theory applicable for in personam jurisdiction in matters arising out of the marriage relationship. Mizner v. Mizner, 84 Nev. 268, 439 P.2d 679 (1968) cert. denied, 393 U.S. 847, 89 S.Ct. 130, 21 L.Ed.2d 1117 (1968); Soule v. Soule, 193 Cal.App. 2d 443, 14 Cal.Rptr. 417 (1961), cert. denied, 368 U.S. 985, 82 S.Ct. 600, 7 L.Ed.2d 523 (1962); Scott v. Hall, 203 Kan. 331, 454 P.2d 449 (1969); Dillon v. Dillon, 46 Wis.2d 659, 176 N.W.2d 362 (1970); Hines v. Clendenning, 465 P.2d 460 (Okl.1970); Stucky v. Stucky, 186 Neb. 636, 185 N.W.2d 656 (1971). There is little doubt under the record before us that the Arizona court had the required jurisdiction under the “minimum contacts” doctrine. In any event, I am convinced that the majority are in error in holding that only that part of the military retirement benefits which accrued while the parties were living as man and wife in community property states is subject to division as community property. These benefits vested when the parties retired in á community property state. The appellant then became entitled to her portion of that part of the interest in the retirement plan which was earned while the parties were man and wife. Mora v. Mora, 429 S.W.2d 660 (Tex.Civ.App.1968, writ dism’d); Kirkham v. Kirkham, 335 S.W.2d 393 (Tex.Civ.App.1960, no writ); Wilkerson v. Commissioner of Internal Revenue, 44 T.C. 718 (1965), aff’d 368 F.2d 552 (9th Cir. 1966); Busby v. Busby, 439 S.W.2d 687 (Tex.Civ.App.1969), aff’d 457 S.W.2d 551 (Tex.1970). I would grant appellant’s motion for rehearing, reverse the judgment of the trial court and render judgment enforcing the Arizona decree and judgment for arrears in alimony. Should I err as to the enforceability of the Arizona judgment, I would render judgment awarding appellant one-half interest in that part of appellee’s military retirement which was earned while the parties were man and wife. . Soule v. Soule, 193 Cal.App.2d 443, 14 Cal.Rptr. 417 (1961), Dillon v. Dillon, 46 Wis.2d 659, 176 N.W.2d 362 (1970), Hines v. Clendenning, 465 P.2d 460 (Okl.Sup.1970), Stucky v. Stucky, 186 Neb. 636, 185 N.W.2d 656 (1971). . In the trial of the cause and on appeal, the parties have regarded the point as one to be determined by Texas law. Moreover, in the absence of judicial knowledge of the applicable Arizona law, the laws of Texas govern. Texas Rules of Civil Procedure, rule 184a.

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J. R. MORROW et al., d/b/a Wig-Wam of Texas, Appellants, v. The STATE of Texas et al., Appellees. No. 12104. Court of Civil Appeals of Texas, Austin. May 8, 1974. William Andress, Jr., Andress, Wood-gate & Lodewick, Dallas, for appellants. John L. Hill, Atty. Gen., Michael E. Stork, Asst. Atty. Gen., Austin, for appel-lees. O’QUINN, Justice. The Texas Employment Commission, acting through thp State and its Attorney General, brought this suit in district court of Travis County against J. R. Morrow, Joe C. Morrow, Leon Parton, and Peggy W. Parton, partners, doing business in Dallas County as Wig-Wam of Texas, for the collecton of unemployment taxes and penalties, for the years 1969 through 1972, in the amount of $9,912.96. Appellants, as defendants below, filed their plea of privilege to be sued in Dallas County and expressly denied that in the years 1969 through 1970 they were employers as the term is defined in Article 5221b-17(f), Vernon’s Anno.Civ.Sts. The Commission filed its controverting affidavit alleging that suit was brought in Travis County under exception 30 of Article 1995, V.A.C.S., by authority of V.A.T.S. Tax.Gen. Articles 1.04(1), 1.04(2), and Art. 5221b-12(b) expressly prescribing that venue and jurisdiction for suits to collect taxes shall be in Travis County. After a hearing the trial court overruled defendants’ plea of privilege, and defendants have appealed. We will affirm the trial court’s judgment. Appellants contend on appeal that because the Commission did not prove at the hearing that appellants were employers within the meaning of the unemployment compensation statutes, venue could not be maintained in Travis County, and the trial court should have ordered the cause removed to Dallas County. The contention of appellants, in their plea of privilege, that they were not employers in the four years claimed by the Commission, constitutes a defense to the merits of the suit and is without bearing on the issue of venue. Under provisions of Article 1.04 all suits to collect delinquent state taxes and penalties, other than ad valorem taxes on property, must be brought by the attorney general, and “venue and jurisdiction of all [such] suits is hereby conferred upon the courts of Travis County.” Employer defaults in payment of contributions and penalties “ . . . shall be collected by civil action in a District Court in Travis County, Texas . . . ” as prescribed by Article 5221b — 12(b). We consider it settled that in instances where the Legislature has expressly prescribed that suits by the State shall be brought in Travis County, venue is determinable solely from the allegations of the petition filed by the State. Venue of any such suit is fixed by the statute and is not dependent upon proof of any extraneous fact. Harrington v. State, 363 S.W.2d 321 (Tex.Civ.App. Austin 1962, writ ref. n. r. e.); Oil and Products of Oil in Certain Pits in Gregg County v. State, 118 S.W.2d 618 (Tex.Civ.App. Austin 1938, no writ); Heard v. State, 149 S.W.2d 237 (Tex.Civ.App. Beaumont 1941, no writ); Yates v. State, 3 S.W.2d 114 (Tex.Civ.App. Austin 1928, no writ). See Gambill v. Town of Ponder, 494 S.W.2d 808, 811 (Tex.Sup.1973) for comment on holding of this Court in Harrington v. State, supra. In a collateral phase of this controversy, the Dallas Court of Civil Appeals in 1973 held that venue did not lie in Dallas County but in Travis County in matters dealing with liability for taxes. See Morrow v. Texas Employment Commission, 497 S.W.2d 635 (Tex.Civ.App. Dallas 1973, writ dsmd.) in which the court agreed with the holding in Gulf Coast Business Forms, Inc. v. Texas Employment Commission, 493 S.W.2d 260 (Tex.Civ.App. Beaumont 1973, writ ref. n. r. e. in per curiam opinion, Tex., 498 S.W.2d 154). Appellants rely on the holding of this Court in Shaw v. State, 345 S.W.2d 938 (Tex.Civ.App. Austin 1961, writ dsmd.) for the proposition that in the present case the Commission had the burden in the hearing on the plea of privilege to show that appellants were employers within the meaning of the statutes. In Shaw the party filing a plea of privilege was the husband of one of the defendants who had had her disabilities of coverture removed and was in fact an employer. This Court held that the husband was not a necessary party by reason of the wife having been emancipated, with the resulting right to sue and be sued in her own name. In Shaw this Court said, speaking through the same justice who wrote the opinion in Harrington, “It . . . clearly appears that appellant [the husband] was sought to be held, not as an employer, but as the husband of an employer. The suit, therefore, as to him, is not within the statutes . . .” (345 S.W.2d 939, col. 2) The holding in Shaw is not in point under the facts of the present case. The judgment of the trial court overruling appellants’ plea of privilege is affirmed.

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COMMERCIAL STANDARD INSURANCE COMPANY, Appellant, v. Shelton FONDREN, Appellee. No. 7558. Court of Civil Appeals of Texas, Beaumont. May 9, 1974. Rehearing Denied May 30, 1974. James E. Faulkner, Coldsprings, for appellant. Peter J. LaValle, Texas City, J. Ritchie Field, Conroe, for appellee. STEPHENSON, Justice. This is an action to recover upon a title insurance policy issued by defendant, Commercial Standard Insurance Company, to plaintiff, Shelton Fondren. Trial was by jury, and judgment was rendered for plaintiff upon the verdict. The parties will be referred to here as they were in the trial court. Plaintiff purchased 50.2 acre's of land in San Jacinto County in 1967. Defendant issued a title insurance policy in the amount of $6,000. Later a trespass to try title suit was filed against plaintiff to recover title to the land covered by defendant’s policy. Defendant undertook the defense of such suit. Following a trial and an appeal, an agreed dismissal was entered, and the tract of land was divided with plaintiff losing title to one-half of the property. In the judgment entered in the present case, plaintiff recovered $3,000, which is one-half of the amount of the policy. Defendant first complains of the failure of the trial court to grant its plea of privilege filed in this case. Their point is overruled. Plaintiff’s original petition was July 12, 1972. Defendant filed an answer and cross-action August 4, 1972, and an amended answer and cross-action September 22, 1972. Defendant then filed its plea of privilege March 20, 1973. Defendant waived its plea of privilege by first filing its answer and cross-action. Ryman Well Service, Inc. v. B. D. Holt Company, 478 S.W.2d 801 (Tex.Civ.App., Austin, 1972, no writ); Texas Securities Corporation v. Peters, 463 S.W.2d 263 (Tex.Civ.App., Ft. Worth, 1971, no writ); Dyer v. Metallic Building Company, 405 S.W.2d 119 (Tex.Civ.App., Eastland, 1966, no writ). Defendant complains of the action of the trial court in refusing to submit to the jury a special issue asking the market value of the land at the time of its purchase by plaintiff in 1967. This point of error is overruled. The policy in question contains these provisions: “Said Company shall not be liable in a greater amount than actual monetary loss of assured, and in no event shall said Company be liable for more than SIX THOUSAND AND NO/100 Dollars. . . . [A]nd if such adverse interest, claim, or right so established shall be for less than the whole of the property, then the liability of the Company shall be only such part of the whole liability limited above as shall bear the same ratio to the whole liability that the adverse interest, claim, or right established may bear to the whole property, such ratio to be based on respective values determinable as of the date of this policy.” The undisputed evidence shows the title to an undivided one-half interest in the land failed, and not an identifiable segment of the property. The Supreme Court of Texas has held that the policy provision for proportionate payment is not applicable under the circumstances of the present case. Shaver v. National Title & Abstract Co., 361 S.W.2d 867 (Tex.1962). The undisputed evidence also shows plaintiff paid $6,000 for the entire tract at the outset, and $4,000 for %ths of the interest which failed. We are told by the attorneys in their briefs, that the jury found $3,000 would fairly and reasonably compensate plaintiff for his loss. Defendant’s attorney testified by bill of exception that the value of the land was between $275 to $325 per acre at the time plaintiff originally purchased the land. Regardless of the manner of calculating plaintiff’s actual monetary loss, defendant has demonstrated no harm. There is no evidence in this record which would have supported a jury finding of less than $6,000 as the market value of the entire tract of land at the time of its purchase by plaintiff in 1967. Defendant’s next series of points of error relate to fraud. Defendant’s pleadings are to the effect that plaintiff made certain representations to defendant’s agent who wrote the title policy in issue. It is alleged that such representations were false and were relied upon by such agent. It is contended here that the trial court erred in refusing to submit certain requested issues to the jury relating to the defense of fraud. The state of the record before us makes it impossible to pass upon these points. A copy of the charge of the court is not included in the transcript before us. The judgment entered by the trial court shows only the following: “. . . which answers to such special issues were as follows: 1. We do. 2. We do. 3. $3,000.00. 4. We do not. 5. Not answered. 6. Not answered.” In the judgment, the trial court then found the plaintiff entitled to judgment after considering the pleadings, evidence, and verdict of the jury. Defendant gives no indication in its brief as to what issues were submitted to the jury. In his brief, after discussing the matter of fraud, plaintiff makes this statement: “Appellant is bound by the findings of fact of the jury that Appellee did not make such representations.” Defendant has failed to prove error or harm under Rules of Civil Procedure, rule 434. Affirmed.

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Ex parte Robert W. FILEMYR, No. 12171. Court of Civil Appeals of Texas, Austin. May 8, 1974. Joel B. Mitchell, Austin, for appellant. Maxwell Bryant Stout, Austin, for ap-pellee. O’QUINN, Justice. This is an original habeas corpus proceeding in this Court in which Relator Robert W. Filemyr seeks his discharge from custody of the sheriff of Travis County. Upon presentation of relator’s application, this Court directed issuance of the writ and ordered release of relator upon hig posting the bond fixed by this Court. Relator was found guilty of contempt of court, after hearing held March 18, 1974, by the judge presiding in the 126th District Court of Travis County. The trial court’s order assessed penalty of “a fine of $500.-00 and confinement . . . until such time as he [relator] shall present some plan reasonably satisfactory to this [District] Court for the payment of . arrearage and in keeping furture [sic] payments current as provided in the original Divorce Decree in this cause.” The district court found relator “ . . . to be in arrears at least in the sum of $5200.00 and that he could and should have paid same, and that he is presently receiving a minimum of Military Retirement pay monthly in the sum of $793.-73.” The order fails to disclose the nature of the delinquency amounting to $5,200 or the relevancy of the relator’s military retirement. Inspection of the original judgment of divorce, entered April 3, 1972, in the same court, shows that Vivian H. Filemyr, as petitioner, was granted a divorce from R. W. Filemyr, who was respondent, and that community property of the parties was partitioned by the court. Petitioner was awarded as her separate property, among other awards, “A sum of money each month equal to thirty-six per cent (36%) of Respondent’s Air Force retirement, it being understood that this sum will be thirty-six per cent (36%) of the gross monthly sum, received by Respondent or credited to Respondent.” The divorce decree made no provision for division each month of the retirement payments as received, but did recite, “The Court finds that the Air Force will not presently sever this fund to the respective parties but in the event rules and regulations pertinent to this retirement .fund or the statute relevant thereto are later altered or changed to allow for a division the parties are ordered to take the necessary steps to accomplish this result.” It appears undisputed between the parties that no change has been made in regulations or statutes which at the time of divorce prevented the retirement fund from being severed to allow separate monthly payments. The parties are in agreement in this Court that relator, following the divorce, made two, possibly three, monthly payments to his former wife which represented her percentage of the military retirement payments received each month by relator. Payments ceased thereafter, and the parties agree that the $5,200 mentioned in the order of contempt is approximately the total payments not made since that time. The original judgment of divorce did not order relator to pay thirty-six percent of the military retirement installments received by him each month, either to his former wife or to the registry of the court. The decree contains no direction to effect division of the installments. The decree did provide, however, for payment each month of $250, as child support, “ . to the Domestic Relations Office, Registry of this Court, at the Travis County Courthouse in Austin, Texas,” until the minor child should reach eighteen years of age, and these payments are not involved in this proceeding. The Supreme Court of Texas in 1967 decided that for a person to be held in contempt for disobeying a court decree, the decree must, in clear, unambiguous and specific terms, spell out the details of compliance, “ . . .so that such person will readily know what duties or obligations are imposed upon him.” Ex parte Slavin, 412 S.W.2d 43, 44 (Tex.Sup.1967). In that case the Supreme Court likened that rule to the rule prevailing as to an injunctive decree, which “ . . . must be as definite clear and precise as possible and when practicable it should inform the defendant of the acts he is restrained from doing, without calling on him for inferences or conclusions about which persons might well differ and without leaving anything for further hearing.” (412 S.W.2d 44-45) The divorce decree in this case awarded the wife “A sum each month equal to thirty-six per cent” of relator’s “Air Force retirement, it being understood that this sum will be thirty-six per cent (36%) of the gross monthly sum, received by Respondent [relator] or credited to Respondent.” The decree also awarded to relator “Sixty-four per cent (64%) of his Air Force retirement, consistent with item 4. above,” being the item awarding to the wife thirty-six percent of the retirement fund. Except for the direction in the decree that “the parties are ordered to take necessary steps” to make severance of the retirement “in event rules and regulations . or the statute relevant thereto are later . . . changed to allow” division of the retirement fund, no order was made directing the parties to divide the payments each month. Presumably on his own initiative, relator remitted part of the retirement money to the wife each month for a short period following entry of the divorce decree. There was no order of the court instructing relator to remit to the wife, nor was there an order requiring relator to deposit thirty-six percent of each monthly payment, as received by him, with the clerk of the court subject to withdrawal by the wife. The latter procedure was spelled out in direct payment of child support each month, and apparently these payments have been maintained as directed by the decree. Although relator reasonably could be expected to have understood that thirty-six percent of the retirement pay received by him each month had been awarded by the court to his former wife, the decree nevertheless signally failed to spell out in clear, specific, and unambiguous terms when and in what manner the retirement payments were to be divided between the parties. The decree did not advise relator by what specific acts he was expected each month, or each year, or at some other interval, to share the payments with his former wife. At most it can only be said that relator has withheld from his former wife thirty-six percent of the military retirement pay received by him each month, that being the percentage awarded to her by the divorce decree. But only by inference or conclusion can it be said that relator, by so withholding these funds, has failed to comply with an order found in the divorce decree. In Ex parte Preston, 162 Tex. 379, 347 S.W.2d 938 (1961) the trial court found that Preston had $21,000 of community property in his possession and that $10,000 should be awarded the wife. The court did not order the $10,000 delivered to the wife, but ordered Preston to deliver the entire sum of $21,000 to the court, so the trial court “[could] carry out its duty to make a division between the parties.” See Ex parte Yates, 387 S.W.2d 377, 380 (Tex.Sup.1965). In the case at bar no order was made having reference to division of the monthly retirement payments, either directly by relator or by the court upon delivery of the payments to the registry for such distribution. Since the record does not disclose that relator violated an order of the trial court, stated in clear and specific terms in the divorce decree, there was no basis for holding him in contempt. Moreover, the order of the court finding relator in contempt fails to state clearly in what respect the divorce decree was violated. Ex parte Proctor, 398 S.W.2d 917 (Tex.Sup.1966). The order finding relator in contempt is void, and we will order his discharge from custody. It also appears that there exists an accumulation, in an undetermined amount, of the wife’s shares in the military retirement, which were delivered to relator in installments but not remitted by him to the former wife. In addition, there remains the question of division in the future of installment payments which under present Federal rules and statutes are paid exclusively to relator. These and related questions may be resolved under principles of law found in Ex parte Yates, supra, Ex parte Preston, supra, Ex parte Duncan, 462 S.W.2d 336 (Tex.Civ.App. Houston 1st 1970, no writ), and in Greenhill: Habeas Corpus Proceedings, 1 St. Mary’s Law Journal, 1, 12 (1969); Note: 41 Tex.L.R. 141-143 (1962). In habeas corpus proceedings the Supreme Court and Courts of Civil Appeals are limited to the question of whether the commitment ordered by the trial court is void, and it is not enough that the order is erroneous, for the habeas corpus proceeding may attack only void orders. Ex parte Lee, 127 Tex. 256, 93 S.W.2d 720, 723 (1936); Ex parte Rhodes, 163 Tex. 31, 352 S.W.2d 249 (1961). Having held that the order is void, we do not reach the additional questions respecting the installments received in the past by relator and the division of installments which he may receive in the future. It is the order of this Court that relator be discharged from the contempt judgment and that relator’s sureties be released from liability on his bond. It is further ordered that the fine of $500 imposed on relator be remitted.

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J. Piner POWELL, Petitioner, v. FARM & HOME SAVINGS ASSOCIATION et al., Respondents. No. 17544. Court of Civil Appeals of Texas, Port Worth. April 19, 1974. Joe J. Johnson, Jr., Fort Worth, for petitioner. William C. Panned, Fort Worth, for respondent. OPINION PER CURIAM. This is an original proceeding before the appellate court. Petitioner J. Piner Powell requests that we issue a temporary injunction preventing the sale of certain realty under provisions of Deeds of Trust pending the hearing of an appeal perfected from the refusal of the District Court of Tarrant County to grant a temporary injunction preventing such a sale. (The record in the case on appeal has not yet reached this court, though there has been filed a Motion for Extension of Time to File Record.) Respondent is Farm & Home Savings Association. Premise for request for injunction lies in the necessity that sale of the property must be enjoined if jurisdiction of the appeal is to be preserved. On this we recently held that a petitioner for injunction would be entitled to the relief for which he prayed under like circumstances. Padgett v. Mutual Building & Loan Association, 504 S.W.2d 535 (Fort Worth, Civ.App., 1971, no writ history). In Padgett we followed the like holding in Dawson v. First National Bank of Troup, 417 S.W.2d 652 (Tyler Civ.App., 1967, no writ history). In Dawson the Tyler Court of Civil Appeals followed Madison v. Martinez, 42 S.W.2d 84 (Dallas Civ.App., 1931, error refused). By the Supreme Court’s notation “refused” upon the application for Writ of Error made in Madison it held that the judgment of the Dallas Court of Civil Appeals was correct and that the principles of law declared in its opinion were correctly determined. Hamilton v. Empire Gas & Fuel Co., 134 Tex. 377, 383, 110 S.W.2d 561, 565 (1937). Since the question has had the attention of the Supreme Court we could be at liberty to do nothing other than grant the petition for temporary injunction unless there was some discretion to be exercised by the appellate court. Relative to the matter of discretion as opposed to duty on the part of the court to protect its jurisdiction by preserving the subject matter of litigation in order to make its decrees effective the Supreme Court, though speaking of the District Court at the time, stated that a court “will protect its jurisdiction” for such a purpose. City of Dallas v. Wright, 120 Tex. 190, 36 S.W.2d 973, 77 A.L.R. 709 (1931). Justice Fun-derburk spoke of the protection of the appellate court’s jurisdiction as its “authority and duty”. Ferguson v. Ferguson, 98 S.W.2d 847 (Eastland Civ.App., 1936, no writ history). In Bell v. Young, 20 S.W.2d 135 (Waco Civ.App., 1929, no writ his tory) the court spoke in terms as “this court has the right, and should, in the exercise thereof,” protect its jurisdiction. In Dawson, supra, the court used the terms “a court will protect its jurisdiction by preserving the subject matter of the litigation”. And in Madison, supra, we deem it inescapable, by construction of language, 42 S.W.2d on page 86 of the opinion where it speaks of unlawful invasion of the jurisdiction of the appellate court, that it is the duty of such court to prevent the destruction of its jurisdiction. Our holding, therefore, is that we do not have any discretion, but rather a duty to grant the petition for temporary injunction in this case since the instruments of the petition disclose existence of a litigious controversy in the trial court and an appeal from a judgment denying the relief there sought. There is no doubt that our appellate jurisdiction has been invoked. The situation presents a peculiar irregularity: in the trial court the petitioner for temporary injunction, from a practical standpoint, is in the position where he might wisely seek beneficial delay — as well as a subsidiary benefit through saving the expense of the bond which would be necessary if his petition should be granted by actually trying to persuade the court to deny his request; and, simultaneously, with the respondent trying to protect himself by persuading the court to enjoin him upon the requirement that petitioner supply a substantial bond. The situation exists because if the petition for temporary injunction is denied all the petitioner has to do is perfect his appeal and hurry to the appellate court with an application for temporary injunction pending his appeal, without any bond securing respondent in any respect. There, if his documents are in order, he will be able to obtain injunction pending the appeal without bond because the writ of temporary injunction by the appellate court will be issued by it, in its own behalf theoretically, to protect its jurisdiction. When that reason provides basis for a writ of injunction the petitioner need supply no bond. This is the situation under existing law. We grant the temporary injunction pending decision upon merits of the appeal.

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MARK CENTURY CORPORATION, a corporation, Appellant, v. TIGER BROADCASTING COMPANY, a corporation, Respondent. No. KCD 26420. Missouri Court of Appeals, Kansas City District. May 6, 1974. Harry T. Limerick, Jr., Columbia, for appellant. Terence C. Porter, Columbia, for respondent. Before PRITCHARD, P. J„ and SOM-ERVILLE and SWOFFORD, JJ. PER CURIAM. This action began when appellant, plaintiff below, filed suit claiming that a lease agreement existed between it and the defendant, and that said lease agreement had been breached by the defendant. Defendant was the operator of radio station KTGR in Columbia, Missouri. By the terms of the lease agreement, plaintiff was to lease to defendant a radio library and program service entitled “Radio a la Carte”. The lease agreement was dated October 9, 1967, and was for a period of 156 weeks beginning December 1, 1967. For this service, the defendant was to pay plaintiff $7,020.00, in 36 equal monthly in- ° stallments. The petition alleged that plaintiff had fully performed all of the conditions of said lease agreement, but that defendant had failed and refused to make the payments as provided therein. Plaintiff prayed for judgment against defendant in the sum of $7,020.00. The defendant, by its answer, denied the allegations of the plaintiff’s petition, and, among other things, affirmatively stated that the lease agreement was not signed by anyone representing or acting for defendant with defendant’s consent or authority. The case was tried before the court sitting without a jury. The court found the issues in favor of the defendant. Plaintiff’s after trial motions to set aside the judgment and enter a judgment for the plaintiff and its motion for new trial were overruled. This appeal followed. Plaintiff’s theory at trial and on appeal, as revealed by its jurisdictional statement and the points asserted in its brief, was that Timothy Daniels, an employee of defendant, had implied authority to execute the lease agreement on behalf of defendant. Implied authority is grounded on actual authority and consists of those incidental powers which are reasonably necessary and proper to effectuate the expressly conferred authority, and which are not known to be prohibited. Prior v. Hager, 440 S.W.2d 167 (Mo.App.1969); Wyler Watch Agency v. Hooker, 280 S.W.2d 849 (Mo.App.1955). Frequently, the incidental powers reasonably necessary to accomplish the purpose or purposes of the expressly conferred authority are not specifically delineated. Consequently, the law implies authority to do those things reasonably necessary to accomplish the purpose of the expressly conferred authority. Vaughn v. Great American Insurance Company, 390 S.W.2d 622 (Mo.App.1965); Brede Decorating, Inc. v. Jefferson Bank and Trust Co., 345 S.W.2d 156 (Mo.1961); Bredel v. Parker-Russell Min. & Mfg. Co., 21 S.W.2d 932 (Mo.App.1929); Murphy et al v. Knights of Columbus Bldg. Co., 155 Mo.App. 649, 135 S.W. 446 (1911). Thus, implied authority is actual authority which the principal intended the agent to have which lacks direct proof, but which is implied or inferred from relevant facts and circumstances as reasonably necessary to accomplish the purpose or purposes of the expressly conferred authority. Wyler Watch Agency v. Hooker, supra; E. C. Robinson Lumber Company v. Lowrey, 276 S.W.2d 636 (Mo.App.1955). It has been said that implied authority properly concerns only the extent of an express authority actually granted. Jeff-Cole Quarries, Inc. v. Bell, 454 S.W.2d 5 (Mo.1970). If no actual authority exists, no authority can be implied. Prior v. Hager, supra. The law ordinarily indulges no presumption that agency exists, and the burden of establishing agency rests upon the party by whom it is alleged. Wyler Watch Agency v. Hooker, supra. Thus, it was incumbent upon plaintiff to show the existence of evidence both as to Daniels’ expressly conferred authority and facts from which it might reasonably be implied or inferred that defendant intended Daniels to have had authority to execute the contract in question on behalf of defendant because such was reasonably necessary to carry out the purposes of Daniels’ expressly conferred authority. E. C. Robinson Lumber Co. v. Lowrey, supra; Baker v. Aetna Casualty and Surety Co., 193 S.W.2d 363 (Mo.App.1946); Thimmig v. General Talking Pictures Corporation, 85 S.W.2d 208 (Mo.App.1935). Plaintiff presented only two witnesses, Franklin Charles Beck and Justin John. The testimony of Franklin Charles Beck, executive vice-president and general manager of Mark Century Corporation, was presented by deposition. Beck did not execute the lease agreement for plaintiff and never met Daniels. He testified that he did have two telephone conversations with Daniels prior to the execution of the lease agreement, but had never discussed Daniels’ legal capacity. At best, his testimony merely showed he believed that Daniels had authority to enter into the lease agreement with Mark Century Corporation. Justin John, assistant vice-president, Boone County National Bank, testified that the City Business Directory of Columbia, Missouri, listed Daniels as manager of radio station KTGR. The defendant’s evidence affirmatively showed that Louis Shelburne was president and general manager of radio station KTGR, and had held that position at all times here relevant. It was he who did the hiring and firing, approved the bills, signed all the checks, worked with the logging of ads and the selling of ads. It was he who had control of the operation of the radio station. It was he who signed all contracts executed for and on behalf of the radio station. Since the organization of the radio station in 1966, Shelburne had been listed as the general manager in the Standard Rate and Data Publication, a publication which circulates through the radio broadcast industry for the purpose of keeping interested persons informed of facts about the individual stations listed. The defendant’s evidence further showed that prior to June, 1967, Daniels’ title and duties were that of program director for defendant. Though Daniels was given the title of station manager in June, 1967, his duties remained the same as they were when he was program director. As program director, his duties were to select the records to be played and to control the air times for the station’s announcers. He was not given any duties with respect to hiring or firing of employees, nor was he given any duties with respect to sale of ads for the station. He was never authorized to execute contracts of any kind on behalf of the corporation, or pay corporate bills. It appeared that the lease agreement that Daniels executed with Mark Century Corporation was the only contract he ever executed on the purported behalf of the station. The trial court made no specific findings but found the issues in favor of the defendant. Since all fact issues are deemed found in accordance with the result reached [Rule 73.01(b)], the trial court found that Daniels had no implied authority to execute the contract sued on. Appellate review of this action is de novo upon the law and the evidence, due deference being given to the trial court’s findings as to controverted factual matter involving the credibility of the witnesses, and the judgment of the trial court will not be disturbed unless it is clearly erroneous. Rule 73.01(d), V.A.M.R. Review of this record reveals that the trial court could have reasonably found that Daniels had no express authority to execute the contract in question. Further, since the evidence clearly showed that Daniels’ expressly conferred authority as program director was limited to selecting records and controlling air times for announcers, the trial court could have reasonably found that power to execute the contract in question was not reasonably necessary for Daniels to carry out such expressly conferred authority. Therefore, the trial court could have reasonably found, and it is deemed to have done so, in view of the judgment rendered in favor of defendant, that Daniels had no implied authority to execute the contract in question. The judgment of the trial court was not clearly erroneous and therefore proper. We do not pass on whether Daniels, having been given the title of station manager, had apparent authority to execute this contract since apparent authority was not pleaded and was clearly not the theory of the case below as demonstrated by plaintiff’s jurisdictional statement. Plumlee v. Ramsay Dry Goods Company, 451 S.W.2d 603 (Mo.App.1970); Service Construction Co. v. Nichols, 378 S.W.2d 283 (Mo.App.1964). The judgment is affirmed.

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STATE of Missouri, Respondent, v. Clifford Eldis CLARK, Appellant. No. KCD26553. Missouri Court of Appeals, Kansas City District. May 6, 1974. Willard B. Bunch, Public Defender, Sixteenth Judicial Circuit, Kansas City, for appellant. John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for respondent. Before DIXON, C. J., and SHANGLER and WASSERSTROM, JJ. PER CURIAM: By jury verdict, the defendant was convicted of sodomy, Section 563.230 RSMo 1969, V.A.M.S., and sentenced to imprisonment for 25 years. Defendant has appealed his conviction, alleging three grounds of error. These are the refusal of the trial court to permit inquiry by defense counsel, on voir dire examination, regarding the verdict reached by the veniremen who admitted prior experience on juries, the trial court’s refusal to dismiss the information, on the grounds that the time of the offense was not specifically stated, or to require the prosecution to state more specifically the time of the offense and the refusal of the court to instruct the jury on a specific time that the offense occurred. The pertinent facts on the issue of the voir dire examination are as follows. A venire of forty was summoned and examined for jury service. In response to questioning by the prosecutor, seven members of the panel answered affirmativly that they had previously served as jurors in criminal cases. Stating that he did not wish to know the verdict, the prosecutor then asked whether or not a verdict was reached. For three of the jurors, no verdict had been reached. Without objection from defense counsel, the prosecutor determined that one was a mistrial, another a hung jury. The result in the third trial was not revealed. When defense counsel later attempted to question juror Kincheloe, who sat on a jury which reached a verdict, regarding the verdict reached, the prosecutor objected and was sustained. Later defense counsel requested that the record show his objection to the court’s ruling denying discovery of the verdict, for each juror who had previously sat on a criminal case. It is well settled that control of the extent of voir dire examination rests in the broad discretion of the trial court. State v. Huffer, 424 S.W.2d 776 (Mo.App.1968); State v. Crockett, 419 S.W.2d 22 (Mo.1967). An appellate court will not in-feriere with this discretionary control of voir dire examination unless there is a demonstrable manifest abuse of that discretion and probable prejudice to the complainant. Olsten v. Susman, 391 S.W.2d 331 (Mo.1965); M & A Electric Power Cooperative v. True, 480 S.W.2d 310 (Mo.App.1972). The burden is upon appellant to demonstrate that the court abused its discretion. State v. Edmonds, 468 S.W.2d 685 (Mo.App.1971). Defendant seeks to establish such an abuse of discretion because, in the language of defendant’s brief, “defense counsel was thereby denied a germane piece of information thus preventing him from being able to determine the venireman’s bias, and to intelligently exercise his preemptory challenges.” Defendant does not spell out the information that was “germane,” but presumably, the fact of a guilty or not guilty finding is meant. Coupled with the reference to preemptory challenges, this could only mean that defendant is arguing that because a juror had participated in a guilty verdict he or she would, therefore, be suspect as a fair and impartial juror in the case on trial, and the failure of the trial court to permit this investigation constitutes an abuse of discretion. Such an abuse of discretion occurs “when a trial court’s ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” State v. Edmonds, 468 S.W.2d 685, 688 (Mo.App.1971). Tested by that standard, we cannot find that the trial court’s ruling is contrary to the logic of the circumstances. To so hold would, in effect, confess the premise that all veniremen who participate in a guilty verdict are thereafter prej udiced against all defendants. To state the proposition is to demonstrate its fallacy. The trial court did not, in our view, act in an arbitrary and unreasonable manner. There being no abuse of discretion, the trial judge’s ruling will not be disturbed. The evidence offered on the substantive offense is as follows. The only evidence presented by the State was the testimony of the victim of the offense, E. C., a 12-year old boy. His testimony was that he initially met the defendant on August 15, 1972. The victim and a friend were given some money by defendant to bring him some ice cream from the store. Defendant told E. C. and his friend that they could come to his house any time they wanted. Also, defendant gave E. C. and his friend each a dollar to “watch his house” for burglars. The next day, Wednesday, August 16, 1972, the date of the alleged offense, E. C. and his friend again went to defendant’s home. During the afternoon, they went to defendant’s house and played in the yard. After an undisclosed time, defendant arrived home with another man in a pick-up truck. The victim testified that the defendant arrived home wearing a “Texaco” shirt. Defendant’s companion left after he and defendant had each consumed a beer. E. C.’s friend left soon thereafter, leaving E. C. and defendant alone in defendant’s house. Seated in the kitchen in his underwear, defendant told E. C. of his military service and fighting ability. Defendant also showed him and read to him from books which the witness described as “dirty” and “nasty.” When defendant stopped reading, he wanted E. C. to go into the bedroom with him. The third time that the victim was directed to “come on,” defendant’s voice was “real mean.” Entering the bedroom, the victim was ordered to take off his clothes, again in a “mean” voice. After ordering E. C. onto the bed, defendant committed an act of sodomy by the insertion of his genital 'organ into the rectum of E. C. After a minute or so, the victim was released, allowed to dress and go home. E. C. did not tell his parents of the occurrence when he arrived home because he was scared. It was not until approximately a week later that he related the occurrence to his parents. On cross-examination, additional information was elicited from E. C. He did not know the date of the offense, but with the help of his father and the prosecutor, he had “thought back the days,” and been told the day of the incident. E. C. further testified that the incident occurred during the daytime before supper. Defendant did not testify, but presented two witnesses for the purpose of establishing an alibi. The owner of the service station at which defendant was employed testified that during the week of August 16, 1972, defendant’s working hours were from 7 a.m. to S p.m. Using his “payroll book,” the witness stated that defendant was paid at the rate of $25 a day, and for the week of the offense, had earned $150. However, he was not able to testify as to the days or hours actually worked by defendant during the week. Nor could he be certain whether he had been at the station on August 16, 1972, to know that defendant had been at the station during defendant’s scheduled working hours. A co-worker of defendant at the station also testified on behalf of the defendant. This witness frequently gave defendant a ride to and from work and did drive a pick-up truck. He had occasionally stopped at defendant’s for a beer after work. However, the witness “couldn’t say” whether he had worked with defendant on August 16, 1972, or whether he had taken defendant either to or from work on that day. The defendant’s contention is that the time of the offense needed to be stated with particularity in order to permit the defendant to meet the charge with a defense of alibi. This information, nonetheless, does specify a day certain and the defendant, by the State’s allegation of the occurrence on the 16th of August, did have sufficient notice of the time of the offense as to permit the preparation of his defense of alibi. The information was amended to show this date on the day of trial, but it is apparent that defense counsel knew of the intent to so amend. In fact, the State went further in response to a request by the defense and indicated the proof would be that the offense occurred between 3 p.m. and “suppertime.” The defendant’s counsel even, with this disclosure as to the State’s intended proof, argued that he would not be able to defend on a theory of alibi. The court then inquired of the State if the complaining witness would be there that day and stated to defense counsel that after the witness had testified, the court would, if requested, permit the defendant time to “obtain any witnesses.” The defendant concedes that the information need not specify the time of the offense where time is not of the essence. State v. Pigg, 312 Mo. 212, 278 S.W. 1030 (Mo. Banc 1925). The presence of the accused at the time and place of the offense is a question of fact on which the State has the burden of proof. State v. Reece, 325 S.W.2d 656 (Mo.1959). For that reason, it is also true that when alibi is interposed as a defense, time may be of “decisive importance” even though not of the “essence” of the offense. State v. Armstead, 283 S.W.2d 577, 580 (Mo.1955); State v. Bowles, 360 S.W.2d 706 (Mo.1962). Those cases announce a rule of fundamental fairness that when an alibi is interposed, the time span within which the crime is alleged to have occurred must not be such as to place an impossible burden on the defendant to offer evidence of his whereabouts over an extended period of time. As noted above, prior to trial, the defendant knew the State’s proof would be limited to after 3 p.m. on the 16th of August. After the complaining witness testified the time was further limited as being in “daylight hours,” “before suppertime.” If alibi evidence for that period of time on that date was available, it is hard to conceive that it could not have been presented, particularly in view of the trial court’s offer to permit time to locate any witnesses. Defendant has cited no case and none has been found that would even indicate error in this information. On the grounds specified, the point is overruled. Defendant complains that the State’s principal instruction burdens his alibi defense since it does not specify the precise time of the offense. The instruction requires a finding that the offense occurred on the 16th day of August, 1972. Defendant cites State v. Smith, 212 S.W.2d,787 (Mo.1948) for the proposition that “an instruction which disparages an alibi defense is erroneous. Smith, supra, and cases cited therein, are all cases where the alibi is characterized as “well worn” or a “good defense in law” and the courts have sustained a claim of error on the grounds that the language of the instruction itself casts doubt upon the validity of the defense. No such complaint can be made as to the language of the instruction given in this case, and Smith and other like cases have no application. The point is without merit and is denied. Judgment affirmed. All concur.

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William C. ALLDREDGE, Respondent, v. TWENTY-FIVE THIRTY-TWO BROADWAY CORPORATION, Appellant. No. KCD 26403. Missouri Court of Appeals, Kansas City District. May 6, 1974. Robert B. Olsen, Kansas City, for appellant. Frederick Beihl, Kansas City, for respondent. Before PRITCHARD, P. J., and SWOFFORD and SOMERVILLE, JJ. SWOFFORD, Judge. This is an appeal from a judgment for $6,974.48 in favor of the respondent and against the appellant in a court-tried case based upon a written contract of employment and involving respondent’s claim for “termination payment” thereunder. The court below was not requested to, and did not, make any specific findings of fact or conclusions of law nor file a written opinion as contemplated by Rule 73.01(b), V.A.M.R., but entered a general verdict and judgment in favor of the plaintiff-employee. All fact issues shall, therefore, be “deemed found in accordance with the result reached.” Rule 73.01(b). Our review is upon both the law and the evidence as in suits of an equitable nature, and the judgment below shall not be set aside unless clearly erroneous, and we give due regard to the superior opportunity of the trial court to judge the credibility of the witnesses. Rule 73.01(d). Coach House of Ward Parkway, Inc. v. Ward Parkway Shops, Inc., 471 S.W.2d 464, 465 (Mo.1971); Mission Insurance Co. v. Ward, 487 S.W.2d 449, 451 (Mo. banc 1972). We have carefully reviewed the transcript of the evidence, the exhibits and the briefs of the parties and find that there is very little factual dispute in this case. The defendant offered no evidence. This case, in essence, resolves to the narrow point of the interpretation to be given an employment contract between the parties, which contract is unambiguous and clear. We have concluded that the court below reached the right result and we affirm. The essential factual background of this case may be summarized as follows : In 1930, the plaintiff began his employment with the Seavey and Flarsheim Brokerage Company, a Missouri corporation engaged in the grocery brokerage business. Upon his promotion to the position of Manager of the Merchandise Department on November 26, 1951, plaintiff and his employer entered into the written employment contract here involved. Such contract was to “remain in force and effect during the pleasure of both parties” and could be terminated by written notice. In addition to the monthly salary specified in the agreement, the contract provided for “additional compensation” to be paid upon the termination of the contract. In the event the company terminated the agreement, such sum was to be 10% of the compensation paid to Alldredge in the previous twelve months plus 1% of the total compensation paid to Alldredge during his total period of employment by the company. In the event Alldredge terminated the agreement, the sum was to be five per cent (5%) of the compensation paid in the previous twelve months plus one-half of one per cent (½%) of the compensation paid to Alldredge during his employment by the company. The contract provided, however, that the payment of such additional compensation was to be conditioned upon All-dredge’s compliance with certain “restrictive provisions”. The “restrictive provisions” were to the effect that after termination by either party, Alldredge would not engage directly or indirectly in the grocery brokerage business in competition with the company-employer. These provisions read as follows: “6. In the event Alldredge shall terminate this Agreement, he shall not and expressly agrees that he will not, for a period of four (4) years from the date of such termination, in the States of North Dakota, South Dakota, Nebraska, Kansas, Oklahoma, Minnesota, Iowa, Missouri, Arkansas, Wisconsin, Illinois, or in any other state of the United States in which the Company may at the time be operating: (a) engage directly or indirectly in his own account or name, or in the account or name of another person or concern, in the grocery brokerage business or in any phase thereof (i.e. the brokerage of such commodities handled or represented by the Company now or at any time hereafter up to the date of termination) ; (b) render service or lend his name directly or indirectly to any other person or concern engaged in the grocery brokerage business or any phase thereof as above defined; (c)directly or indirectly act as a sales representative for any prinicipal now, or at any time hereafter to the date of such termination, represented by the Company, or for any competitor of any such principal. 7. If this Agreement shall be terminated by the Company then Alldredge agrees that he shall not and will not for a period of two (2) years from the date of such termination in any of the territory described in paragraph 6 do any of the acts or things he has agreed he shall not do in subparagraphs (a), (b) and (c) of said paragraph 6.” In 1966, the Seavey and Flarsheim Brokerage Company entered into negotiation with The Hoosier Brokerage Corporation whereby Hoosier was to purchase all of the assets of Seavey except its cash and accounts receivable. In addition to the purchase of the physical assets, Hoosier purchased the good will and the exclusive right to use the name “Seavey and Flar-sheim”. The selling company (plaintiff’s employer) took the name “Twenty-Five Thirty-Two Broadway Corporation” and went into an entirely different line of business. The buying company took the name “Seavey and Flarsheim Brokerage Company, Inc.” and continued in the grocery brokerage business. The uncontroverted testimony of the plaintiff was to the effect that as a shareholder in the corporation, he received written notice of a shareholders’ meeting to be held in January of 1966 for the purpose of approving the proposed sale to Hoosier; that he did not attend the meeting; and that he had no knowledge of the detailed terms of the sale contract between his employer and Hoosier. At this time, he was Assistant to the President and Manager of the St. Louis office. He further testified that he did know that the sale was to take place by the end of February, 1966 and that he wrote to the President of the corporation, Louis Flarsheim, to inquire about the additional compensation due upon termination. Plaintiff’s Exhibit No. 3, a carbon copy of the letter, was admitted into evidence without objection, and reads as follows: “To Mr. Louis Flarsheim From W. C. Alldredge Date 2-17-66 Dear Louis: Since Seavey & Flarsheim Brokerage Company is terminating my contract, I expect to be paid in accordance with the terms of that contract. The figures that Mr. Blackburn gave me on his recent visit to St. Louis were erroneous. Please have Mr. Rice correct these figures, and send me a check as soon as possible. Yours very truly, W. C. Alldredge cc: Mr. Woodson WCA/jw” Plaintiff testified that he received the following “Memo” (Plaintiff’s Exhibit No. 4, received into evidence without objection) as a reply to his letter: “March 1, 1966 Memo William C. Alldredge termination pay under his employment agreement. Salary for full time employeed (sic) by company Through february (sic) 28, 1966 $517,447.63 Salary for his services for past 12 months $ 18,000.00” Under date of March 1, 1966, Louis Flarsheim informed the employees, including the plaintiff, of the sale by letter, stating: “To All Seavey & Flarsheim Employees No doubt you have informally heard that we have been negotiating a sale of our business and assets. This letter is official notice to you that effective as of midnight, February 28, 1966, that sale was consummated. The sale, of course, effects an immediate termination of our payroll and your employment by our company. On behalf of all our management I want to express our great appreciation for your loyalty and cooperation to the company over the past years, and I want to add my own personal thanks. We are pleased to be able to tell you the business of Seavey & Flar-sheim will be continued under the name Seavey & Flarsheim Brokerage Company, Inc., and Marsh E. Blackburn, as President, will be writing you within the next few days. In the interim, he has asked me to advise you that he desires you to continue your employment with that company. We are confident you will have a successful and happy relationship under the new management. Sincerely, /s/ Louis Flarsheim Louis Flarsheim, President LF/bm” (Emphasis supplied) Plaintiff testified that in February, 1966, Mr. Blackburn and one Stan Merchant, visited him in St. Louis and attempted to get him to stay with the new .company. He declined and told Blackburn he would not stay. There were problems in the St. Louis office and the second in command there had recently resigned. Blackburn asked him to stay on in St. Louis until a replacement for him, Alldredge, could be found. Blackburn again visited plaintiff in St. Louis in March, 1966, right after the sale and again asked him to stay with the new organization. Again plaintiff declined, but did agree verbally with Blackburn to remain in St. Louis in a strictly administrative capacity to oversee that office operation “on a temporary basis * * * not to exceed a one month period of time.” The plaintiff stayed with the new company in that capacity for 25 days and was paid for these services. On March 25, 1966, he permanently severed all connections with the new company. It should be further noted that Blackburn at this time did not claim, for the new company, any rights as assignee of the plaintiff’s employment contract. After Alldredge left the employ of Seav-ey and Flarsheim Brokerage Company, Inc., he immediately began his own grocery brokerage business. On September 7, 1966, Alldredge filed a petition seeking the additional termination compensation under the employment contract of November 26, 1951. On August 29, 1972, judgment was rendered for plaintiff in the amount of $6,974.48 (10% of plaintiff’s annual salary and 1% of the compensation earned by plaintiff while employed by defendant), plus interest at 6% from March, 1966. The accuracy of this computation is not disputed. Likewise, there is no dispute that the defendant did in fact terminate All-dredge’s employment. The letter of March 1, 1966, addressed to all employees, announced the “immediate termination of our payroll and your employment by our company”. (Emphasis added). Indeed, the brief of the defendant filed in this court argues, in part, that plaintiff “did not comply with the restrictive provision; he engaged in the grocery brokerage business in Missouri immediately after his employment was terminated by appellant.” (Emphasis supplied). It should be further noted that this letter contains no statement of any purported assignment of the plaintiff’s employment contract nor request that he agree to any such assignment. The issue here is: Was the plaintiff entitled to the “additional pay” under the employment contract even though he immediately engaged in the grocery brokerage business after being terminated, where the defendant sold the assets of the corporation, terminated all of its activities in the grocery brokerage business, and purportedly assigned the contract to the buyer as part of the “good will” assets? The defendant argues, first, that the contract “should be construed as binding him not to compete with the business in which he was employed, whether that business was conducted by his then employer or by its successor.” This argument lacks merit. The contract here involved clearly was drafted to protect the defendant’s predecessor from competition by the plaintiff in the food brokerage business in the event the employer-employee relationship ceased. The food brokerage business is highly competitive and its success depends, in great part, upon the personal relationships and business acquaintances developed over a period of time. Renwood Food Products, Inc. v. Schaefer, 240 Mo.App. 939, 223 S.W.2d 144, 152 (1949). Thus, the purpose of such contracts is to prevent the employee from taking unfair advantage by use of “an influence acquired by said employee over the customers of his employer.” Renwood Food Products, Inc. v. Schaefer, supra, l.c. 151. The plain language and meaning of the contract is that the restrictive provisions of the agreement were to prevent the plaintiff from competing with defendant (not its successors or assigns) in the grocery brokerage business. There is no language in the contract to indicate that the parties intended otherwise. Plaintiff is not in competition with defendant because the defendant no longer is engaged in the grocery brokerage business. Thus, plaintiff has not violated the restrictive provisions of the employment agreement. In the alternative, the defendant argues that it assigned this contract to Hoosier when it sold the assets (including good will) to Hoosier. Defendant cites cases from other jurisdictions to support this proposition. However, it overlooks the controlling decision here of Allied Pipeline Corp. v. Studley, 191 S.W.2d 317 (Mo.App.1946), wherein the court held: “The law is well settled that a contract is not assignable without the consent of both parties where the personal acts and qualities of one of the parties form a material and ingredient part of the contract.” loc. cit. page 320. See also: Sympson v. Rogers, 406 S.W.2d 26, 30 (Mo.1966) and 6 Am.Jur.2d Assignments, § 11. Here, the evidence from the trial below clearly shows that the plaintiff did not give his consent to, nor have any knowledge of, any such purported assignment. Indeed, the record is silent as to any attempted assignment, except as such might be improperly and illegally deemed to have resulted ipso facto and without the employee’s consent by reason of the sale of the “good will”. Further, there is no language in the 1951 employment contract to indicate that the parties ever intended that such contract could be assigned. That being so, the contract was not assigned, so far as plaintiff is concerned, to the buyer of the business. If differences exist as to these restrictive provisions, such confront plainiff’s original employer and Hoosier the purchaser of the business, and cannot be adjudicated here. Lastly, the defendant argues that the contract provided that in the event a court determined the restrictive provisions to be unenforceable, there would be no “termination payment”, and since the trial court found for plaintiff, the trial court must have determined the restrictive provisions to be unenforceable. This argument must fail. It does not follow that a judgment for plaintiff necessitates a determination that the restrictive provisions are unenforceable. From the face of the contract, the provisions would be enforceable had the defendant continued in business, since the covenant not to compete is reasonable as to time and space. Mills v. Murray, 472 S.W.2d 6, 11-12 (Mo.App.1971); R. E. Harrington v. Frick, 428 S.W.2d 945 (Mo.App.1968) and Willman v. Beheler, 499 S.W.2d 770 (Mo.1973). Rather, it appears that the plaintiff has not violated the restrictive provisions of the contract for the simple reason that he is not in competition with the defendant. The judgment of the trial court is clearly proper under the law and the evidence, and is accordingly affirmed. All concur.

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The GERRY ELSON AGENCY, INC., Respondent, v. James B. and Lulu MUCK, Defendants, and Kissick Truck Lines, Inc., Garnishee-Appellant. No. KCD 26400. Missouri Court of Appeals, Kansas City District. May 6, 1974. William R. Fish, Douglas H. Delsemme, Lowell L. Knipmeyer, Knipmeyer, Mc-Cann, Fish & Smith, Kansas City, for garnishee-appellant. Richard N. Brown, Brown & Casey, Brookfield, for respondent. Before PRITCHARD, P. J., and SWOFFORD and SOMERVILLE, JJ. SWOFFORD, Judge. This is an appeal from a judgment against garnishee-appellant entered in a court-tried case. The facts are relatively simple and are not in substantial dispute. On November 17, 1970, the respondent obtained a judgment in the Magistrate Court against James B. and Lulu Muck in the amount of $1482.71. This judgment was filed in the Circuit Court of Linn County, Missouri and a general execution was issued. In aid of such execution a summons in garnishment was directed to Kissick Truck Lines, as garnishee, and served upon it in Jackson County, Missouri. The issues below were made upon the judgment creditors’ denial of the garnishee’s answers to interrogatories and the garnishee’s reply to such denial. Thus drawn, the basic issues presented may be simply stated. At the time of the service of the garnishment, Kissick owed the judgment debtor, James B. Muck, the sum of $1116.16 under the terms of a “Lease and Operating Agreement” between Muck and Kissick. In response to the garnishment, Kissick voluntarily paid into the registry of the court the sum of $279.04, which was 25% of the amount of its indebtedness to Muck under this agreement. Its position is that the amount it owed Muck was “earnings” for “personal services” furnished by Muck and that under the Consumer Credit Protection Act, Sub-chapter II, Restrictions on Garnishment, 15 U. S.C., § 1671 et seq., only 25% of the $1116.16 was subject to the garnishment. On the other hand, the respondent judgment-creditor asserts that such federal statute does not apply because the money due Muck was not derived from “earnings” for “personal services” but was derived from “equipment rentals” under the contract above referred to and, therefore, the whole sum of $1116.16 was subject to execution and garnishment. This issue was decided in favor of the respondent in the trial below and judgment entered against the garnishee for the full sum of $1116.16, although Kissick had theretofore voluntarily paid to Muck, after the service of garnishment upon it, 75% of the amount involved. From this adverse result, garnishee appeals. The parties did not request of the trial court any findings of fact or conclusions of law and it made none. We must assume on this appeal therefore, that all issues of fact were “found in accordance with the result reached”, Rule 73.01(b), V. A.M.R. That is to say, the trial court found that the money due from Kissick to Muck did not represent “earnings” for “personal services” and therefore did not enjoy any exemption from garnishment under the federal statute. Our review is upon both the law and the evidence as in suits of an equitable nature, and the judgment of the trial court will not be set aside unless clearly erroneous. Rule 73.01(d); Wykle v. Colombo, 457 S.W.2d 695, 699 (Mo.1970); Mission Ins. Co. v. Ward, 487 S.W.2d 449, 451 (Mo. banc 1972). In determining whether the judgment of the trial court is proper, on the one hand, or clearly erroneous, on the other hand, we must, to a large degree, plow virgin ground. Neither able counsels’ briefs nor our independent research has revealed any decision of state or federal courts which marks any clear road of precedential value involving the garnishment exemption of the federal act. Of this we can be sure, we are dealing with an exemption statute which has preempted the field over state laws so far as applicable to certain types of garnishment proceedings. Hodgson v. Cleveland Municipal Court, 326 F.Supp. 419 (N.D.Ohio, 1971). Before looking at the actual terms of the federal garnishment law applicable to the case before us, the intent of Congress in the enactment of that law is clearly recorded and may be found in 1968 U.S.Code Cong, and Admin.News, p. 1962 et seq. At page 1963, it is stated: “Title II restricts the garnishment of wages, which the committee finds to be a frequent element in the predatory extension of credit, resulting, in turn, in a disruption of employment, production, and consumption.” (Emphasis added) and “Title II of your committee’s bill, restricting the garnishment of wages, will relieve many consumers from the greatest single pressure, forcing wage earners into bankruptcies.” (Emphasis added) Likewise, at page 1979, it is stated: “The limitations on garnishments of wages adopted by your committee, * * * will relieve countless honest debtors driven by economic desperation from plunging jnto bankruptcy in order to preserve their employment and insure a continued°medns of support for themselves and their, families.” (Emphasis added) This same service at page 1966 quotes from the President’s message to Congress on poverty, which message may well have been the genesis for the statute here considered : “Hundreds of workers among the poor lose their jobs or most of their wages each year as a result of garnishment proceedings. * * * (Emphasis added) I am directing the Attorney General * * * to recommend the steps that should be taken to protect hard-earned wages and the jobs of those who need the income most.” (Emphasis not the Court’s) When the statute was enacted on May 29, 1968 (to take effect on July 1, 1970), it contained the following: “Section 1671. Congressional findings and declaration of purpose. (a) The Congress finds: (1) The unrestricted garnishment of compensation due for personal services encourages the making of predatory extensions of credit. Such extensions of credit divert money into excessive credit payments and thereby hinder the production and flow of goods in interstate commerce. (2) The application of garnishment as a creditor’s remedy frequently results in loss of employment by the debtor, and the resulting disruption of employment, production, and consumption constitutes a substantial burden on interstate commerce. (3) The great disparities among the laws of the several States relating to garnishment have, in effect, destroyed the uniformity of the bankruptcy laws and frustrated the purpose thereof in many areas of the country. (b) On the basis of the findings stated in subsection(a) of this section, the Congress determines that the provisions of this subchapter are necessary and proper for the purpose of carrying into execution the powers of the Congress to regulate commerce and to establish uniform bankruptcy laws.” (Emphasis added) It is manifestly clear that the intent of Congress in the enactment of this subchapter of the Consumer Credit Protection Act was to grant an exemption to wage earners from burdensome garnishments, to protect employment of wage earners, and to prevent bankruptcies. It was to grant relief for the wage earner debtors and “more particularly for his family”, against economically destructive garnishments. Murray v. Zuke, 408 F.2d 483 (8th Cir., 1969); In re Kokoszka, 479 F.2d 990, 996-997 (2d Cir., 1973). Its provisions are remedial in nature and should be liberally construed. In re Cedor, 337 F.Supp. 1103 (N.D.Cal., 1972). In implementing this purpose, the Congress was faced with “the great disparities among the laws of the several States relating to garnishments” as noted in Section 1671 of the Act as above quoted and used the term “earnings” as description of the subject matter of the garnishment to which the exemption was applicable. It did so, however, without diminishing in any degree the basic and avowed purpose of the law. Section 1672, 15 U.S.C., is in the following terms: “Section 1672. Definitions. For the purposes of this subchapter: (a) The term ‘earnings’ means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus, or otherwise, (b) The term ‘disposable earnings’ means that part of the earnings of any individual remaining after the deduction from those earnings of any amounts required by law to be withheld. * * * ” (Emphasis added) Section 1673, 15 U.S.C.A., in pertinent part is as follows: “Sec. 1673. Restriction on garnishment, (a) Maximum allowable garnishment. * * * the maximum part of the aggregate disposable earnings of an individual for any workweek which is subjected to garnishment may not exceed (1) 25 per centum of his disposable earnings for that week, or * * J*C ⅜ * * (c)Execution or enforcement of garnishment order or process prohibited. No court of the United States or any State may make, execute, or enforce any order or process in violation of this section.” It seems clear that in ruling this matter the courts are not concerned with and should ignore any “label” given to the money due, i. e. wages, salary, commission, etc. The sole criteria for the exemption is that the funds (“earnings”) subject to the garnishment, in fact and in a strict sense, represent “compensation” for “personal services”. We are dealing with the construction or interpretation of an exemption statute and in such an undertaking each case must be decided upon its own facts. Bethesda General Hospital v. State Tax Commission, 396 S.W.2d 631 (Mo.1965). The garnishee, Kissick Truck Lines, was a common carrier of certain specified commodities in several midwestern states. However, it owned no trucking equipment, employed no drivers and it had no employees except office personnel. We glean from this record that its method of operation was to solicit freight from its customers and rent the necessary equipment to transport the freight, and thus fulfill its obligations as common carrier under con-traéis designated “Lease and Operating Agreement”. John B. Muck was such a lessor. The agreement here involved was dated January 2, 1970 and was a printed form in which Kissick Truck Lines, Inc. was named as lessee and Muck as lessor. The subject matter of the lease was 8 tractors and 8 trailers, described and designated in an appendix to the agreement. The provisions of this lease (Garnishee’s Exhibit A) may be summarized as follows: 1. Muck agreed to “lease and deliver complete possession and control” of the equipment to Kissick for a one-year period; provided that after the lease had been in effect for 30 days, either party could terminate by giving written notice. 2. Muck agreed to furnish all gas, oil, tires, license plates “and other expenses incidental to the operation and maintenance of said equipment”. Muck agreed to “indemnify against any liability for expense of labor, materials or appliances purchased or used in connection” with the equipment “and for any loss or damage to said equipment.” 3. Muck agreed (at his own expense) to paint and letter the equipment according to Kissick’s specifications before delivery of the equipment. 4. Muck agreed to “observe all safety and other requirements” of the ICC and all other regulatory bodies and to pay all fines which may result from a failure to comply with such requirements. 5. Kissick agreed to maintain the required insurance coverage to cover the equipment for stich periods as the equipment was “being used in connection with the transportation of property under the authority and with the authorization” of Kissick. Muck agreed to indemnify Kissick against liability arising from the negligence of the drivers of the trucks. 6. Muck agreed to purchase liability and property insurance to insure his equipment at all times such equipment was not in use by Kissick. 7. All shipments were to be handled, billed and delivered in Kissick’s name. 8. The compensation to Muck “for the use of the equipment” was to be: 75% of Kissick’s revenues when tractors and trailers were used; 65% of Kissick’s revenues when a tractor alone was used. Muck also agreed to remit 10% of his revenues to Kissick for shipments hauled by Muck for himself. 9. Muck granted Kissick an “exclusive option to purchase the equipment” at any time during the lease “for the sum of $_”. (Amount not filled in) 10. “This lease shall supersede and cancel all such lease agreements heretofore entered into between the lessee and the lessor on the equipment herein.” (Emphasis added) The only witness to testify was Kenneth Smith, Executive Vice President of Kis-sick. He testified that Muck hired and paid the drivers of the equipment and that they were Muck’s employees; that Muck’s drivers picked up the freight and loaded and unloaded it; that Muck made safety inspections of the equipment; that Muck performed his own maintenance and repairs in his own shop; that Muck occasionally drove some of the equipment himself; that Muck sometimes solicited business for Kissick and was paid his percentage of the freight billings therefor and Muck was paid weekly upon the basis of his percentage of the billings as provided in the lease agreement. It should be noted that throughout the pleadings and this - record the parties referred to the arrangement between Muck and Kissick as an “equipment rental” agreement or “lease”. It is clear that Muck did not occupy the traditional relationship of an employee of Kissick. There is no evidence that Kissick exercised any control over the details of the work of Muck or his drivers, other than to assign loads of freight to be hauled under its common carrier’s permit, the details of the actual transportation being under the control and supervision of Muck. In return for this, Muck was not paid wages, salary or commission, but a fixed percentage, without deductions, of the revenue derived from such shipments. Since Muck did engage in personal activity in connection with this transportation and apparently exercised a substantial degree of supervision over the work, the arrangement cannot be viewed as strictly and solely a lease or rental situation. It partakes also of elements of an independent contractor relationship. Restatement of the Law of Agency 2d, Section 2, pp. 12-15; 56 C.J.S. Master and Servant § 3(1); Dean v. Young, 396 S.W.2d 549 (Mo.1965); Jokisch v. Life and Casualty Insurance Co., 424 S.W.2d 111 (Mo.App.1968); Handley v. State Division of Employment Security, 387 S.W.2d 247 (Mo.App.1965). It is not necessary to the resolution of this case that we further distill or define the exact legal relationship of Muck-Kis-sick resulting in the existence of the fund here involved. It is sufficient for us to conclude that Muck under the facts and the law did not qualify for the statutory exemption either under the expressed and recorded intent of Congress or the terms of the act. He did not come within the descriptive ambit of a wage earner whose income and thus his employment (and the welfare of his family) would be jeopardized by burdensome garnishments or bankruptcy. Neither did his “compensation” depend upon “personal services” as used in the statute. We hold that Muck did not come within the terms of Section 1672, 15 U.S.C., the Consumers Protection Act, and therefore was not entitled to the exemption therein provided from garnishment. .The judgment of the trial court is supported by the law and the evidence, is not clearly erroneous, and is therefore affirmed. All concur. . The federal statute, 15 U.S.C., Section 1671 et seq., was adopted in 1968 (effective 1970). At that time, the Missouri statute, Section 525.030 RSMo 1969, V.A.M.S. provided that only 10% of any wages due to an “employee” who was the “head of a family” was subject to garishment. This statute was amended, however, to substantially conform with the federal law that the aggregate “earnings” of any individual, after deductions, subject to garnishment may not exceed 25%, and if such individual “is the head of a family and a resident of this state, ten pereentum, whichever is less.” Laws 1971, p. 465, S.B. 34, Sec. 1. This amendment also defines “earnings” as “compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus or otherwise.” We are not confronted in this case with any claim that Muck is “head of a family” and thus entitled to a 90% exemption. No such exemption is recognized under the federal law.

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Lloyd SEARCY, Plaintiff-Respondent, v. John C. NEAL, Defendant-Appellant. No. KCD 26328. Missouri Court of Appeals, Kansas City District. May 6, 1974. George T. O’Laughlin, Miller & O’Laughlin, P. C., Kansas City, for defendant-appellant. Thaine O. Blumer, Kenneth E. Arnold, Kansas City, for plaintiff-respondent. Before SHANGLER, P. J., and SWOF-FORD and WASSERSTROM, JJ. SHANGLER, Presiding Judge. The plaintiff Lloyd Searcy was injured when the right rear tires on the farm truck furnished him by his employer, defendant John C. Neal, Jr., blew out, causing the truck to overturn. The jury awarded the plaintiff a verdict of $17,500 and the defendant appeals. The defendant employed a small number of regular employees on his farm and additional employees — plaintiff among them— during planting and harvesting seasons. On October 31, 1965, plaintiff was hauling a load of milo to a grain elevator in a 1964 GMC truck owned by defendant. The truck was southbound on U.S. Highway 69 when without warning he heard an explosion — in his words, “the tire blowed”. With that, the weight of the load shifted to the right and rear of the truck, so that plaintiff lost control of the movement of the truck which then skidded 114 feet and overturned in a ditch. The plaintiff testified that he had been driving below the 55 mile per hour speed limit and that he had .not struck any foreign object on the highway. The officer who investigated the accident noted in his report that both of the right rear tires were blown out, but at the trial could not recall specifically what had led him to that conclusion. At the time of the occurrence the tires had had about 27,500 miles of wear. In the normal operation of the truck, the tires were often driven over rough and bumpy fields as well as on the highway. At the time of the accident, the truck was carrying nearly its load capacity of 24,000 to 27,000 pounds. An employee of the defendant, Omar Eller, testified that immediately before the October 31, 1965 accident the condition of the tires on the GMC truck were generally about the same: pretty well worn but not smooth, with some tread remaining. Eller and another employee, Sipes, testified that about 18 months before the accident one of the right rear dual tires of the GMC had been cut and went flat. The cut, about two inches deep, had pierced the cord. Eller testified that he was with another employee, Harris, when defendant was informed about the cut and that defendant then gave instruction that the tire be repaired at a local service station. The tire was vulcanized, replaced on the truck, and at the time of the accident was mounted on the outside rear dual wheel. The defendant Neal denied any knowledge that a tire had been cut that severely or that any truck tire had ever been vulcanized. He testified also that he regularly inspected his vehicles, including the tires, and that on the day of the accident he had personally serviced the GMC truck and tested the air pressure of the tires. He conceded, however, that a tire which had been damaged as described — a two-inch cut completely through the rubber and cord — would not safely haul substantial loads of grain and should be discarded rather than repaired. The tires were not given in evidence; however, numerous photographs of the tires, taken after the accident, were received. Some of them purported to show the generally worn and chipped condition of the tires before the accident and others depicted the condition of the two right rear tires after the accident. The defendant read into evidence a statement by a tire expert who had examined photographs of the two right rear tires. It was his opinion that vulcanization is a safe and accepted repair practice widely used for truck and passenger car tires. He testified that less than ½ of 1% of truck tire vulcanization fails when properly done and that even where improperly performed, the failure becomes evident within a few days. He testified also that one of the photographs disclosed a tire which had been vulcanized but that, in his opinion, the tire blew out in an area other than the vulcanized section. He concluded that the blowout was not the result of defective vulcanization. He expressed no comment about the second right rear tire which was also flat after the accident. At the close of all the evidence, defendant’s motion for directed verdict was denied. The court submitted plaintiff’s theory of recovery by his verdict-director, Instruction No. 2: Your verdict must be for the plaintiff if you believe: First, plaintiff was an employee of the defendant, and Second, defendant failed to provide reasonably safe tires on his truck, and Third, defendant knew or by using ordinary care should have known of such condition and that such condition was reasonably likely to cause substantial harm, and Fourth, defendant was thereby negligent, and Fifth, as a direct result of such negligence the plaintiff sustained damage, unless you believe plaintiff is not entitled to recovery by reason of instruction No. 4. The term “ordinary care” as used in this instruction means that degree of care that an ordinary careful and prudent person would use under the same or similar circumstances. The defendant claims a plethora of error, from instructions given and refused, to his salient contention that a jury issue on any ground of negligence pleaded against defendant was not established by substantial evidence. After having given effect only to that testimony which is favorable to the verdict [Catalano v. Kansas City, 475 S.W.2d 426, 427 (Mo.App.1971)], we determine that the submission upon which the verdict rests lacks support in proof and, accordingly, reverse and remand the cause. This disposition would normally dispense with the need to assess the claim of instruction error, but the fallibility of plaintiff’s proof and of his verdict-director Instruction No. 2 are so interrelated that a discussion of both points better clarifies the rationale of our decision. That is to say, defendant’s contention that there was no substantial evidence from which the jury could find that defendant was negligent in any particular pleaded or that such negligence proximately caused the upset of the truck cannot be evaluated without also determining whether the propositions in plaintiff’s verdict-director that Second, defendant failed to provide reasonably safe tires on his truck, and Third, defendant knew or by using ordinary care should have known of such condition and that such condition was reasonably likely to cause substantial harm sufficiently charge negligence and, if so, what conditions they submit as rendering the tires not reasonably safe. A party may have an instruction on an issue pleaded and supported by the evidence or which has been tried voluntarily as though pleaded. Talbert v. Chicago R. I. & P. Ry. Co., 321 Mo. 1080, 15 S.W. 2d 762, 764[3] (banc 1929). The petition of the plaintiff charged negligence in five particulars: 1. In knowingly furnishing a defective tire on said motor vehicle at the time of the blowout 2. Negligently repairing one of said blown-out tires by vulcanizing 3. Negligently placing a boot where said tire was defective 4. Allowing said motor vehicle to be loaded with grain when it was known that said tire was worn and defective 5. In failing to give warning to the plaintiff of the known defect It is evident from the context and grammatical progression of this recitation that the tire to which each specification of negligence alludes is the one which had been vulcanized. The plaintiff undertook to prove by evidence which came in without objection, however, that the other right rear tire had also blown out because of a worn and chipped condition which made the tire unsafe, and if such proof was successfully made, that issue must be treated as if raised by the pleadings. Biehle v. Frazier, 360 Mo. 1068, 232 S.W.2d 465, 466[1-3] (1950). Assignments of negligence not submitted to the jury are deemed abandoned. Branstetter v. Gerdeman, 364 Mo. 1230, 274 S.W.2d 240, 241 [1] (1955). It is evident that pleaded specifications of negligence three, four and five were not submitted by the proposition in plaintiff’s verdict-director that “defendant failed to provide reasonably safe tires on his truck”, and therefore are considered abandoned. Nor was there proof that the vulcanized tire was negligently repaired, so pleaded specification two was not submissible. What remains are pleaded specification one: that the tire which had been cut and later vulcanized was defective; and the issue tried by consent: that the other right rear tire was unsafe because worn and chipped. The questions remain: (1) Was there proof that the cut and vulcanized tire was defective and that the other tire was worn and chipped and thus unsafe and that such condition(s) proximately caused the upset of the truck and resultant injury? (2) If so, does the prosposition of the verdict-director : “defendant failed to provide reasonably safe tires on his truck” submit either or both of such negligent conditions? The constitutive elements of actionable negligence are: a duty on the part of the defendant to protect the plaintiff from injury, failure of the defendant to perform that duty, and injury to the plaintiff resulting from such failure. Dollar v. Ozark Engineering Co., 500 S.W.2d 727, 730[2] (Mo.App.1973); 65 C.J.S. Negligence § 2(1). In legal idiom, this formula is generally expressed as: negligence, causation, injury. The duty of an employer to his employee falls within this principle. Hightower v. Edwards, 445 S.W.2d 273, 275 [1, 2] (Mo. banc 1969). An employer is not an insurer of the safety of his employee, but he must exercise ordinary care to furnish safe appliances with which to work, and if failure to exercise such care causes injury to the employee, the employer commits actionable negligence. Hines v. Continental Baking Company, 334 S.W.2d 140, 146[2] (Mo.App.1960). The employer’s duty to exercise ordinary care applies also when the instrumentality of work is a motor vehicle. Anderson v. Asphalt Distributing Co., 55 S.W.2d 688, 692[3] (Mo.1932). Actual or constructive knowledge by the employer of the defective work appliance suffices to impose liability upon him. Marquardt v. Kansas City Southern Railway Co., 358 S.W.2d 49, 55 [7, 10] (Mo. banc 1962). It is the contention of appellant [citing Slagle v. Singer, 419 S.W.2d 9 (Mo.1967) and Brisette v. Milner Chevrolet Company, 479 S.W.2d 176 (Mo.App.1972)] that in the absence of proof of spe cific conditions of defect in the tires and that such conditions proximately caused the injury, no actionable negligence was shown: that as to the vulcanized tires, there was no evidence that the repaired area blew out or that it was more susceptible to failure than any other part of the tire; and as to the other tire, there was no proof that it was in a dangerous-condition. While appellant’s postulate of liability is sound, his assessment of the proof is not entirely valid. Although there was neither evidence of negligent repair of the vulcanized tire or that the tire had been weakened by that procedure, the admission of defendant that a tire so badly cut would not be safe for hauling heavy loads of grain, and for that reason, had he known of it [and there was evidence that he did know], he would have discarded the tire rather than have it repaired would allow a jury to find that the tire was defective and unsafe. Nor would the inference from such evidence that a tire in such condition would be unsafe and likely to blow out require expert testimony; rather, it is a matter within the common knowledge of any juror. Delair v. McAdoo, 324 Pa. 392, 188 A. 181, 183 [4] (1936); Elfeld v. Burkham Auto Renting Co., Inc., et al., 299 N.Y. 336, 87 N.E.2d 285, 286 [6] (1949). From the evidence it was permissible for the jury to have inferred that the tire blew out because of the defective condition. Although a worn and slick tire can be so defective as to be dangerous and thus support a finding of "negligence [Slagle v. Singer, supra}, the evidence concerning the condition of the non-vulcanized tire was not sufficient to support such a finding. There was testimony that the tire was worn and chipped on the sides, with tread remaining, but the extent of these conditions was not shown. That the tire was somewhat worn and with chipped sidewalls, however, are conditions that exist to some extent on practically every tire, and without more, do not prove a defective condition. Hobson v. Turner, 299 Ky. 324, 185 S.W.2d 550, 552[2] (Ky.App.1945). Thus, plaintiff proved two blowouts, the vulcanized tire and the non-vulcanized tire, but that only one blowout — the vulcanized tire — resulted from a defective condition for which defendant was responsible. The plaintiff failed to prove, however, which tire blew out first; and the evidence was clear that the first blowout precipitated the shift of truck load, the loss of control of the vehicle, and finally its upset. Nor is an inference of contemporaneous blowouts permissible. In the light of evidence that the truck did not run over any foreign objects and the failure of the proof to indicate any other reason for the non-vulcanized tire being blownout, the probability of the simultaneous blowout of a defective and non-defective tire is far too slight to be within the realm of common knowledge on which a jury could base such an inference. An inference of negligence is legitimate when the evidence points to that conclusion with reasonable certainty. Williams v. Cavender, 378 S.W.2d 537, 541[2-4] (Mo.1964). When the plaintiff’s own evidence shows that the injury may have resulted from one of two causes, for only one of which defendant would be liable, however, the burden falls on the plaintiff to show that the cause for which defendant was liable produced the resulting injury. Begley v. Connor, 361 S.W.2d 836, 839[1, 2] (Mo.1962); Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644, 647[6] (1933). In the absence of such proof, the evidence leaves the proximate cause of the injury to speculation and conjecture, and the plaintiff’s case must fail. State ex rel. City of St. Charles v. Haid, 325 Mo. 107, 28 S.W.2d 97, 102[5] (banc 1930). In the circumstances of this case, plaintiff would have acquitted this burden by proof to a reasonable certainty that either the non-vulcanized tire was also unsafe or that the vulcanized tire blew out first. We accord plaintiff the benefit of all favorable inferences and conclude that there was no substantial proof that the non-vulcanized tire was defective and that the proximate cause of the truck’s upset and plaintiff’s injury remains a matter of speculation. For these reasons, we sustain the contention of appellant that no submissible issue of actionable negligence was made by plaintiff. Accordingly, we reverse the judgment of the trial court. It appears, however, that the proof requisite to submission of his theory of recovery is available to plaintiff, so we remand the cause to allow him opportunity to develop such proof. Bauman v. Conrad, 342 S.W.2d 284, 289 (Mo.App.1961). Since there is likelihood that this cause will be retried, we consider the sufficiency of Instruction No. 2 by which plaintiff submitted his theory of recovery. The wording of this instruction follows MAI 24.01 which is designed for F.E.L.Á. cases and for that reason allows a general submission of negligence. The rationale of MAI is given in Ricketts v. Kansas City Stock Yards Co. of Maine, 484 S.W.2d 216, 221 [3] (Mo. banc 1972): A recovery under F.E.L.A. requires proof of only slight negligence and for that reason a general submission of negligence suffices. In ordinary negligence actions, on the other hand, the negligent conduct must be a substantial factor in bringing about the injury, and for that reason in such cases MAI requires a finding of the particular unsafe condition which caused the injury. In Ricketts the workman was on a scaffold chipping off a concrete gutter when part of it fell causing him injury. The workman, following MAI 24.01, submitted an instruction which directed a verdict for him if: First, defendant failed to provide reason-ably safe conditions for work, and Second, defendant was thereby negligent, and Third, such negligence directly resulted in whole or in part in injury to plaintiff. The defendant complained that the instruction was erroneous because it specified no condition as not being reasonably safe which could constitute the proximate cause of plaintiff’s injury. The Court agreed, 1. c. 222[4-6]: We also consider this instruction too broad and indefinite in submitting only failure to provide reasonably safe conditions of work but not' submitting any condition as not being reasonably safe. Our view is that M.A.I. requires such a submission in all usual negligence cases The Court concluded that, in accordance with his theory of recovery, the plaintiff’s verdict-director could have submitted a finding that the place or conditions of work were unsafe because the workman was required to stand below the gutter he was required to remove. On the principle of Ricketts we must hold that plaintiff’s Instruction No. 2 which submits propositions Second, defendant failed to provide reasonably safe tires on his truck, and Third, defendant knew or by using ordinary care should have known of such condition and that such condition was reasonably likely to cause substantial harm does not require a finding of a particular unsafe condition which could have been the proximate cause of the injury, and therefore was prejudicially erroneous. We conclude further that the vagueness of the submission is compounded by the inappo-siteness of proposition Second, which submits failure to provide reasonably safe tires, and proposition Third, which posits the unsafe tires as a condition, in view of plaintiff’s theory that the tires blew out as the result of disparate defective conditions. The fallibility of a negligence verdict-director which does not submit the finding of a particular dangerous condition as the proximate cause of the injury is given poignancy by cases, such as this, where the proof asserted by the plaintiff is of more than one unsafe condition. Should, in such cases, the proof not be successful as to every unsafe condition asserted, there is no way to test the validity of a verdict for the plaintiff. The judgment is reversed and remanded. All concur. . MAI 24.01 Verdict Directing — F.E.L.A.— Failure to Provide Safe Place to work. Your verdict must be for the plaintiff if you believe: Third, defendant failed to provide a. reasonably safe conditions for work, or b. reasonably safe appliances, or c. reasonably safe methods of work, or d. reasonably adequate help, and Fourth, defendant in any one or more of the respects submitted in paragraph Third was negligent, and Fifth, such negligence directly resulted in whole or in part in injury to plaintiff

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BLUE RIDGE BANK, Appellant, v. STATE BANKING BOARD, Respondent, Southeast State Bank, Intervenor. No. KCD 26346. Missouri Court of Appeals, Kansas City District. May 6, 1974. Ilus W. Davis, James E. Cooling, Dietrich, Davis, Burrell, Dicus & Rowlands, Kansas City, for appellant. Norman O. Sanders, Robert E. Gould, Sheridan, Sanders, Carr, White & Mason, Kansas City, for respondent. Before DIXON, C. J., and SHANGLER and WASSERSTROM, JJ. SHANGLER, Judge. The intervenor Southeast State Bank made application under § 362.325, RSMo 1969, V.A.M.S., to the Commissioner of Finance for relocation of its main banking house from 31st and Prospect to U.S. Highway 40 near the Harry Truman Sports Complex in Kansas City, Missouri. The Commissioner after due investigation issued a Certificate of Authority for relocation of the bank. The Blue Ridge Bank, Noland Road Bank, First National Bank of Independence and the Kansas City Chapter of the NAACP appealed the ruling of the Commissioner to the State Banking Board. NAACP did not proceed further. The Board conducted the hearing required by § 361.094, RSMo 1969, V.A.M. S. — at which extensive testimony, graphs, charts, maps, expert studies and statistical data were received — entered findings of fact and conclusions of law and affirmed the decision of the Commissioner. The Blue Ridge Bank, only, sought review in the circuit court of the determination of the Board, and alone appeals the judgment of the circuit court which has affirmed the decision of the Board. The Southeast State Bank, not designated as a party to the appeal, intervened by leave of the circuit court and is here as a respondent. The respondent Southeast State Bank was established at 3131 Prospect in Kansas City, Missouri, in 1918 and by the end of 1971 had developed capital surplus and undivided profits accounts amounting to approximately $2,500,000. There was evidence that the area in which Southeast is located is among the most densely populated in the city. It is an area, however, in steady decline. The high incidence of crime has been accompanied by marked deterioration of retail business, construction activity, population, income and homes. Thus, although there are 148,000 people in this area, only 50% of Southeast’s deposits are derived from the surrounding community. Analysis of the depositors shows that a large proportion of them have abandoned this neighborhood for areas of more growth and stability. Although Southeast has consistently shown a profit in the past, its rate of growth has been substantially less than that of most other banks in the metropolitan area. The area to which Southeast seeks to relocate is 4.2 miles east of its present site. The proposed location is 2.3 miles from appellant’s bank situated at the Blue Ridge Mall Shopping Center. Immediately south of the proposed site is the Harry Truman Sports Complex, while to the north and west is an extensive underground mining area. The general characteristic of the population of that suburban area was described as of medium and medium-high income, and the housing predominantly single-dwellings. There was evidence of recent construction of apartment complexes and expert prediction of significant development of multi-family units in the future. The voluminous record contains extensive evidence of the parties, much of it countervailing, concerning the demographic characteristics of the proposed relocation area. This evidence, largely statistical, is not susceptible of easy comparison because the experts for the respective parties, in making their studies and conclusions, defined the service area for the proposed location differently. Southeast’s expert worked from an arbitrarily chosen, irregularly shaped area determined, roughly, by major geographical features and existing transportation networks, while appellant Blue Ridge Bank, just as arbitrarily, adopted the area encompassed within a circle of 4000 yards radius. Southeast presented evidence of existing and projected population growth and economic expansion and development in the area. On the basis of this data and American Banking Association standards, their expert predicted a potential of $55,000,000 in time deposits, $13,500,000 in savings deposits, and $8,700,000 in demand deposits from residents of the relocation area which, if only modestly penetrated by Southeast, would ensure a successful operation. The experts concluded that this could be accomplished without taking present business from existing banks, and that the solvency of Blue Ridge Bank would not be endangered by the proposed relocation. The appellant Blue Ridge Bank questioned the underlying reliability of these projections and presented evidence to show that much of this deposit potential was already adequately served by appellant and other banks. The president of appellant Bank testified that five to six million dollars in deposits would find a bank in the area where Southeast sought to relocate more convenient and would be captured by the relocating bank. It was his judgment that the proposed relocation of Southeast would result in the reduced profitability, and eventual insolvency, of the Blue Ridge Bank’s operation. There was other expert testimony by appellant that Southeast would probably lose 50% of its present $16,206,000 in deposits by the proposed relocation, and such a depletion coupled with an increase in expenses would result in eventual insolvency. Another expert for the appellant testified, however, that although Blue Ridge Bank would suffer an erosion of profits as a result of the relocation, insolvency would not result. The relevant Statute [§ 362.325(7)] requires that if an existing bank wishes to change its location, the Commissioner of Finance shall examine Whether the convenience and needs of the new community wherein the bank desires to [rejlocate are such as to justify and warrant the opening of the bank therein and whether the probable volume of business at the new location is sufficient to insure and maintain the solvency of the bank and the solvency of the then existing banks and trust companies at the location, without endangering the safety of any bank or trust company in the locality as a place of deposit of public and private moneys. The Commissioner of Finance determined that these statutory requirements had been met and issued the relocation authority. On appeal, the State Banking Board found that the convenience and needs of the community at the proposed site warranted the relocation and that the move would not endanger the satefy or solvency of either the Southeast State Bank or of the other banks in the locality, and affirmed the authority for relocation granted by the Commissioner of Finance. The appellant Blue Ridge Bank asserts that these findings are clearly contrary to the overwhelming weight of the evidence and that the determination of the Board should be set aside. Appellant contends also that the Board erred in admitting certain evidence and that the removal of Southeast from an area where there was an admitted need for banking services was an abuse of discretion and in violation of constitutional standards. We notice first the point in appellant’s brief that: “The decision of the State Banking Board is in violation of the Due Process and Equal Protection Clauses of the Missouri and United States Constitution.” This point does not explicate how or in what manner the decision of the Board is in violation of constitutional principle or what right of appellant has been infringed, and therefore presents nothing for review. Hilke v. Firemen’s Retirement System of St. Louis, 441 S.W.2d 730, 733 [3, 4] (Mo.App.1969). This contention is briefly elaborated to assert that the relocation would deny banking services to citizens presently served by Southeast State Bank and therefore “deprive (s) [such citizens] rights granted to [them] by the Missouri and U.S. Constitutions”. The sum of the matter is, however, that appellant Bank has no standing to assert governmental action unconstitutional because it hurts a neighbor, rather, “a litigant himself must be hurt by the unconstitutional exercise of power before he may vex the judicial ear with complaints”. State ex rel. Crandall v. McIntosh, 205 Mo. 589, 103 S.W. 1078, 1082 [1] (banc 1907); State ex rel. Toliver v. Board of Education of City of St. Louis, 360 Mo. 671, 230 S.W.2d 724, 730 [8] (1950). We consider next the contention that inflammatory, prejudicial and hearsay evidence was received by the Board over the objection of appellant. This complaint is differentiated into two particulars: (1) the admission of a survey and map of crime in the Kansas City area generally and of the site of Southeast State Bank’s present location particularly and (2) the admission into evidence of the file of the Commissioner of Finance. The map and survey were hearsay and should not have been received. This evidence was presented by the president of respondent Southeast State Bank from an issue of the Kansas City Star. The witness had not prepared the exhibit, could not say who had, and was otherwise unable to establish its authenticity. For reasons which we expound fully later, the crime rate of the present location of respondent Bank was simply not a material factor to be considered in allowing relocation under § 362.325 and therefore any error in the admission of the exhibit was harmless. Farmers Loan & Trust Co. v. Southern Surety Co., 285 Mo. 621, 226 S.W. 926, 936 [13] (1920). Rulings on evi dence immaterial to the issues or not affecting the merits are not ground for reversal. Pyle v. Kansas City Light & Power Co., 246 S.W. 979, 987 [15] (Mo.App.1922) [reversed on other grounds, 291 Mo. 532, 237 S.W. 1021 (banc 1922)]. Nor is there any showing that this evidence entered into the Board’s determination that the statutory criteria for relocation had been met. The second evidentiary objection relates to the reception in evidence of the file of the Commissioner of Finance. The variegated contents of the file included pleadings, correspondence, the recommendation of the Bank Examiner, the application for relocation submitted by respondent Southeast Bank and materials in support of that request. Appellant objected that neither the Commissioner nor the Bank Examiner was available for cross-examination on the contents of the file. Although appellant’s objection impugns no particular content of the file, the point and argument on appeal are based on § 536.070, RSMo 1969, V.A.M.S. which governs the reception of evidence at contested hearings before administrative agencies, and we understand the complaint to be that as to this exhibit appellant was denied the right of cross-examination accorded by subsection [11] of that statute. The lack of focus to appellant’s complaint clouds assessment of what prejudice could have resulted from the reception of the exhibit as evidence. We consider the contents of the file: the pleadings were matters of judicial notice and thus, in any event, properly before the Board [§ 536.070(6)]; the charts, graphs and maps of the geographic features and banking economics of the proposed location were virtually all otherwise independently introduced at the hearing and cross-examined upom extensively by appellant; the correspondence — letters of transmittal and advice — were innocuous; the report of the Examiner to the Commissioner [except for his recommendations] was largely cumulative of other evidence received, and since on appeal from an order of the Commissioner the Banking Board is charged with an independent determination of the facts for its decision [§§ 361.094 and 536.090, RSMo 1969, V.A.M.S.], the recommendations of the Examiner are neither binding nor advisory. In State v. Burton, 334 S.W.2d 75 (Mo.1970), the Public Service Commission at the close of the hearing ordered its staff to make a further investigation and report, but the hearing was never re-opened for cross-examination of the staff’s findings. The court disapproved the procedure but could find no prejudice to the rights of appellant because [l.c. 88]: [T]he conclusion of the staff was confirmatory of the evidence adduced at the hearing, so the improperly considered report obviously was merely cumulative and did not affect the commission’s order, which is amply supported otherwise by substantial evidence contained in the record [citations omitted] as to which appellants had ample opportunity to cross-examine witnesses and test the accuracy of their evidence. For this same reason, on the facts and argument as appellant presents them, no prejudice appears. Evans v. Farmers Mutual Hail Ins. Co., 240 Mo.App. 748, 217 S.W.2d 705, 711 [9] (1949). Moreover, the Board’s order was amply supported by competent and substantial evidence otherwise adduced. Appellant contends also that the findings of the State Banking Board that the statutory prescriptions of § 362.325(7) for relocation had been met — in that the convenience and needs of the community at the proposed site justified the relocation of respondent Southeast State Bank and that the solvency of neither respondent, appellant, nor of the other banks in the area would be endangered — were clearly contrary to the overwhelming weight of the evidence. It is the sense of appellant’s argument that the convenience and needs of the community did not warrant the relocation because the area was already well served by existing banking facilities. This misconceives the rationale of the statute. The statutory components requiring inquiry by the Commissioner of Finance, upon a request for relocation, into the convenience and needs of the new community and of the solvency of the existing banks were added to the section (then § 7973, R.S.Mo 1939) in 1941. Only one decision since that amendment [Broadway National Bank v. Linwood State Bank, 456 S.W.2d 296 (Mo.1970)] has dealt with a proposed bank relocation under § 362.325(7), but the court was not required to, and did not, define the term “convenience and needs of the new community”. The only extensive consideration of that criterion has been in cases dealing with new bank charters under § 362.030(1). Under that section, when a charter for a new bank is requested, the Commissioner must inquire into the same convenience and solvency elements prescribed for relocation by § 362.325. The “convenience and needs” standard was added to both sections, in virtually identical language, by the Banking Act of 1941. This statutory component has been construed by this Court in a manner contrary to appellant’s contention in Suburban Bank of Kansas City v. Jackson County State Bank, 330 S.W.2d 183, 187 [2] (Mo.App.1959): The purpose [of the clause “convenience and needs of the community” in the banking statute] is not to prevent new banks from entering the field, but rather to insure the existence of a healthy banking system. This is true, even though existing banks have been rendering adequate service. This assessment of statutory purpose was adopted in Central Bank of Clayton v. State Banking Board, 509 S.W.2d 175 (Mo.App.1974). The opinion establishes authoritatively that the Banking Act of 1941, a sequel to the calamitous bank failures which marked the Great Depression, was enacted to control new entry into the existing banking business by requiring demonstration to a regulatory board that such a facility met a public need and would not impair the solvency of existing banks. The Banking Act of 1941 rejected both state monopoly or regulated private monopoly as cure for banking ills, but reaffirmed the competitive, free-enterprise theory of economy. The court then construed the term “convenience and needs” within this historical matrix, both as to the depository and credit functions of banks: [W]ith regard to the depository functions performed by banks, the objectives sought to be obtained by enactment of the “convenience and needs of the community” amendment to the bank chartering act are rather narrow. The plain purpose of the amendment is to protect the public against excessive competition in the local banking business and against imprudent banking business practices, where either of these conditions could lead to bank failures or unsafe banking. The goal is a healthy banking system. The amendment does not contemplate preventing new banks from entering a market because existing banks are rendering adequate service. Suburban Bank of Kansas City v. Jackson County State Bank, supra, [Mo.App.] 330 S.W.2d [183] at 187; Stokes, “Public Convenience and Advantage in Applications for New Banks and Branches,” 74 Banking Law Journal 921, 929 (1957). The primary protection afforded by the amendment is extended to the public, not to existing banks. (Second emphasis supplied) ⅞ [W]ith regard to lending and other credit functions of banks, the purpose of the “convenience and needs of the community” amendment of the bank chartering act is to promote competition in the public interest among banks, to favor bank entry which will stimulate that competition consonant with prudent banking practices and bank ^safety, and to discourage monopoly in the lending field. The protection afforded by the amendment in this regard is again extended to the public. The goal is to provide the public, where possible, with a reasonable number of local borrowing and credit alternatives so that competition for the public’s business, the greatest possible efficiency in the banking business, and economic benefit to the public will result. (Emphasis supplied) Thus, the legislative desideratum which “convenience and means” is meant to accomplish is the public protection and not the advantage of established banking houses, so that proof that adequate services are already available in the community does not foreclose a grant of authority for another bank to relocate there. The appellant contends also that the finding of the State Banking Board that the probable volume of business in the proposed location is, and will in the future be, sufficient to insure and maintain the solvency of the Southeast State Bank, appellant and other existing banks in the community [the other prerequisite for relocation under § 362.325(7)] was clearly contrary to the overwhelming weight of the evidence. The parties gave conflicting evidence on this issue, but a resume is neither necessary nor instructive. It is sufficient to say that respondent Southeast State Bank’s expert predicted substantial future residential and commercial growth in the relocation area, while it was appellant’s evidence that the solvency of Southeast Bank would depend upon deposits already in or destined for Blue Ridge Bank and other banks sited in the area. We are required to view the record in the light most favorable to the findings of the Board [St. Louis County v. State Tax Commission, 406 S.W.2d 644, 649 [5] (Mo. banc 1966)] and determine only whether the administrative action was unlawful, arbitrary, an abuse of discretion, or not supported by competent and substantial evidence upon the whole record. § 536.140, RSMo 1969, V.A.M.S.; Tom Boy, Inc. v. Quinn, 431 S.W.2d 221, 225 [1] (Mo. banc 1968). In view of the testimony of appellant’s own expert that its solvency would not be jeopardized by the relocation of Southeast State Bank into the service area, there can hardly be cavil at the finding of the State Banking Board that the statutory solvency requirement had been met. We have treated the conclusions of the Banking Board on “convenience and needs” and “solvency” as disparate findings in order to facilitate response to appellant’s contentions which raise them as independent grounds of error, but these statutory components are only artificially divisible. While, in the absolute sense, it may be irrelevant on the issue of convenience and needs of the new community for a bank relocation that adequate services are already available, if that intrusion threatens the solvency of the existing banks, and thus the public interest in banking safety, the relocation cannot be justified under § 362.325(7). Indeed, the requirement of the statute for a determination by the Commissioner “whether the probable volume of business at the new location is sufficient to insure and maintain the solvency [of the relocated and existing banks in the new community]” does not prescribe an independent finding, but only a consideration implicit in the convenience and needs finding. The import of the identical substantive language of § 362.-030(1) [for new bank charters] was explained in Marshfield Community Bank v. State Banking Board, 496 S.W.2d 17 (Mo.App.1973), l.c. 21, n.2: [I]t could hardly be said that a new bank would serve the convenience and needs of its prospective trade territory if its opening endangered the solvency of the area’s established banks or uselessly impeded their opportunities for expanded service — and especially so if its competitive activities were likely to be conducted at risk of its own solvency and hence at hazard to the public. It is the final contention of appellant that § 362.325(7), which allows relocation of a bank for the convenience and needs of the community, implies a corollary that relocation shall be denied a bank from a community whose convenience and needs justify its retention, and since it was undisputed that a bank was needed in the densely populated area presently served by Southeast State Bank, the denial of these services to residents of that area was arbitrary, capricious, unreasonable and an abuse of discretion by the Board. The assertion of the corollary is inconsistent with the very language of the statute. When a bank proposes relocation under § 362.-325(7), an investigation must be made of the convenience and needs of the relocation community and the effect of the move on bank solvency, [A]nd, if the commissioner, as a result of the examination, be not satisfied in the particulars mentioned or either of them, he may refuse to issue the certificate applied for. (Emphasis supplied) The interpolation of § 362.325(7) to imply the corollary would allow the Commissioner and the Board a discretion the statutory language does not permit nor imply by necessity and would create a right in the community of original location which, on the face of the statute, does not appear. Sayles v. Kansas City Structural Steel Co., 344 Mo. 756, 128 S.W.2d 1046, 1051 [7-9] (banc 1939). The judgment is affirmed. All concur. . This is the distance within which a then existing bank was permitted to establish a separate banking facility. § 362.107. [This section was repealed by Laws 1972, p. 973, to eliminate any requirement that the adjunct bank be in a designated proximity to the parent bank.] . Laws 1941, p. 670.

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2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

MISSOURI PUBLIC SERVICE CO., Respondent, v. CITY OF TRENTON and Trenton Municipal Utilities, Board of Public Works, Appellants. No. KCD 26546. Missouri Court of Appeals, Kansas City District. May 6, 1974. Eugene E. Andereck, Pickett, Andereck, Hauck & Sharp, Trenton, for appellants. Gary J. Brouillette, Judith J. Paxton, Kansas City, Mo., for respondent. Before PRITCHARD, P. J., and SWOFFORD and SOMERVILLE, JJ. SOMERVILLE, Judge. This injunction action was generated by a confrontation between Missouri Public Service Co., plaintiff below (hereinafter referred to as the company), and the City of Trenton and Trenton Municipal Utilities, Board of Public Works, defendants below (hereinafter collectively referred to as the city), concerning the right to provide electric service to two private residences located outside the corporate limits of the city. A brief recital of certain facts will suffice to illuminate the issues on appeal. For many years the city (a third class city) owned and operated an electric power plant and transmission system to provide its inhabitants with electric service. The city’s system incorporated a loop in its power grid. Sometime prior to June 14, 1972, the city constructed certain sewage lagoons outside its corporate limits under authority of Section 71.680, RSMo 1969. Also prior to June 14, 1972, the city was in the process of constructing an additional loop in its power grid outside its corporate limits, running to its sewage lagoons and then back into its corporate limits. This additional loop was to serve a dual purpose, (1) to add an additional loop to the city’s electric transmission system, and (2) to provide electric power for the operation of certain aeration equipment to be installed in the city’s sewage lagoons. It stands undisputed that the additional loop in the city’s power grid would give its electric transmission system “a more dependable source of energy, continuity of service and stable voltage throughout its system”. For many years the company, a privately owned public utility, possessed a certificate of convenience and necessity issued by the Public Service Commission to provide electric service to residences of the area beyond the city’s corporate limits traversed by the additional power loop being constructed by the city, and the company had been and was providing electric service to the residences located in the unincorporated area, including the two residences in question. The company learned that the city intended to provide electric service to the two mentioned residences outside its corporate limits if the owners of the two residences constructed transmission lines to the city’s additional loop where it ran alongside their property. Upon acquisition of such knowledge the company, on June 14, 1972, filed suit to enjoin the city from constructing the additional power loop beyond its city limits and from providing electric service to the two non-city residences. The trial court issued a temporary injunction restraining the city from furnishing electric service to the two residences in question, and, following an evidentiary hearing, issued a permanent injunction restraining the city from furnishing electric service to the two non-city residences, “from that part of [city’s] . . . electrical facilities constructed outside the city limits of the City of Trenton, Missouri. However, this restraining order shall not be deemed to prohibit such persons from taking electrical services from . . . [City] . . . from that part of [city’s] electrical facilities constructed within said city limits; nor be deemed to prohibit construction of electrical facilities by . [city] . . . outside the city limits of said city.” The city appealed from being so enjoined, asserting three grounds for appellate relief: (1) non-city residences may be served by a city owned and operated electric power plant and transmission system from a transmission line constructed by a city outside its city limits if (a) the transmission line constructed by the city beyond its corporate limits was constructed for a lawful purpose and (b) the owners of the non-city residences construct, at their expense, transmission lines to the transmission line constructed by the city; (2) the company had an adequate remedy at law, hence, it was not entitled to relief in equity; and (3) the company was not the real party in interest, since only a tax-paying resident of the city or the Attorney General have any legal standing to complain that the city was acting in excess of its authority. The three grounds asserted by the city will be inverted for disposition since (3) and (2) lend themselves to perfunctory disposition. In the recent case of Missouri Cities Water Company v. City of St. Peters, Missouri, 508 S.W.2d 15 (1974), the Missouri Court of Appeals, St. Louis District, ruled that a privately owned public utility possessed legal standing to come into a court of equity to enjoin threatened action by a municipally owned utility to illegally extend its utility service beyond its corporate limits into an area being lawfully served by the complaining privately owned public utility. Ground (1) urged by the city is a different matter and presents a somewhat vexing question. A recapitulation of certain facts heretofore delineated points up the vexatious nature of the question. There was certainly sufficient evidence for the trial court to find that the city in constructing the additional loop outside its corporate limits was motivated by two primary reasons, namely, (1) to add another loop to its electric transmission system, and (2) to provide power to operate aerating equipment at its sewage lagoons located beyond its city limits. The city relies on Section 71.680, RSMo 1969, V.A.M.S., for authority to construct the additional loop beyond its city limits to its sewage lagoons. Section 71.680, supra, empowers a third class city to dispose of waste beyond its corporate limits and to “acquire . . . within or without the corporate limits of such cities ... all equipment necessary or expedient for use in . disposition of municipal waste; . . . ” and to “acquire . . . purification plants' or sewage disposal plants for the purification of all sewage accumulating in such cities.” It should be specifically noted that this court is not required to determine whether the city was lawfully authorized by Section 71.680, supra, to construct the additional loop beyond its corporate limits, since the company chose not to appeal that portion of the judgment below which, in effect, held that construction of the additional loop by the city beyond its corporate limits was lawful. Thus ground (1) has been narrowed, since determination of whether the city was lawfully empowered to construct the additional loop beyond its corporate limits has been eliminated from consideration. Certain additional prefatory matters appear indicated prior to reaching the merits of ground (1) asserted by the city. The company contends that if the city has any surplus power to sell to non-residents of the city, “any non-resident desiring to purchase power must do so from that part of” the city’s “electrical facilities constructed within the city limits”. It should also be noted that there is a unanimity of agreement between the city and the company that, under any circumstances, the city can sell only surplus power. In this connection, see Speas v. Kansas City, 329 Mo. 184, 44 S.W.2d 108 (1931) and Taylor v. Dimmitt, 336 Mo. 330, 78 S.W.2d 841 (1934). Section 91.010, RSMo 1969, V.A.M.S.,' empowers “any city ... in this state . to erect, purchase, acquire, maintain and operate . . . power plants” and “electric light plants . . . and to supply the inhabitants of such cities with . . . light and power therefrom”. Section 91.020, RSMo 1969, V.A.M.S., empowers “[a]ny city in this state, which owns and operates any electric light or power plant . to, supply electric current from its light or power plant to other municipal corporations for their use and the use of their inhabitants, and also to persons and private corporations for use beyond the corporate limits of such city . . .”. Section 91.-030, RSMO 1969, V.A.M.S., empowers “[a]ny city . . . having authority to maintain and operate an electric light and power plant” to “procure electric current for that purpose from any other city, owning and operating such plant . . . ”. Section 91.040, RSMo 1969, V.A.M.S., empowers “[a]ny city . . . which any city of this state, having an electric light or power plant, may agree to supply with electric current under the provisions of sections 91.020 and 91.030 ... to erect poles . . . wires and other fixtures . . . across or under any of the public roads, streets and water and to put in and maintain and operate all apparatus and devices necessary for and in conducting said current from the city agreeing to supply the same into its own limits in, upon, over and through any territory of this state outside, as well as within, the limits of said city, . . . ”. Authority for the city to sell surplus power to non-resident consumers lies in Section 91.-020, supra; but Taylor v. Dimmitt, supra, holds, as hereinafter demonstrated, that Sections 91.010, 91.030 and 91.040 circumscribe the mode of doing so. Taylor v. Dimmitt, supra, represents a careful and exhaustive analysis of the above statutes and both the city and company cite and primarily rely on Taylor as authority for their respective positions. Therefore, it behooves this court to carefully analyze Taylor. The plaintiffs in Taylor were resident taxpayers of the City of Shelbina, Missouri, who filed suit to enjoin the mayor and aldermen of the City of Shelbina from erecting or operating a proposed electric transmission line to sell surplus electric power from Shelbina’s municipally owned and operated electric plant to the inhabitants of the unincorporated village of Lakenan, Missouri, located some five miles east of the corporate limits of Shelbina, and to persons residing in the area between Lakenan and Shelbina along the route of the proposed electric transmission line. The trial court granted the plaintiffs in Taylor the relief requested and the Supreme Court affirmed the judgment of the trial court. In doing so the court addressed Section 7641, RSMo 1929 (now Section 91.010, supra), originally enacted by Laws 1891, and at 1. c. 842 [Taylor v. Dimmitt, 78 S.W.2d 841] said: “This section is in accord with the primary objects to be accomplished by a municipal corporation; that is, to promote the welfare and public interest of its inhabitants, and not the promotion of the interests of those residing outside its corporate boundaries.” The court then noted (1. c. 842) that prior to 1911, at which time Sections 7642, 7643, and 7644, RSMo 1929 [now, respectively, Sections 91.020, 91.030, and 91.-040, supra] were enacted [Laws 1911, p. 351], cities could own and operate electric light and power plants for but a singular purpose, that of servicing their own inhabitants. In tracing the legislative history of Sections 7642, 7643, and 7644, RSMo 1929 [now, respectively, Sections 91.020, 91.030, and 91.040, supra] the court emphasized that the referred to sections, when enacted, were constituent parts of a single act amending Article XXIII, Chapter 84 RSMo 1909 [which, among other sections, contained Section 7641, RSMo 1929 (now Section 91.010, supra)] and were, therefore, to be construed together. The court stressed (1. c. 843) that cities in supplying electric service to consumers beyond their corporate limits “perform no municipal function, but depart from the primary objects for which they have existence, and enter a field of private business”. Also (1. c. 843) the court reaffirmed the following classic principle of law relative to the power possessed by municipal corporations: “ ‘It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: (1) Those granted in express words; (2) those necessarily or fairly implied in, or incident to, the powers expressly granted; (3) those essential to the declared objects and purposes of the corporation — not simply convenient, but indispensable. Any fair, reasonable doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied.’ St. Louis v. Kaime, 180 Mo. loc. cit. 322, 79 S.W. 140, 143 (quoting Dillon, Municipal Corp. vol. 1 [4th Ed.] p. 145) ; State v. Butler, 178 Mo. 272, 77 S.W. 560; St. Louis v. Dreisoerner, 243 Mo. 217, 147 S.W. 998, 41 L.R.A.(N.S.) 177; St. Louis v. King, 226 Mo. 334, 126 S.W. 495, 27 L.R.A.(N.S.) 608, 136 Am. St.Rep. 643; Maryville v. Farmers’ Trust Co., 226 Mo.App. 641, 45 S.W.2d 103.” After carefully examining the referenced statutory enactments in light of established principles of statutory construction, and having weighed numerous authorities from other jurisdictions, the, court in Taylor concluded, particularly in view of the above quoted principle, that the statutory provisions in question did not authorize a city to construct, maintain, and operate an electric transmission line beyond its city limits for the purpose of selling surplus electric power to non-resident individual consumers, since it lacked authority to do so with respect to selling surplus electric power to other municipalities. More precisely, the court in Taylor, 1. c. 845, stated, “[t]he apparent logical conclusion to be drawn from the legislation [now sections 91.010, 91.020, 91.030 and 91.040, supra] is that the Legislature knowingly and purposely withheld from the city owning the plant the authority to construct, maintain, and operate an electric transmission line outside its corporate limits for the purposes within the act”. (Emphasis added.) The city seeks to escape the “apparent logical conclusion” drawn in Taylor on the basis of a bifurcated argument. First, that Taylor should be construed as holding that a municipality is only prohibited from constructing an electric transmission line beyond its corporate limits for the purpose of selling surplus power to nonresident consumers, but is not prohibited from selling surplus power to them from an electric transmission line maintained and operated by it beyond its corporate limits if the electric transmission line was constructed for other lawful purposes, and, second, “[w]hat would be the rationale of the useless act of requiring” non-resident consumers “to build to the line to the city limits rather than to build to the line at its closest point in the loop.” Neither “escape” urged by the city from the “apparent logical conclusion” drawn in Taylor is convincing. As to the first branch of the city’s bifurcated argument, this court believes that Taylor means exactly what it says — “ . . . that the Legislature knowingly and purposely withheld . . . from the city owning the plant . . . the authority to construct, maintain, and operate an electric transmission line outside its corporate limits for the purposes within the act.” (Emphasis added.) Maintenance and operation of an electric transmission line by a city outside its corporate limits to serve non-resident consumers, as well as construction of an electric transmission line beyond its corporate limits for such purposes, constitute three separate and distinct powers, none of which are organically possessed by a city, and Sections 91.010, 91.020, 91.030, 91.-040, supra, do not expressly or impliedly invest a city with any of such powers. Taylor v. Dimmitt, supra. At first blush the second branch of the city’s bifurcated argument for “escape” from the “apparent logical conclusion” drawn in Taylor appears to have substance and to constitute a syllogistic and practical argument. In other words, do the practical aspects presented by this case, in view of the particular facts involved, outweigh what otherwise might be construed as a dogmatic application of the “apparent logical conclusion” drawn in Taylor? This court concludes that they do not. The General Assembly of the State of Missouri many years ago, by enactment of the Public Service Commission Law (now Chapter 386 RSMo 1969, V.A. M.S.), wisely concluded that the public interest would best be served by regulating public utilities. As stated in State ex rel. Electric Co. v. Atkinson, 275 Mo. 325, 204 S.W. 897, 899 (Mo.1918), “[t]he act establishing the Public Service Commission . is indicative of a policy designed, in every proper case, to substitute regulated monopoly for destructive competition. The spirit of this policy is the protection of the public.” Territorial access between competing utilities is one subject of regulation. However, the company tacitly concedes that municipally owned and operated electric utilities are not subject to regulation by the Public Service Commission in this respect. In this connection, see State ex rel. City of Sikeston v. Public Service Commission of Missouri, 336 Mo. 985, 82 S.W.2d 105 (Mo.1935). On the other hand, as demonstrated by Taylor, municipally owned electric utilities have only such extraterritorial powers as the General Assembly deems fit to give them, and, in this sense, are regulated by the General Assembly. Since the purpose of regulating utilities is to “substitute regulated monopoly for destructive competition”, thereby serving the public interest, the underlying rationale justifying regulation by an authoritative body (by the General Assembly in the instance of municipally owned electric utilities) would seem to apply with equal vigor to municipally owned and operated electric utilities. To recognize the second branch of the city’s bifurcated argument as a valid “escape” from the “apparent logical conclusion” drawn in Taylor would eviscerate the public interest intended to be served by regulating utilities. Granted, competition in the instant case appears minimal and has by no means reached the threshold of “destructive competition”. But should this court circumvent the well reasoned conclusion drawn in Taylor simply because the competition is minimal? Even though the competition is minimal, the theory underlying regulation of utilities would be breached to some extent to do so. The theory underlying regulation of utilities should be just as viable in the instance here, where minimal competition is involved, as if the city were threatening to serve countless numbers of non-resident consumers. Protection of the public, wherein utility regulation is rooted, appears best served if regulation is effectively imposed when the type of competition subject to control is at a minimal state, rather than delaying its imposition until such has reached a state of “destructive competition”. Judgment affirmed. All concur.

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Harry F. RUSSELL, Deceased et al., Appellants, v. SOUTHWEST GREASE AND OIL COMPANY, Employer, and Aetna Casualty & Surety Company, Insurer, Respondents. No. 26529. Missouri Court of Appeals, Kansas City District. May 6, 1974. John P. Ryan, Jr., Kansas City, for appellants. James F. Stigall, Raytown, for respondents. Before DIXON, C. J., and SHANGLER and WASSERSTROM, JJ. WASSERSTROM, Judge. On a claim for Workmen’s Compensation benefits by the widow and daughter of a deceased employee, the referee denied compensation. His decision was affirmed on review by the Industrial Commission, whose decision in turn was affirmed by the Circuit Court. The claimants again appeal to this court. At approximately 3:00 p. m. on February 6, 1969, Harry F. Russell, the deceased employee, delivered six 55-gallon drums of undercoating to the Triad Vault Company. Each of these drums weighed approximately 429 pounds and was being transported in an open bed truck fitted with a hydraulic lift at the rear. Russell backed the truck into the Triad building through large service doors. Then he had a brief conversation with John Heflin, a Triad employee, after which Russell moved three of the barrels to the lift at the rear of the truck and lowered the barrels by use of the lift to the floor. Heflin observed this operation and saw nothing unusual about the way Russell moved the barrels. At this point Heflin went to the restroom to wash his hands. When he returned the second group of three barrels had been moved to the lift at the back of the truck, the lift was back in the up position, but he did not see Russell. After calling and commencing a search, Heflin discovered Russell just outside the large service doors through which the truck had been driven into the premises. Heflin testified that Russell’s face was blue, his eyes were bugged out and he could hear him gargling and gasping for breath. An ambulance was called which took Russell to the hospital where he was pronounced dead on arrival. No one saw Russell from the time he moved the first three drums to the back of the truck until the time that he was found gasping on the ground by Heflin. Russell was unable to respond to questions and made no statement to anyone from the time Heflin found him until his death. Claimants introduced the testimony of Dr. Edward Robert Nigro, Russell’s personal physician. Dr. Nigro testified that he and his associates had been treating Russell for arteriosclerosis since 1952 and that EKGs taken over the years had shown posterior coronary insufficiency with lateral involvement. Although no post mortem was performed and although Dr. Nigro did not examine the body following death, he signed the death certificate showing the cause of death to be “coronary thrombosis-arteriosclerotic heart disease.” There was no evidence offered to show any traumatic injury, other than a statement by the widow that approximately 24 hours after the death she observed a darkness on one side of deceased’s face in the nature of a bruise. The record shows that the work being done by Russell on the afternoon of his death was the same usual type of work which he had performed for the previous five or six years. It was customary for him to move barrels of the same type and weight and unload them from his truck without the assistance of any helper, and six barrels constituted a normal delivery. On these facts the Industrial Commission found that the death was not caused by accident so as to be compensable, stating in this respect as follows: “The Commission finds from all of the evidence that on February 6, 1969, and for a number of years prior thereto, the employee had been suffering from arter-iosclerotic heart disease and that on said date he was performing his normal duties and that his death was not caused by accident or unusual or abnormal strain but was caused by coronary thrombosis precipitated by arrythmia as the result of his normal strenuous work and that the presumption that the employee’s death arose out of and in the course of his employment as the result of accident or unusual strain was rebutted by the medical evidence.” Claimants challenge that decision by the following two points: 1) that claimants are entitled to the benefit of a presumption that the death was caused by accident in the course and arising out of employment, which presumption stands unrebutted; and 2) that the Commission erred in following the rule that a heart attack is not “accidental” unless it be the result of unusual exertion and strain. I. The Missouri Workmen’s Compensation Act, § 287.120, RSMo 1969, V.A.M.S., provides compensation for death of an employee only if “by accident arising out of and in the course of his employment.” The Commission held that the claimants had not met their burden of proof of showing these required elements, especially that of “accident”. Claimants strenuously oppose that conclusion, arguing that having shown that Russell died under unexplained circumstances on the premises where he was employed and during the hours of employment, a presumption arises that the death occurred in the course of and in consequence of his employment. As stated in appellants’ reply brief, this contention is “the cornerstone of the appellant’s (sic) theory of recovery in this case.” A. There are a number of decisions in this state which recognize the theoretical validity of the presumption stated, the leading case being Mershon v. Missouri Public Service Corp., 359 Mo. 257, 221 S.W.2d 165 (1949), although strangely enough no Missouri case has been cited or found actually permitting recovery by application of this presumption. However, this presumption does not extend to a showing of the element of “accident”. In the many Missouri cases discussing the presumption, the element of accident either plainly appeared or was readily inferable from the surrounding circumstances, and the only debated issue was whether the injury “arose out of and in the course of employment”. There is sound logic in presuming that an unexplained injury or death which occurs on the premises and during the time of employment has a causal connection with the employment activities. Work-relatedness naturally follows as a rebuttable presumption from those facts. That is far different, however, from taking the further step of inferring that such an unexplained injury or death occurred by reason of accident rather than from a natural cause. With respect to this latter matter, there is no logical basis for an inference that the unwitnessed, unexplained death resulted from “an unexpected or unforeseen event happening suddenly and violently,” as the word “accident” is defined in § 287.020, RSMo 1969, V.A.M.S. While there is no Missouri case drawing this distinction, there are decisions from other jurisdictions which are persuasive in that direction. Thus in Maas v. Otis Elevator Co., 140 Pa.Super. 33, 12 A. 814, 816 (1940) the deceased employee died of an unwitnessed heart attack after climbing a ladder to the roof in order to inspect an elevator. This activity fell within the employee’s usual and ordinary routine. The court held that there was no presumption of “accident” and that it was therefore error to award compensation to the widow: “The mere fact that this employee was stricken while in the course of his employment, instead of at his home, or on his way to work, raises no presumption in favor of the claimant. Before she is entitled to an award, the evidence submitted in her behalf, must show either directly or circumstantially, that her husband sustained an accident, within the meaning of the statute.” So also in Hrynkiw v. Davis & Lyon, 24 App.Div.2d 1056, 265 N.Y.S.2d 321, aff’d, 21 N.Y.2d 681, 234 N.E.2d 453 (1967), a painter was found dead on the premises where he had been working. It was held that- a presumption cannot be used as a substitute for evidence of accident and that there could be no recovery because of a lack of evidence of any unusual exertion. Likewise, in York v. State Workmen’s Ins. Fund, 131 Pa.Super. 496, 200 A. 230 (1938), a coal miner was found dead just outside the mine alongside two coal cars which had just been dumped, with a third car half emptied. Medical testimony was that death resulted from bursting of a coronary artery. Although the court sustained the granting of compensation on the basis that the inferences drawn by the Compensation Board from all the circumstances were permissible, the court made this pertinent observation: “We readily recognize that a presumption of an accidental death is not raised by simply showing a collapse of an employee while at his work. There must be affirmative proof of an accident . . . ” In a jurisdiction following the lenient rule under which there may be a finding of “accident” even without any unusual strain, there has been a refusal to apply the “found dead” presumption without some independent evidence showing an accident in the usual traumatic sense. In this respect, Wilsey v. Reisinger, 76 N.J. Super. 20, 183 A.2d 717, 1.c. 721 (1962) holds as follows: “We are mindful of the rule, that where an employee is found dead from accident and there is no evidence offered as to just how the death occurred the court will presume that the accident causing the death was one that arose out of and in the course of the employment, [citing cases] However, we find that in each case in which this rule has been invoked the evidence established the occurrence of an ‘accident’ in the ordinary traumatic sense of the word, as distinguished from accident in the special sense that a work-induced heart attack is, in and of itself, an accident within the meaning of the Workmen’s Compensation Act. [citing cases] “The rationale of the rule is 'that where death ensues from traumatic injury at a time and place where the employee might reasonably be expected to be in the course of his employment, a presumption arises, or an inference may be drawn that the occurrence arose out of his employment. See Larson, Workmen’s Compensation Law, § 10.32 (1952). If the unique concept of heart attack’s constituting an ‘accident,’ were included within the ambit of this principle, recovery in a heart death case would be permitted upon a mere showing that an un-witnessed fatal heart attack was suffered by an employee on his employer’s premises during the hours of his employment. This is not the law of this State.” We hold that mere proof of an employee being found dead at his place of employment and during the hours of employment does not give rise to any presumption that he suffered an accident. It is incumbent upon the claimant to offer affirmative evidence to carry his burden of proof on that element of the case. B. However, the inapplicability of the presumption upon which claimants rely does not result solely from the failure of claimants to make affirmative proof of an accident. Additionally, the decision of the Industrial Commission in this case must be approved on the well recognized principle that when sufficient actual facts are shown by evidence, then the case must be decided upon those facts and inferences fairly to be drawn from them, and that the “found dead” presumption has no part to play. A leading case establishing this principle is Kelley v. Sohio Chemical Co., 392 S.W. 2d 255, 256 (Mo. banc 1965). In that case, after referring to the presumption and Missouri cases with reference thereto, the court held: “The cases fairly indicate that if there is evidence of occurrences, circumstances or physical condition which show, directly or by inferences, how the injury occurred, then the matter should be and will be decided on that evidence; and that if a presumption be deemed to have arisen in such instances, it disappears, being merely a procedural invention in the first place.” A particularly good statement of this concept appears in Jackson v. McDonnell Aircraft Corp., 426 S.W.2d 669, 676 (Mo.App.1968) which holds in part: “We have grave doubts that the presumption arose in this case, and that it must invariably arise in every case, merely because, without any consideration of the surrounding facts and circumstances, a claimant’s evidence shows that during his working hours he was found injured at a place where his duties required him to be. * * * We are of the opinion that the presumption may arise but that in determining in the first instance whether it does consideration must be given to all of the relevant evidence which is developed and is binding upon claimant, including such evidence as character of the work assigned to him, the machinery, tools and appliances employed in the performance of his duties, the manner in which his work is customarily performed, the condition of the prior health of the employee, the nature of his injury, and similar pertinent facts and circumstances.” (emphasis in the original) See also Wheaton v. The Reiser Co., 419 S.W.2d 497 (Mo.App.1967) and Stamps v. Century Electric Co., 225 S.W.2d 493 (Mo.App.1950). The facts shown by the record here bring this case within the application of the foregoing rule and exclude operation of the presumption. It stands agreed that Russell had a medical history of heart trouble for seventeen years. His doctor testified that his medical problem was progressive, and it must be noted that at the time of his death Russell was 54 years old and weighed between 225 and 230 pounds. His personal physician, who was intimately acquainted with his condition, gave as the cause of death on the death certificate “Coronary thrombosis-arteriosclerotic heart disease.” Even more importantly, Dr. Nigro testified that the same activity which might have been innocuous previously could in the normal course of development of the heart disease become fatal. In this respect Dr. Nigro testified: “I think in all these people with arter-iosclerotic heart disease, we never know where their tolerance is going to end. One day what is normal for them may not be normal the next day. So he may be doing his normal work today, but maybe to him, that normal work is not normal for him and precipitates or causes an attack. * * * I am trying to say even if he was doing his normal work, his condition could have changed. That what was normal for him at one time was not normal for him that time he did the work.” Furthermore, Dr. Nigro testified that in Russell’s condition he was susceptible to a sudden heart attack, that such attacks are not always precipitated by heavy work, and that it is possible that Russell died as a result of natural causes. Supplementing that medical testimony, other testimony shows that the work being done by Russell on the afternoon of his death was simply his usual, ordinary routine type of work. The barrels were no bigger or different than those which he had been delivering for the past 5 or 6 years. The unloading by him from the truck by the hydraulic lift was no different than what he had previously done. Still further, there is no showing whatsoever of any slip, fall or other similar untoward event. If any presumption favorable to the claimants ever existed in this case, that presumption crept in only momentarily and disappeared upon the further testimony offered by them before the conclusion of their own case. The evidence is ample to call for a decision upon the facts adduced, as held in the Kelley, Jackson, Wheaton and Stamps cases. Upon final analysis, the evidence discloses three possible causes of death, namely (1) normal progress of the heart disease independent of any employment connection, (2) aggravation by normal strain, or (3) aggravation by unusual strain. Only for the last of those three causes would the employer have any liability for the payment of compensation. Where, as here, the evidence shows more than one possible cause of death and of which the employer could be held liable for only one, the claimant has failed to carry the necessary burden of proof and therefore fails in the claim for compensa-Where, as here, the evidence shows more than one possible cause of death and of which the employer could be held liable for only one, the claimant has failed to carry the necessary burden of proof and therefore fails in the claim for compensa- “It is a general rule that where the evidence in behalf of the claimants indicates two reasonably possible causes of death, for one of which the employer is not liable, the claimant has not sustained his burden of proof, and the presumption that the accident, if any, arose out of and in the course of employment will not apply from the mere fact that the employee was found dead at his place of work.” Closely in point is Duff v. St. Louis Mining & Milling Corp., 363 Mo. 944, 255 S.W.2d 792, 794 (1953) where the employee fell from his place of work to the ground 15 to 18 feet below. The fall was unwitnessed, but medical evidence showed that the employee suffered a heart ailment. An award for compensation was reversed by the Supreme Court on the ground that the claimant had not proved that the injury resulted from an accident arising out of and in the course of employment: “However, these facts (the place where Duff was last seen, his duties, the thud, where he was found and his condition) are not sufficient to show more than that his death resulted from one or the other of two causes, for one of which but not the other, the employer would be liable. Therefore, we must hold as we did in the Seabaugh case (upon very similar facts) that on the whole record, see Sec. 22, art. V, Const., claimants’ proof was insufficient to show that Duff’s death resulted from a cause for which his employer would be liable, [citing cases]” It was for the Commission to weigh the evidence and draw the pertinent inferences. If its decision is “supported by competent and substantial evidence upon the whole record” and is not “clearly contrary to the overwhelming weight of the evidence,” the Commission’s award should be affirmed. Wood v. Wagner Electric Corp., 355 Mo. 670, 197 S.W.2d 647 (banc 1946); Saale v. Alton Brick Co., 508 S.W.2d 243 (Mo.App.1974). The best that can be said for the claimants’ proof is that it made a submissible case which would have supported a favorable award if the Commission had chosen to draw inferences favorable to claimants. However, inferences contrary to the claimants are at least equally tenable, so that the Commission’s finding against claimants is binding upon the courts. Oswald v. Caradine Hat Co., 109 S.W.2d 893 (Mo.App.1937). II. As an alternative proposition, claimants argue that the Commission erred in following the rule that in order for a heart attack to be compensable, the attack must have resulted from an unusual strain not customarily exerted by the employee in his normal work. Claimants rely heavily upon the writings of Professor Larson, and they cite cases from other jurisdictions representing what is said to be the majority rule permitting recovery of compensation even in situations where the employee has not been subjected to unusual strain. The same arguments and the same authorities were presented to this court and were by this court rejected in Herbert v. Sharp Brothers Contracting Co., 467 S. W.2d 105 (Mo.App.1971), on the basis of authoritative Missouri Supreme Court decisions to the contrary. Since the decision in Herbert, the Missouri Supreme Court in Snuggs v. Steel Haulers, Inc., 501 S.W.2d 481, 1.c. 485 (Mo. banc 1973) has reinterat-ed the Missouri rule which requires unusual strain for the showing of an accident. Therefore, now with even more reason than was true when Herbert was decided, this court must adhere to the unusual strain rule. The judgment is affirmed. All concur.

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Fuller CHRISTIAN, Appellant, v. STATE of Missouri, Respondent. No. KCD26462. Missouri Court of Appeals, Kansas City District. May 6, 1974. Sloan R. Wilson, Kansas City, for appellant. John C. Danforth, Atty. Gen., Dan Summers, Asst. Atty. Gen., Jefferson City, for respondent. Before DIXON, C. J., and SHANGLER and WASSERSTROM, JJ. DIXON, Chief Judge. This is an appeal by movant from a denial in the trial court of movant’s motion under Rule 27.26, V.A.M.R., for relief from a sentence of imprisonment for fifty years imposed on his plea of guilty to second degree murder. We affirm. On January 7, 1970, movant was charged with first degree murder for the killing of Michael Iser during the armed robbery of a Safeway grocery store at 1215 Westport Road, Kansas City, Missouri, on November 18, 1969. Movant was arrested on November 28, 1969. He was fifteen years old at the time. On November 29, 1969, movant confessed to the armed robbery and the striking of Michael Iser with his gun. Movant made the confession while he was being detained at the juvenile detention hall. He confessed in the presence of two police detectives and a juvenile officer. Movant was certified to stand trial as an adult after a juvenile court certification hearing on December 18, 1969. Movant was represented by counsel at the certification hearing, the arraignment, and the plea hearing. Movant’s points raised in his appellate brief are that (1) at the time his guilty plea was entered, the juvenile court retained jurisdiction over him, (2) movant’s plea was not voluntarily and understandingly entered because movant believed a confession he made at the juvenile detention center was admissible against him in the trial court and movant was misled by hopes which proved to be false and ill-founded as held out by his attorney; (3) movant was denied the effective assistance of counsel who failed to advise movant properly on the law regarding the admissibility of his confession and who misled and induced movant to plead guilty by the holding out of hopes which proved false and ill-founded. Movant’s claim that the juvenile court retained jurisdiction over him at the time he entered his plea approaches frivolity since the court specifically released the jurisdiction of all juvenile charges in the following specific language: “WHEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that the petition filed in this cause be and the same is hereby dismissed. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Cause No. 42280 be terminated and that said child be released and discharged from the jurisdiction of this court.” Movant’s second point on appeal concerns the voluntariness and understanding with which he entered his guilty plea. First, movant claims that because, at the time he entered his guilty plea, he believed the confession he had made at the juvenile detention center was admissible against him in a trial, he, therefore, did not voluntarily and understandingly enter his guilty plea. The only evidence in the transcript that the principal factor in causing movant to plead guilty was that he believed the confession could be used against him at the trial is that of the movant’s own testimony. His attorney testified that he did not advise movant to plead guilty on the basis of his confession alone. Movant’s father did not testify, or indicate that, the principal factor in causing movant to plead guilty was that movant believed the confession admissible against him. Movant’s father was present at, and met with movant prior to, the plea hearing. In determining the voluntariness and understanding with which a guilty plea is entered, the admissibility of a prior confession, and the effect that confession has on defendant’s guilty plea, is only one factor among many that should be considered. Redus v. State, 470 S.W.2d 539, 540 (Mo.1971) held that “a confession which might not have been admissible in the event of trial does not, in and of itself, invalidate a subsequent plea of guilty; but, it is simply a factor to be considered along with other facts and circumstances in determining whether the plea of guilty was understandingly and voluntarily entered.” Appellant’s belief concerning the admissibility of his confession is not, alone, sufficient to invalidate his guilty plea. The only other factor movant asserts as likewise limiting the voluntariness and understanding with which he entered his plea is that hopes were held out to movant by his attorney that proved to he false and ill-founded. Despite appellant’s assertions, there is no evidence that any promises were made to movant which caused him to plead guilty. Movant testified that his attorney told him he would “probably get a parole and not more than ten years.” However, movant conceded this was just a “suggestion” by his attorney that he might receive such a sentence if he pled guilty; that it was his “best professional guess.” An indication of the vacillating, self-serving nature of movant’s testimony is that, at one point, he testified that his attorney allegedly promised him he would receive no more than a fifteen-year sentence; while, at another point, movant testified that his attorney suggested he would receive a parole and ten years if he pled guilty. Movant’s father provided the only support for appellant’s assertions. Mr. Christian testified that the attorney told him that if the mov-ant pled guilty “they would probably turn him back over to you.” Movant’s attorney testified unequivocally that he made no promises to movant. He stated that it was movant’s idea to plead guilty. It was the duty of the trial court to determine the credibility of the witnesses. Here it chose not to accept the claims of the movant, which it was entitled to do. Simpson v. State, 487 S.W.2d 512 (Mo.1972). The determination of the trial court on this issue is not “clearly erroneous.” Warren v. State, 482 S.W.2d 497 (Mo.Banc 1972). At best, movant’s claims assert only that his attorney rendered an opinion on the consequence of mo-vant entering a guilty plea; that is insufficient evidence upon which to invalidate a guilty plea. Goodloe v. State, 486 S.W.2d 430 (Mo.1972). Barylski v. State, 473 S.W.2d 399 (Mo.1971). Since movant’s argument that false hopes were held out to him which thereby induced him to plead guilty is without sufficient support, his concurrent assertion that because he believed his confession admissible at a trial his guilty plea is, therefore, involuntary and lacked understanding, is left alone. As stated above, the belief in the admissibility of a prior confession, without more, is insufficient to vacate a conviction entered on a later guilty plea. Redus v. State, supra. Lee v. State, 460 S.W.2d 564 (Mo.1970). McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). Appellant’s final contention is that he was denied the effective assistance of counsel because his counsel failed to advise him properly on the law regarding his confession to juvenile authorities, and misled and induced appellant to plead guilty by the holding out of hopes which proved false and ill-founded. The point concerning the holding out of ill-founded hopes has been discussed above. In assessing the effectiveness of counsel, “[t]he ultimate test is whether the efforts and representation of the attorney have reached a level of adequacy so that the defendant has had a ‘fair trial’; or if a plea of guilty is entered, that there has been such adequacy of representation that the plea is voluntarily and understandingly made.” Hall v. State, 496 S.W.2d 300, 303 (Mo.App.1973). There is a dearth of evidence in the trial transcript or the exhibits indicating unfairness in the juvenile hearing or inadequacy of representation affecting the voluntariness of the plea. Movant’s attorney accompanied movant to the juvenile court hearing, the arraignment and the plea hearing. He spoke with movant’s father several times on the telephone about the case. He testified that he was prepared to offer a defense at a jury trial for the mov-ant. He testified that he felt the confession and the weight of the testimony of witnesses at the arraignment were a principal factor in the movant’s change of his plea of not guilty at the arraignment to guilty at the plea hearing. He questioned movant about the voluntariness of the confession. The question of movant’s attorney’s belief and advice about the admissibility of mov-ant’s confession is a peculiar one. Movant made his confession on November 29, 1969. The section of the juvenile code concerning the admissibility of confessions made to juvenile authorities at later criminal proceedings was Section 211.-271(3) RSMo 1969, V.A.M.S. Section 211.271(3) had only become effective on October 13, 1969. Movant entered his plea of guilty on February 10, 1970. Movant’s attorney did not have the benefit of any cases construing Section 211.-271(3). There is no evidence in the transcript that movant’s attorney was aware or unaware of the relatively new amendment to the juvenile code; therefore, we assume he was aware of the new law. Movant’s attorney, then, was faced with whether to seek a first impression interpretation of the statute. A valid question would be whether the statement made by movant was “to the juvenile officer or juvenile court personnel.” Under the facts, the two police detectives asked movant several questions about his rights, had him sign a paper indicating a knowledgeable waiver of all his rights, and wrote movant’s confession- out in longhand. A juvenile officer was present during the confession in the juvenile detention center. Movant’s attorney apparently decided that under these circumstances, even with the new legislation, movant’s confession was admissible at a trial. Movant’s attorney did have the benefit of the holding in State v. Arbeiter, 449 S.W.2d 627 (Mo.1970). Arbeiter, supra, which, even so, may be distinguishable on its facts since the confession there was not made in the presence of police detectives. Even with the benefit of hindsight, it is still unclear how the trial court judge would have interpreted Section 211.271(3) at that time. Mr. Justice White deals with this problem in McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) : “That a guilty plea must be intelligently made is not a requirement that all advice offered by the defendant’s lawyer withstand retrospective examination in a post-conviction hearing. Courts continue to have serious differences among themselves on the admissibility of evidence, both with respect to the proper standard by which the facts are to be judged and with respect to the application of that standard to particular facts. That this Court might hold a defendant’s confession inadmissible in evidence, possibly by a divided vote, hardly justifies a conclusion that the defendant’s attorney was incompetent or ineffective when he thought the admissibility of the confession sufficiently probable to advise a plea of guilty.” It was not clearly erroneous for the trial court to have ruled the assistance of mov-ant’s attorney as effective considering the weight of the testimony of witnesses at the preliminary hearing, as stated by movant’s attorney, and the state of flux in the construction, or lack thereof, of the relevant statutory section. We rule that the findings of fact and conclusions of law by the trial court are not clearly erroneous, and the judgment is affirmed. All concur.

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Harold B. ALTMAN, Plaintiff-Appellant, v. Kay WERLING and J. M. Werling, d/b/a J. M. Werling and Sons, Salvors, Defendants-Respondents. No. 9680. Missouri Court of Appeals, Springfield District. May 7, 1974. Robert W. Richart, Joplin, for plaintiff-appellant. Charles M. Edwards, Blanchard, Van Fleet, Robertson & Dermott, Joplin, for defendants-respondents. PER CURIAM: October 25, 1973, plaintiff-appellant, Harold Altman, filed a petition in the Circuit Court of Jasper County seeking damages in the amount of $1,500 against defendants as a result of defendants’ alleged failure to deliver title to sundry personalty contained in a trailer which plaintiff had purchased from defendants. After due service of process on defendants, plaintiff obtained a default judgment December 13, 1973 against them for the amount sought in the petition on the basis of defendants’ failure to plead or otherwise appear in the action. Defendants moved on January 11, 1974, to set aside this default judgment and the court sustained the motion. By record entry of January 11, 1974, the default judgment was set aside and the case returned to the court’s active docket. Plaintiff moved to reinstate the default judgment on January 28, 1974, and on January 31 this motion was overruled by the court. Plaintiff filed a notice of appeal in the cause purporting to appeal from the court’s order setting aside the default judgment and from the order overruling plaintiff’s motion to reinstate that judgment. At the outset, it is incumbent upon this court to inquire, ex mero motu, into the grounds upon which our jurisdiction is predicated. “Even though none of the parties has objected to this court’s jurisdiction, it is our duty to notice any such question sua sponte.” P. I. C. Leasing, Inc. v. Roy A. Scheperle Const. Co., Inc., 489 S.W.2d 219, 221[1] (Mo.App.1972); Stubblefield v. Seals, 485 S.W.2d 126, 129[1] (Mo.App.1972). The right of appeal in Missouri is purely statutory [Household Finance Corp. v. Seigel-Robert Plating Co., 483 S.W.2d 415, 416[2] (Mo.App.1972)], and in the absence of specific statutory authority no appeal will lie from a ruling which does not constitute a final disposition of the case. Johnson v. Great Heritage Life Insurance Co., 490 S.W.2d 686, 689[2] (Mo.App.1973). Rule 81.05(a), V.A.M.R., provides that in the absence of after-trial motions or remedial action by the trial court, a judgment becomes “final” for appeal purposes upon the expiration of thirty days after its entry. “The trial court retains control over judgments during the 30 day period after entry of judgment and may vacate, reopen, correct, amend or modify its judgment for good cause within that time.” Rule 75.01. With respect to default judgments, Rule 74.05 says: “Such judgment may, for good cause shown, be set aside at any time before the damages are assessed or final judgment rendered, upon such terms as shall be just.” It is apparent, upon the face of the record before us, that the default judgment involved herein was set aside within the thirty-day period following its entry. Such judgment thus could properly have been set aside upon the velleity of the trial judge “ ‘for any reason that may [have] occur[red] to him’ ”, Dennis v. Jenkins, 422 S.W.2d 393, 395 [3] (Mo.App.1967), and no reason at all would have had to be stated for such action. O’Mara v. Gingrich, 424 S.W.2d 92, 94[1] (Mo.App.1968). In this posture, no appeal will lie from the order setting aside the default judgment “because there never [was] a final judgment.” Diekmann v. Associates Discount Corporation, 410 S.W.2d 695, 697—698[1] (Mo.App.1966). Accordingly, plaintiff’s appeal must be dismissed. It is so ordered. All concur.

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CITY OF ST. PETERS, Missouri, a municipal corporation, Plaintiff-Respondent, v. KODNER DEVELOPMENT CORPORATION et al., Defendants, Missouri Cities Water Company, Intervenor-Appellant. No. 34997. Missouri Court of Appeals, St. Louis District, Division One. May 7, 1974. Edwards, Seigfreid, Runge & Hodge, Inc., Mexico, for defendants-appellants. Niedner, Moerschel, Nack & Ahlheim, Rollin J. Moerschel, St. Charles, for plaintiff-respondent. DOWD, Chief Judge. An annexation case. Missouri Cities Water Company (hereinafter Company) appeals from the granting of plaintiff’s petition for declaratory judgment filed pursuant to the Sawyer Act, Section 71.015, RSMo 1969, V.A.M.S. The City of St. Peter’s (hereinafter City) filed an amended petition for a declaratory judgment authorizing the annexation of two parcels of land. Count I of this petition dealt with 1400 acres of land lying east of and adjacent to the City. Count II dealt with 290 acres lying south of and adjacent to the City. The two parcels were not adjacent to each other. The Company was granted permission to intervene. The court only heard Count II of the petition and authorized the annexation of the land described in Count II. The Company has appealed. The Company’s contention we consider first is the Point entitled, “A Proper Legal Foundation Was Not Laid for Annexation.” Under this Point, the Company asserts that this action was improper because the two parcels were not adjacent to each other; annexation would result in irregular city limits; and, the Resolution of the City to annex was adopted subsequent to the filing of this action contrary to the sequence required by Section 79.020, RSMo 1969, V.A.M.S. The Company has failed to cite and our research failed to uncover any adjacency requirement for annexation other than that the land sought to be annexed be adjacent to the city seeking annexation. Section 79.020; City of St. Ann v. Spanos, 490 S.W.2d 653, 656 (Mo.App.1973). It is apparent from the record that Count II was tried separately, and we have great difficulty determining what possible prejudice may have resulted from a two-count petition involving nonadjacent parcels of land. There is no prohibition of such a procedure either from legislation or judicial interpretation. Consequently, we must rule against the Company on this assertion. One of the factors to consider in determining the reasonableness of a proposal annexation is whether it makes the city’s boundaries more regular. This is not a requisite, however, and the fact that the incident proposal would not accomplish more regular boundaries does not mandate a judgment against annexation. The Company’s assertion of improper sequence of events is not supported by the record. The City’s original petition involved only the 1400 acres and was filed February 14, 1972 pursuant to a resolution of the Board of Aldermen of the City of St. Peters approved January 18, 1972. The Board then approved a second resolution on July 11, 1972 which included both the 1400 acre parcel and the 290 acre parcel. The City filed an amended petition pursuant to the latter resolution on July 17, 1972. (There is no indication that the Company opposed this amendment). We believe the procedure followed to be proper. A second Point in the Company’s brief we consider is denominated, “The Annexation of Land Should Be Infrequent.” While this Point falls short of the requirements of Rule 84.04(d), we have nevertheless chosen to consider the Company’s arguments on the merits. The frequency of annexation, like the regularity of boundaries, is only a factor to be weighed in determining reasonableness and is not conclusive. The crux of the Company’s argument is that the City failed to prove that the annexation of this 290 acres was reasonable and necessary. A court hearing a Sawyer Act case does not substitute its own judgment of what is reasonable and necessary for that of the legislative body proposing the annexation. City of St. Joseph v. Hankinson, 312 S.W.2d 4, 8 (Mo.1958). The trial court found the proposed annexation to be reasonable and necessary. “For us to reach a different conclusion we must be able to say (1) the reasonableness of the legislative decision of the [City Board of Aldermen] is not even fairly debatable, (City of St. Joseph v. Hankinson, 312 S.W.2d 4, 7, 8 (Mo.1958)), (2) the [Company] has carried its burden of showing that the [City] action was unreasonable, (St. Louis County v. Village of Champ, 438 S.W.2d 205, 2-5 (Mo.1969)), and (3) the judgment of the trial court was clearly erroneous (Rule 73.01(d)).” St. Louis County v. Village of Peerless Park, 494 S.W.2d 673, 677 (Mo.App.1973). We have thoroughly re-examined the evidence in this case and conclude that the legislative determination by the Board of Aldermen that the annexation was reasonable and necessary to the proper growth and development of the City was not arbitrary or capricious. The following evidence is supportive of this conclusion. 1. The St. Peter’s area is one of rapid growth and development. 2. The direction of development is toward the south and southeast; i. e., toward the proposed annexation. 3. Most of the 290 acres is platted for residential use and it appears likely that this purpose will be achieved shortly. We must also determine the reasonableness of the annexation as to the proposed area. City of Olivette v. Graeler, 338 S.W.2d 827 (Mo.1960). The area to be annexed would be benefited by the annexation by being provided a more detailed comprehensive plan; marginally lower fire insurance rates; lower water rates; street lighting; a dog catcher; and, the benefit of the City’s subdivision laws which provide for common ground and parks. Many of the municipal services (such as trash collection and gas, electric and telephone service) would, for all intents and purposes, remain unchanged regardless of the outcome of the proposed annexation. The only detriment to the area appears to be an increased property tax rate of $1.70 per $100 assessed valuation. While the Company argues that the current police protection is inadequate, the addition of another officer and improvement of facilities planned for the near future will undoubtedly be satisfactory to meet the area’s needs. It is apparent that the question of reasonableness is fairly debatable, and the decision of the St. Peter’s Board of Aider-men is, therefore, conclusive. City of Salisbury v. Nagel, 420 S.W.2d 37, 44 (Mo.App.1967). The Company has not met its burden of affirmatively establishing that the trial court erred in finding the annexation necessary and reasonable. The judgment of the trial court was not clearly erroneous. The judgment is, therefore, affirmed. SIMEONE and KELLY, JJ., concur. . The judgment on Count II was a final judgment for purpose of appeal. See Rule 81.06, Y.A.M.R.; Readenour v. Motors Ins. Corp., 287 S.W.2d 135 [1], (Mo.App.1956) ; Robb v. N. W. Electric Power Co-op., 297 S.W.2d 385 (Mo.1957).

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Archie L. LAHMANN, Plaintiff-Appellant, v. STATE of Missouri, Defendant-Respondent. No. 35032. Missouri Court of Appeals, St. Louis District, Division One. May 7, 1974. Fred Rush, St. Charles County Public Defender, St. Charles, for plaintiff-appellant. John C. Danforth, Atty. Gen., G. Michael O’Neal, Robert Presson, Asst. Attys. Gen., Jefferson City, David A. Dalton, Pros. Atty., Dale Rollings, Sp. Pros. Atty., St. Charles, for defendant-respondent. SIMEONE, Judge. This is an appeal from an order of the circuit court of St. Charles County entered after an evidentiary hearing denying mov-ant-appellant’s motion pursuant to Rule 27.26, V.A.M.R. to vacate sentence imposed for the offenses of burglary second degree and stealing. Appellant, Archie Lahmann, was tried in November, 1969 and sentenced on February 2, 1970 on charges of burglary second degree and stealing and the conviction was affirmed. State v. Lahmann, 460 S.W.2d 559 (Mo.1970). On March 18, 1971 he filed his motion to vacate in the circuit court of St. Charles County alleging as grounds of his motion that (a) “This Court refused petitioner a preliminary hearing with counsel present” and (b) “This Court denied petitioner the right to competent and effective counsel.” An evidentiary hearing was held at which movant and his former attorney, Ronald L. Boggs, were the principal witnesses. After being charged with the offenses of burglary and stealing movant first appeared in magistrate court on June 18, 1969, and the right to obtain counsel was explained. The preliminary hearing was set for and heard on June 26, 1969. At the preliminary hearing on that date he appeared without counsel and was questioned whether he desired to hire an attorney or whether he desired the court to appoint one. Movant desired to hire his own counsel and desired a continuance to do so. The court indicated that it would grant a one-day continuance to employ counsel, but movant indicated he needed more time. The continuance was denied and the preliminary hearing was held without counsel. Sometime early in July and prior to July 18, 1969, movant employed Ronald L. Boggs as counsel. On July 18, 1969 Boggs filed a motion to remand the cause for a preliminary hearing with the assistance of counsel. This motion was denied on August 4, and on that date movant entered a plea of not guilty. At defendant’s request, the cause was continued until November 25, 1969. During that period movant met with counsel three or four times. The day before trial movant informed Boggs that he did not wish to be represented by Boggs and wanted to obtain a different attorney. The reason that movant gave was that petitioner “had not told him [Boggs] everything.” Sometime prior to the trial a “joint decision” was reached that Boggs would sit mute during the trial because no attorney was present at the preliminary hearing, the court denied a continuance and because movant no longer wanted Boggs as his attorney. The “agreement” was somewhat “of instructions [from mov-ant] and somewhat of an agreement.” While not all the facts concerning this decision were detailed in the evidentiary hearing on the motion, they ar§ related in State v. Lahmann, supra. After the evidentiary hearing the trial court made findings of fact and conclusions of law. The court found inter alia that (1) while petitioner does not have an abundance of formal education, he is “articulate, possesses an average or better command of the English language and expresses himself clearly, (2) that in the Magistrate Court he was granted time to employ counsel for preliminary hearing but that he failed to do so although ample explanation was made of his right to obtain counsel, (3) petitioner was not represented by counsel at the preliminary hearing on June 26, 1969, (4) the first time petitioner told counsel he did not want him to defend him was the night before trial for the reason that he has not told counsel everything, (5) petitioner “ordered” his counsel to sit mute during the trial and that this tactic was employed because the trial court refused to grant a continuance to employ other counsel, and that this tactic was agreed upon between movant and counsel for the purpose of injecting error, and (6) the grounds set forth in his motion to vacate the sentence had been ruled upon in his direct appeal. The court, therefore, concluded that (1) failure and refusal to obtain counsel at preliminary hearing constituted a waiver, (2) even in the absence of waiver the circuit court was not required to remand for a preliminary hearing with counsel present because the hearing was conducted prior to Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970) which is not retroactive, (3) that counsel “diligently and effectively attempted to represent” petitioner, (4) that the “order” to sit mute was made at the behest of the petitioner after consultation with his attorney, so that it cannot be said that he has been denied the “effective assistance of counsel at his trial.” The motion was therefore denied. On this appeal movant contends (1) that the court erred in finding that he waived his right to an attorney at the preliminary hearing in the magistrate court and in finding that he was not entitled to have the cause remanded to the magistrate court for a preliminary hearing with counsel present, and (2) that the court erred in finding that he was not denied effective assistance of counsel. A motion filed under Rule 27.26 is, of course, an independent civil action which is governed, so far as is applicable, by the Rules of Civil Procedure. Rule 27.-26(a). In such a proceeding the burden is on the petitioner to establish by a preponderance of the evidence the relief sought. Beach v. State, 488 S.W.2d 652, 656 (Mo.1962). Upon our review of the order of the trial court we are limited to a determination of whether the findings, conclusions and judgment are “clearly erroneous.” Rule 27.26(j); Crosswhite v. State, 426 S.W.2d 67, 70 (Mo.1968); Walster v. State, 438 S.W.2d 1, 2 (Mo.1969); Shoemake v. State, 462 S.W.2d 772, 775 (Mo. banc 1971). A finding is clearly erroneous when the reviewing court is left with the definite and firm conviction that a mistake has been committed. Crosswhite v. State, supra, 426 S.W.2d at 70-71. We must give due regard to the trial judge’s opportunity to hear the witnesses and to defer to its determination of credibility unless it clearly and convincingly appears that it has abused its discretion. Walster, supra; Brown v. State, 495 S.W.2d 690 (Mo.App.1973). While an accused is entitled to the effective assistance of counsel, movant has a heavy burden to carry to show ineffectiveness. Counsel is vested with broad latitude and he is not to be adjudged incompetent and the movant denied effective assistance by reason of what, in retrospect, appears to be error of judgment. Hall v. State, 496 S.W.2d 300, 303 (Mo.App.1973) and cases cited therein. Counsel has broad latitude in the conduct of defense and cannot be adjudged incompetent and the client deemed to be denied effective assistance of counsel by reason of trial strategy which did not produce an acquittal or some other desired result. State v. Wilkinson, 423 S.W.2d 693 (Mo.1968); State v. Worley, 371 S.W.2d 221, 224 (Mo.1963); Frand v. United States, 301 F.2d 102, 103 (10th Cir.1962). Under these principles we are convinced, after examining the transcript and the briefs and cases cited therein that the trial court did not err in denying appellant’s motion to vacate sentence. Petitioner made similar claims on his direct appeal that he has made in this motion. On direct appeal he contended that it was error for the court to overrule his motion to remand his case for preliminary hearing with the assistance of counsel. His argument was that he was thus deprived of his right to a fair trial under Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970). The Supreme Court rejected this contention holding that petitioner’s case was tried before Coleman v. Alabama was decided, June 22, 1970, and “appellant does not undertake to demonstrate how he might otherwise have been prejudiced by the court’s ruling.” “Consequently, on this point,” the Court stated, “suffice to say that considerations, if any, arising from Coleman v. Alabama are not applied retroactively.” State v. Lahmann, supra, 460 S.W.2d at 564; Adams v. Illinois, 405 U.S. 278, 285, 92 S.Ct. 916, 31 L.Ed.2d 202 (1972); Hamel v. State, 508 S.W.2d 288 (Mo.App.1974); Rule 23.03; State v. Caffey, 457 S.W.2d 657, 663 (Mo.1970). Therefore, even in the absence of a waiver of counsel at preliminary hearing, there was no requirement at that time that counsel be provided at that stage of the proceeding. The trial court also found that, in any event, petitioner waived counsel at preliminary hearing. We cannot say that under the circumstances this finding was clearly erroneous. Movant had some eight days to procure counsel and did not do so; he knew the preliminary hearing was to be held on June 26, 1969; his right to counsel was explained; he was found to be an “articulate” person and found to “possess[es] an average or better command of the English language and express[es] himself clearly.” The court did not err in finding that petitioner waived his right to an attorney at the preliminary hearing and did not err in finding that petitioner was not entitled to have the cause remanded for a preliminary hearing with counsel present. Neither can we say under these circumstances movant was denied effective assistance of counsel. Counsel for petitioner sat mute during the trial as a result of a “joint” decision or agreement between petitioner and counsel and because petitioner instructed counsel to do so, for the purpose of injecting error into the proceedings. In Thomas v. State, 475 S.W.2d 98 (Mo.1971), counsel for defendant failed to cross-examine state witnesses, did not present any evidence on behalf of the accused and failed to make any oral argument to the jury. These tactics were done with the knowledge and approval of defendant. Following conviction, motion to vacate was filed, alleging denial of effective assistance of counsel. Our Supreme Court affirmed the denial of the motion and held that this course of action was a calculated trial tactic done with knowledge and approval of appellant. “[T]o sustain appellant’s contention . . . the procedure followed in this case would present an absolute barrier to a final conviction of an accused who authorized or directed his counsel to follow it.” 475 S.W.2d at 101. The tactic of counsel sitting mute during the trial was with the knowledge and approval of the appellant, and found by the trial court to be “ordered” by him and agreed upon between petitioner and his counsel. To hold that a movant could by a motion to vacate obtain a reversal of the conviction on the ground that counsel was ineffective when counsel’s actions were with the knowledge, approval and under the direction of the accused would create a condition inimical to the proper functioning of the courts. Appellant and his counsel intentionally and knowingly followed a course of action and “gambled” on its success. Because the strategy did not produce the desired result, appellant should not be entitled to a new strategy before a new jury in a new trial. The court did not err in finding, under the circumstances presented, that appellant was denied the effective assistance of counsel. On the whole, we cannot say the findings and conclusions of the trial court are clearly erroneous. The order denying the motion is affirmed. DOWD, C. J., and WEIER and KELLY, JJ., concur. . Por a full discussion of post-conviction relief, see Anderson, Post-Conviction Relief in Missouri — Five Years Under Amended Rule 27.26, 38 Mo.L.Rev. 1 (1973).

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Mary Cella McFADDEN, Plaintiff-Respondent, v. James F. McFADDEN, Defendant-Appellant. No. 351II. Missouri Court of Appeals, St. Louis District, Division One. May 7, 1974. Gerritzen & Gerritzen, Ray A. Gerritzen, St. Louis, for defendant-appellant. Daniel P. Reardon, Jr., St. Louis, for plaintiff-respondent. WEIER, Judge. Cross motions of the parties for modification of custody orders concerning their minor children were granted in part by the court. Defendant has appealed. Plaintiff and defendant were divorced on September 22, 1969. At that time plaintiff mother was granted care and custody of the five minor children but was prohibited from moving the children from the State of Missouri. Defendant father was granted visitation rights and temporary custody on alternate weekends and certain holidays. In a subsequent motion to modify, custody of the oldest child was transferred from plaintiff to defendant father effective June 1, 1972. Plaintiff was given temporary custody of the child on alternate weekends, certain alternate holidays, and two weeks in the summer of each year. The court’s instant judgment October 12, 1972, modifying the previous custody orders (and subsequently modified December 29, 1972) permitted plaintiff to remove the three youngest children from the State of Missouri for residence and eliminated the rights of defendant with regard to visitation or temporary custody other than at Thanksgiving and Easter in odd-numbered years and at Christmas in even-numbered years. Defendant was also awarded temporary custody of the three youngest children for a continuous period of two weeks during a period between July 1 and September 1 of each year at a time to be determined by plaintiff before June 1 with notice to defendant by that date. As heretofore described, defendant father had been previously awarded the custody of the oldest child. The decree from which this appeal has been taken also awarded custody of the second oldest child, Kenneth, to defendant. Plaintiff mother was awarded temporary custody in the state of defendant’s residence of the two oldest children on certain holidays and “at such times in Missouri or outside of this state between July 1st and September 1st of each year, as said children or either of them elect, in writing addressed to plaintiff, to be in her temporary custody.” On appeal, we have been requested to review the case de novo and after review of the evidence to determine that the court erred in failing to transfer the custody of all the children to their father, the defendant. Before considering this review, however, we will dispose of certain technical matters directed toward the admission of evidence. In this connection, defendant first contends that the court erred in failing to accept testimony of certain of the children as to events that occurred up to the date of the hearing. The incident complained of occurred on the second day at which evidence was taken by the court, some nine days after the first hearing date. At that time one of the children was placed on the stand to testify with regard to some recent events concerning the dispute between the parents and particularly with regard to the treatment of this child by the plaintiff, his mother. These were events which had occurred between the date of the first hearing on the motion and the date of the second hearing. The court sustained an objection to the introduction of this evidence because it came in after the date of the filing of the motion to modify, but allowed the testimony as an offer of proof. One of the elementary rules of evidence is that all facts and circumstances which are relevant to the issues of the case are admissible, unless their exclusion is required by some established principle of evidence. Godsy v. Thompson, 352 Mo. 681, 179 S.W.2d 44, 49 [8] (1944), cert. den., 323 U.S. 719, 65 S.Ct. 48, 89 L.Ed. 578 (1944); State v. Knight, 356 Mo. 1233, 206 S.W.2d 330, 333 [8] (1947). On the hearing of a motion to modify, the court may consider changed facts and circumstances after the prior decree and material facts existing at the time of the decree but unknown to or concealed from the court. In re Wakefield, 365 Mo. 415, 283 S.W.2d 467, 473 [14] (banc 1855); Endicott v. Endicott, 435 S.W.2d 388, 390 [2] (Mo.App.1968). The reason for not going into matters which occurred prior to a previous decree is they have been merged into that decree and thereafter may not be inquired into under the doctrine of res judicata, which favors the repose of litigated issues. But this rule applies only as to matters which occurred prior to the last decree concerning a child’s custody. The court should have admitted and considered all relevant testimony as to events which occurred after the first hearing on the motion and up to the time of the second hearing. See Brenneman v. Hildebrandt, 137 Mo.App. 82, 119 S.W. 452, 453 [3] (1909). The offer of proof,- however, consisted of the testimony itself, and we have therefore been able to consider this additional testimony in our review of the evidence without remand. In another contention of error on the admission of evidence, defendant complains of the court’s ruling on refusing to admit a 1968 Firmin Desloge Hospital record which defendant contends is relevant in that it showed a behavior pattern which indicated plaintiff to be unfit to raise her children. We agree with the trial court in sustaining the objection to the introduction of this exhibit because it concerned matters preceding the decree of divorce, and further, it is too remote and not relevant to the instant proceeding. As previously stated, when the custody of a child has been fixed in a divorce decree, as here, there can be no change made respecting this custody except upon a showing of changed conditions since the entry of the decree, or upon material and relevant facts existing at the time of the decree but unknown to or concealed from the court, and then only for the welfare of the child. Endicott v. Endicott, supra, 435 S.W.2d 388, 390 [2] (Mo.App.1968). There was no showing by defendant that this hospital report was not the subject of inquiry or was not made known to the court at the time of divorce or prior modification. It was certainly remote in that it covered a period of time more than four years prior to the instant modification hearing. We find this contention without merit. Another contention of error in regard to the admission of evidence is raised on the failure of the court to admit as evidence the deposition of a physician who had examined plaintiff. This deposition had been taken by the attorney for the defendant in anticipation of the fact that the doctor’s wife had been scheduled for surgery on the morning the case was set for trial and he would therefore not be able to attend. The case was set for hearing on October 2, 1972, but the deposition was not presented until the case was further heard on October 12, 1972, and there was no indication that the doctor could not be present on that date. The deposition of a physician who is engaged in the discharge of his official or professional duty at the time of trial may be read in evidence. Rule 57.29, V.A.M.R. But here the record does not indicate that the doctor was engaged in the discharge of his duties on October 12, 1972, the day that his deposition was offered to the court. None of the other facts authorizing the reading of the deposition into the evidence under the rule were shown to exist. We therefore determine that this contention has no merit. We now turn to the question whether the decree of the court is supported by the evidence. In this we are admonished not to set the judgment aside unless clearly erroneous and, of course, due regard must be given to the opportunity of the trial court to judge the credibility of the witnesses. Rule 73.01(d). We have considered the evidence presented to the court in this case. As in so many other cases involving child custody, neither party has been shown to be altogether fit for the rearing of the children. Yet neither is so unsuitable as to cause us to believe that the children should be taken from the parents and placed in a foster home. It would do no service to the children and would do no honor to the parents to recite all of the facts which prior to trial of this motion almost led to a complete breakdown of parental authority and the establishment of a suitable environment for the children in the homes where they had been placed. The trial judge, after hearing the evidence from each side, including testimony of the children who were involved in continuing crises which might be characterized as displays of parental immaturity and irrationality, wisely decided that the two older children, both boys, would be better off with the father, and that the three youngest children would be better off with the mother. The wisdom of this choice as to the oldest boy had been demonstrated by this child’s improved behavior since the prior modification placing him with the father, and we cannot say that the decision in this proceeding with regard to the division of the custody of the five children was clearly erroneous. It is also apparent to us that the three youngest children will be better served by allowing the plaintiff to move with them from the State of Missouri to another place of residence where the plaintiff will live with her husband by remarriage and where they will be away from constant interference by the defendant father. We note that the time and location of temporary custody of the two oldest children by plaintiff is to be determined by the children themselves. We believe it is unwise to accord children the authority and power to determine when they are to be placed in the temporary custody of the other parent who does not have their permanent custody. Obviously this is a matter which should be determined by the parents themselves under a plan fixed by the court. We, therefore, affirm the trial court’s placement of the custody of the minor child Kenneth in defendant subject to plaintiff’s temporary custody of both older boys in the state of defendant’s residence from 10:00 a. m. to 8:00 p. m. on Christmas and Mother’s Days, and for two continuous weeks in Missouri or outside of this state between July 1 and September 1 .each year, but direct that the determination of the time be made by the plaintiff and that she notify defendant thereof by registered mail addressed to his last known address on or before June 1st of each year. That portion of the decree authorizing plaintiff, who already had received custody of the three youngest children, to remove these children for residence to any place in or outside of the State of Missouri is affirmed. We further approve the court's order with respect to temporary custody in defendant of these three children at the times and in the manner specified. The judgment of the court is therefore affirmed in the respects hereinabove set forth, and reversed and remanded with instructions to enter a new judgment as hereinabove directed with respect to a determination of the time of temporary summer custody by the two oldest children. Costs on appeal are assessed one-half to plaintiff and one-half to defendant. DOWD, C. J., and SIMEONE, J., concur. . Now codified by § 452.410, RSMo. 1969, V.A.M.S. (effective Jan. 1, 1974), which states: “The court shall not modify a prior custody decree unless it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child.” . Precise rules are not followed in matters where the welfare of a child is the prime consideration, Ackfeld v. Ackfeld, 483 S.W. 2d 614, 616 [1] (Mo.App.1972), and technical rules are not to be given serious consideration in cases of this kind, Gianformaggio v. Gianformaggio, 341 S.W.2d 293, 296 [2] (Mo.App.1960).

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STATE of Missouri, Plaintiff-Respondent, v. Willie J. TATE, Defendant-Appellant. No. 35442. Missouri Court of Appeals, St. Louis District, Division 2. May 7, 1974. John H. Marshall, Asst. Public Defender, 22nd Judicial Circuit, St. Louis, for defendant-appellant. John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for plaintiff-respondent. GUNN, Judge. Defendant appeals a conviction by jury for feloniously tampering with a motor vehicle without the owner’s consent under § 560.175(1) R.S.Mo.1969, V.A.M.S. He was sentenced to five years imprisonment. The sole issue raised by defendant is that the evidence was insufficient to support a conviction of a felony under § 560.-175(1); that defendant’s offense was only a misdemeanor under § 560.175(2). We affirm. The facts of this case attest to the truth of the adage: “If you must steal a car, don’t try to take a policeman’s, particularly when it is parked in a police station parking lot.” On the evening of October 1, 1972, St. Louis police officers in the Deer Street station noticed defendant on the police station parking lot entering an automobile owned by one of the police officers. Several police officers approached the car and observed defendant lying on the seat with his hands toward the ignition moving in a back and forth motion. A companion was with the defendant in the car. Defendant was immediately apprehended and admitted using a pick found in his possession to jumble the ignition lock tumblers for the purpose of trying to start the car in an effort to steal it. The ignition had been scratched and damaged and the key to it would no longer work or start the car. The statute involved is § 560.175, with the two pertinent subsections to this case providing: “1. No person shall drive, operate, use or tamper with a motor vehicle or trailer without the permission of the owner thereof. “2. No person shall, without the permission of the owner or person in charge thereof, climb upon or into, or swing upon any motor vehicle or trailer, whether the same is in motion or at rest, or sound the horn or other sound-producing device thereon, or attempt to manipulate any of the levers, starting device, brakes, or machinery thereof, or set the machinery in motion, or hold to such vehicle while riding a bicycle or other vehicle.” Section 560.180 R.S.Mo.1969, V.A.M.S. provides that violation of subsection 1 of the foregoing statute is a felony while violation of subsection 2 is a misdemeanor. Defendant was charged with tampering under subsection 1, but defendant asserts that the evidence was only sufficient to show a misdemeanor under subsection 2 for manipulating the starting device. We hold that inserting a pick in the ignition system of the automobile for the purpose of jumbling the lock tumblers, thereby rendering the ignition system inoperable by key as intended, is feloniously tampering. State v. Ridinger, 364 Mo. 684, 266 S.W.2d 626 (1954) involved the removal of a tire and wheel from a motor vehicle with the subsequent charge under § 560.175(1) for felonious tampering. An argument similar to that raised by defendant here was presented, and the court determined that whether the act charged would be “tampering” was a judicial question. In upholding a felonious tampering conviction, the court said, l.c. 631: “To take from a motor vehicle a wheel and tire renders it just as immobile and just as incapable of being operated, and just as effectively destroys the function for which it was manufactured and purchased, and for which it was owned, as would tampering with it by rendering useless its ignition system or its carburetor or destroying its battery or motor.” (Emphasis added.) We believe the foregoing emphasized language of the Ridinger case to be apt here, as the auto’s ignition system was rendered useless by the defendant. But in addition to Ridinger, felonious tampering has been treated by equating “tampering” with the “drive”, “operate” and “use” language of § 560.175(1). Thus, a defendant caught driving, using or operating a motor vehicle without the owner’s consent has been so charged along with tampering with a motor vehicle. State v. Humphrey, 462 S.W. 2d 804 (Mo.1971); State v. Townsend, 327 S.W.2d 886 (Mo.1959); State v. Edmonson, 309 S.W.2d 616 (Mo.1958). In State v. Hale, 463 S.W.2d 869 (Mo.1971), it was held that to attach a cable to a car for the purpose of towing it away was tampering, with the court noting that if taking parts was tampering, certainly so would its being towed away where prevented only by the arrival of police officers. Most felony tampering cases involve the theft or attempted theft of automobile parts. In addition to State v. Ridinger, supra, the thread running through the felony tampering cases of § 560.175(1) is the intent to steal, either the vehicle or parts, as opposed to subsection 2 offenses where trespass, as opposed to theft, seems to be the critical element. State v. Hale, supra, 463 S.W.2d at 872. Here, it is clear that in addition to rendering the ignition useless, which under State v. Ridinger is sufficient to warrant a finding of felonious tampering, defendant manifested an intent to steal the car. Either circumstance affords sufficient basis for finding defendant guilty of felonious tampering under § 560.175(1). The judgment is affirmed. SMITH, P. J. and McMILLIAN, J., concur. . See State v. Lee, 498 S.W.2d 780 (Mo.1973) (tire and wheel) ; State v. Heather, 498 S.W. 2d 300 (Mo.App.1973) (distributor cap, rotor, coil wheel) ; State v. Staples, 490 S.W.2d 293 (Mo.App.1973) (radio, jumper cables, wheels partially removed) ; State v. Bates, 439 S.W.2d 161 (Mo.1969) (front fenders and front bumper) ; State v. McLarty, 414 S.W. 2d 315 (Mo.1967) (automobile air conditioner) ; State v. Slay, 406 S.W.2d 575 (Mo.1966) (front bumper and hood) ; State v. Wood, 266 S.W.2d 632 (Mo.1954) (gasoline and license plate).

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AUTOMOBILE CLUB INTER-INSURANCE EXCHANGE, Plaintiff-Respondent, v. Dennis I. TONKINS et al., Defendants-Appellants. No. 35350. Missouri Court of Appeals, St. Louis District, Division Two. May 7, 1974. Briegel & Kimme, John B. Berkemeyer, Union, for defendants-appellants. Jenny, Cole & Eckelkamp, L. B. Eckel-kamp, Jr., Washington, for plaintiff-respondent. GUNN, Judge. Appeal from a declaratory judgment. Defendants were declared to be residents of one household under the terms of an insurance policy issued by plaintiff insurance company and thereby excluded from coverage under the policy. The issue is whether defendants, a father and his two sons, were members of the same family residing in the same household within the meaning of an exclusionary clause of an insurance policy. We affirm the trial court’s judgment holding the exclusionary provision applicable. Plaintiff insurance company instituted an action against Henry Tonkins, the insured, and his sons, Dennis and Gary Ton-kins, as defendants. Defendants were involved in a one-car accident, at which time Gary was driving Henry’s car and in which Dennis and Henry were passengers. Dennis filed suit against his father, Henry, and Gary for damages for injuries sustained in the accident. Plaintiff filed this action for declaratory judgment seeking declaration that plaintiff would not be liable or required to defend Dennis’ action by reason of the household exclusionary clause in the insurance policy. The exclusionary clause provides: “This policy does not apply under Part I: While the automobile is being driven by any person under the age limit set by law, or . .” “(K) to bodily injury to any assured or any member of the family of an assured residing in the same household as the assured.” Plaintiff’s evidence was that defendants all lived in a house in an area zoned for single family residences. Downstairs, the house contained a living room, kitchen, two bedrooms and a bath. There was also an upstairs bedroom. Henry, the father, maintained that he lived as a separate household from that of his son. His room was on the first floor, off the living room, and a curtain could be drawn across his doorway to screen his room from the rest of the house. The father purchases and prepares his own food which is kept in a separate refrigerator and eats in his own room most of the time. The utility bills for all city services are sent to the single address, but the father pays the phone bill as his contribution. The bathroom is shared by all members of the family. The father testified that he had control over his own room but that his son had control over the rest of the house. The fee interest in the house is owned by Dennis and his wife, and Dennis and his wife have conveyed a life estate in the house to the father. There are first and second deeds of trust on the house signed by Dennis, his wife and Henry, and the payments on the first deed are made by Dennis and his wife with payments on the second deed made by Henry. The Tonkins testified that the payments on the second deed were in lieu of rent to be paid by Henry. Decisions regarding repairs and maintenance to the house are for Dennis to make, but the father has control over his own room. Dennis pays the real and personal property taxes on the house. The arrangement under which the Tonkins live is permanent as Henry has no intention of ever moving. The trial court found that the defendants were members of one household and that, therefore, plaintiff was excluded from the liability under the terms of the insurance policy. We are guided by the principle that in reviewing a court tried case, we should not set aside the judgment unless it is clearly erroneous. Hawn v. Hawn, 505 S.W.2d 459 (Mo.App.1974); Rule 73.01 (d) V.A.M.R. But the burden is on respondent to prove facts which would make the exclusionary provision of the policy applicable. Mission Insurance Co. v. Ward, 487 S.W.2d 449 (Mo. banc 1972). We cannot find that the trial court’s decision here was clearly erroneous. It is true, as defendants contend, that a person who stays in another’s home, even a relative’s home, but lives independently of the rest of those residing in the home may not be a member of the household. The individuals present in the home must be merged with others living there so that the home is one unit under one management. Any evidence that the persons do not function as a single unit may defeat a claim that all persons residing in the home constitute one household. Giokaris v. Kincaid, 331 S.W.2d 633 (Mo.1960). But a person who lives in a home and functions within the family unit with intention to remain there permanently will be considered as residing in the household within the meaning of the type of exclusionary clause which is involved in this case. State Farm Mutual Automobile Ins. Co. v. McBride, 489 S.W.2d 229 (Mo.App.1972). In Mission Insurance Co. v. Ward, supra, two theories concerning the existence of one or two households within the confines of a single dwelling were discussed. The one theory looks to the length of time the parties intend to remain in the home. A temporary arrangement lends itself to the idea of separate households, whereas a permanent arrangement might indicate the existence of a single household. It is clear that if two families live together under a single roof temporarily until one family can find another place to live, separate households exist. Giokaris v. Kincaid, supra; Mission Insurance Co. v. Ward, supra. The second theory concerns the nature of the arrangement and whether the parties live as separate units or function together as one unit under one management. This case presents a clash between the two theories presented. There is no question but that the arrangement was permanent. The father has a life estate in the house and plans never to move. But there was also evidence to establish some intention of the Tonkins to function as two separate units so the evidence is of permanence and separation. Although there was evidence of some intention to function separately, the trial court also had evidence of the singleness of the family unit. Since there was supportive evidence for the trial court to find that Henry and Dennis Ton-kins were members of the same family residing in the same household, the trial court was not clearly erroneous in concluding that defendants’ claim was excluded from the policy. The decision here should not be construed to imply that there cannot ever be a permanent arrangement for maintaining separate household units under a single roof. We merely hold here that the trial court was not clearly erroneous in finding the existence of a single family unit as opposed to two family units. The judgment is affirmed. CLEMENS, Acting P. J., and Mc-MILLIAN, J., concur.

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Zelma Mary PATTERSON et al. v. Joe Marshall ALEXANDER et al. Supreme Court of Tennessee. May 6, 1974. John J. Ross, Jr., Savannah, for appellants. W. Lee Lackey, Savannah, for appellees. OPINION McCanless, justice. This suit was brought in the Chancery Court of Hardin County to construe the will of Robert A. Alexander, Jr. The suit was brought by twenty-two living descendants of the testator against the unborn heirs of the testator and Joe Marshall Alexander, one of his grandchildren. The will was duly probated in Hardin County. The testator left a life estate to his wife, with the remainder to his six children. The issue in this case arises from the following provision of the will: “Each of my children shall take an equal undivided interest in said Robert Alexander homeplace, but said children’s right to sell their respective undivided interest shall be restricted by the condition that they must sell only to one or more of my heirs, and if they do not sell their one-sixth undivided interest to one of my heirs, then Fee Simple title in said interest shall go to their children or their heirs.” At the death of the testator’s wife, the six children sold the property in question to the defendant, Joe Marshall Alexander, a grandchild of the testator. The descendants then filed this complaint, praying that the court determine whether the plaintiffs could pass a good and merchantable title to Joe Marshall Alexander. An answer was filed by the guardian ad litem. The defendants argued that the word “heirs” in the above quoted passage referred only to the testator’s “children”. Thus, the children of the testator could sell only to each other, and not to a grandchild. The Chancellor held, however, that as used in this will, the word “heirs” referred to all the lineal descendants of the testator. The guardian ad litem prayed and was granted an appeal to this Court. The construction of the will is controlled by the intention of the testator. The Court thus looks to the whole instrument and the particular language used by the testator for guidance in determining that intention. Burton v. Kinney, 191 Tenn. 1, 231 S.W.2d 356 [1950]; Jackson v. Jackson, 219 Tenn. 237, 409 S.W.2d 172 [1966]. Likewise, the intention of the testator often controls the meaning of certain terms used in the will which would otherwise have meanings established by law or precedent. The word “heir”, when used in a will, “is flexible and should be so construed as to give effect to the intention of the testator as manifested by the will.” Thompson on Wills, Section 265, page 415 [3d Ed. 1947]. In Tennessee, the legal meaning of the word “heirs” is the class of persons upon whom descent is cast by the statutes of descent. 1 Phillips Prichard on Wills, Section 435, page 382 [1955], The word has been construed in some cases to refer only to “children”, and not lineal descendants. In other cases, the Court has held specifically that “heirs” included grandchildren as well as children. In Campbell v. Lewisburg & N. R. Co., 160 Tenn. 477, 26 S.W.2d 141 [1930], the Court first noted that “heirs of the body include grandchildren as well as children —lineal descendants.” The Court also noted that the term it was construing, “heirs of the body”, was synonymous with the terms “legal heirs” and “heirs”. See also Scruggs v. Mayberry, 135 Tenn. 586, 188 S.W. 207 [1916]; Waller v. Martin, 106 Tenn. 341, 61 S.W. 73 [1901]; and Ward v. Saunders, 35 Tenn. 387 [1855], The deciding factor in these cases, some of which hold “heirs” to mean “children” and others to mean “descendants”, is the intention of the testator as expressed in the will as a whole. In looking at the entire will, we agree with the Chancellor that Robert Alexander, Jr., intended “heirs” to mean “lineal descendants.” Evidence of this intention is found in the testator’s choice of words. In the provision in question, the testator first devised the property to his six children, then said that his “children’s right to sell” was to be restricted. In setting forth the restriction, the testator said his children could sell only to the testator’s heirs, an abrupt change of terms which we think signifies his intention to differentiate between two classes of persons. In our opinion, had the testator thought his devisees and potential purchasers to be identical classes of persons, he would have described them with identical terms in a single provision of the will. In Tennessee, the established rule is that the word “children” refers only to immediate offspring. 1 Phillips Prichard on Wills, Section 441, page 385 [1955] ; Hoggatt v. Clopton, 142 Tenn. 184, 217 S.W. 657 [1919], Since the testator chose a term other than “children” to delineate the class of prospective buyers of the homeplace, we assume he did so purposely and had in mind that definition of “heirs” which refers, not to “children” alone, but also to the lineal descendants. The will does not suggest any contrary construction. For these reasons, the decree of the Chancery Court construing the term “heirs” to refer to “descendants” under the facts in this case, and confirming the sale of land to testatorjs grandchild, is affirmed. DYER, C. J., CHATTIN and FONES, JJ., and LEECH, Special Justice, concur.

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Mrs. Allene COOPER et al., Appellants, v. Walter ROSSON, Appellee. Supreme Court of Tennessee. May 6, 1974. Joseph L. Lackey, Sr., Nashville, for appellants. Dwayne D. Maddox, Maddox & Rad-ford, Huntingdon, for appellee. OPINION CHATTIN, Justice. Appellants filed this complaint against appellee seeking an injunction prohibiting appellee from cutting and removing the timber from thirty-three acres of land in which they claimed the fee by virtue of a decree of the Chancery Court of Benton County entered on the 21st day of May, 1936. Appellants, also, sought to have a deed set aside as a cloud on their title to the property whereby W. J. Rosson, Deceased, had attempted to convey the land to appellee. Appellee has filed a motion to dismiss this appeal for the failure of the appellants to prosecute the same within the time allowed. The Chancellor tried the case on a stipulation of facts and two exhibits filed thereto. A decree was entered on July 17, 1973, dismissing appellants’ complaint. Appellants prayed and were granted an appeal upon filing an appeal bond within thirty days and preparing and filing a bill of exceptions within ninety days. Appellants filed an answer to the motion to dismiss the appeal. They admit no bill of exceptions was filed, “as all the evidence submitted was by stipulation of fact; thus, the record should have been prepared by the Clerk and Master and then filed with the Clerk of the Supreme Court at Jackson.” The record shows that the appeal bond was filed within thirty days. No bill of exceptions was tendered for authentication by the Chancellor within ninety days or thereafter. On December 13, 1973, Counsel for ap-pellee filed the motion to dismiss the appeal. On January 23, 1974, a transcript of the record certified to by the Clerk and Master was filed in this Court. From the foregoing facts, it is clear we may consider the transcript as filed for writ of error. T.C.A. Section 27-607; Sanders v. Loyd, 51 Tenn.App. 49, 364 S.W.2d 369 (1960). However, the problem arises as to whether we may consider the facts as set forth in the stipulation of facts since the stipulation was not preserved by inclusion in a hill of exceptions authenticated by the Chancellor nor through the minutes of the court authenticated by the Chancellor. In nonjury trials, “if the error involves a ruling on facts presented to the trial judge, it must be preserved in one of two ways, depending upon how the facts were presented: (1) Through the minutes of the Court, authenticated by the trial judge; (2) Inclusion in a hill of exceptions which the trial judge authenticates. One or the other modes of preservation is necessary.” Bryant v. Central Motor Express, 218 Tenn. 542, 404 S.W.2d 513 (1966); Southern Fdy. Supply v. Spang & Co., 225 Tenn. 447, 470 S.W.2d 187 (1971). In the case of Life & Casualty Insurance Co. v. Gardner, 21 Tenn.App. 244, 108 S.W.2d 1100 (1937), the Court said: “The question is not reviewable here for the reason that the stipulation of fact was not made a part of the bill of exceptions. It is true the paper is shown to have been filed in the lower court and it appears in the transcript, but it is not a part of the technical record, not having been entered on the minutes, and it is not identified nor authenticated by the trial judge’s signature to the bill of exceptions or otherwise. It is not a part of the record.” In the case of Bryant v. Central Motor Express, supra, the Court said: “A close reading of T.C.A. Sections 27-104, and 27-303, as amended, and as applied to this Court by Section 27-304, will show that they do not change the common-law rule with regard to preservation of a stipulation of facts. Just because a motion for a new trial is not necessary, it cannot thereby be assumed that properly authenticated evidence is not necessary when a case is reviewed in this Court. “The purpose of properly authenticated evidence, on the other hand, is to preserve, inviolate and correct, the facts upon which a judge’s decision is rendered, so that reviewing courts can likewise make accurate decisions. The trial judge’s authentication signifies, at least as regards a stipulation, that this was all the evidence heard in the case; it also signifies that some ‘overseer’ was pres-sent to guard against parties stipulating unreasonably.” The final decree of the Chancellor recites that he found the issues, “based upon the stipulated facts,” in favor of appellee and was of the opinion the complaint should be dismissed. The Chancellor further found the appellee was the true owner of the title to the disputed property. It is fundamental the review of any issue of fact depends upon a bill of exceptions authenticated by the trial judge or a minute entry, and in the absence thereof it is conclusively presumed the evidence was sufficient to justify the judgment. Southern Fdy. Supply v. Spang & Co., supra; Pennington v. General Motors Corp., 49 Tenn.App. 240, 354 S.W.2d 479 (1961). Accordingly, we have no alternative other than to affirm the decree of the Chancellor and tax appellants with the costs. DYER, C. J., McCANLESS and FONES, JJ., and LEECH, Special Justice, concur.

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William David ARENDALL et al., Plaintiffs in Error, v. STATE of Tennessee, Defendant in Error. Court of Criminal Appeals of Tennessee. Jan. 3, 1974. Certiorari Denied by Supreme Court March. 18, 1974. CORN’S Petition to Rehear Denial of Certiorari Denied May 6, 1974. Robert T. McGowan, Asst. Public Defender, Mose J. Davie, Nashville, for plaintiffs in error. David M. Pack, Atty. Gen., W. Henry Haile, Asst. Atty. Gen., Tom P. Thompson, Jr., and E. E. Edwards, Asst. Dist. Attys. Gen., Nashville, for defendant in error. OPINION OLIVER, Judge. With the concurrence of the defendants, they were tried simultaneously upon two separate joint indictments, each of which charged them with armed robbery. In case no. 8355, in which they were charged with robbing Betty Jean King and Frances King by use of a deadly weapon, upon conviction of that offense both Arendall and Marlowe were sentenced to 30 years in the penitentiary, and Corn was sentenced to 10 years. In case no. 8361, in which the defendants were charged with robbing Troy E. Lynn by the use of a deadly weapon, upon conviction Arendall was sentenced to 20 years in the penitentiary, to be served consecutive to his sentence in no. 8355; and Marlowe was sentenced to 30 years, to be served consecutive to his sentence in no. 8355; and Corn was acquitted. The defendants have brought their cases to this Court by their appeals in the nature of a writ of error. The only Assignment of Error presented here by Corn, a juvenile, challenges the sufficiency of the evidence to warrant and sustain the verdict of the jury finding him guilty in case no. 8355 — the King robbery. We summarize the material evidence. When Troy E. Lynn closed his Nashville drug store about 9:20 p. m. on November 9, 1971 and got into his car, an unshaven man holding a sawed-off shotgun ran up to him and said, “Give me your money.” As Lynn lowered his hands and began reaching into his pockets, the man said, “Don’t put your hands in your pocket. Hand me the sack on the seat of the car.” When Lynn handed the man the sack, which contained four or five packs of chewing gum and some pegboard hooks, the man told him, “Don’t move from here cause another man has you covered.” The robber then ran between a nearby church and a building next to it. A witness walking in an alley between the drug store and some apartments saw three men, one of them wearing a stocking on his head and carrying a shotgun, run from behind some bushes near the church and get into a 1962 black Chevrolet bearing license plate no. 2-W 4913, and gave that information to Lynn when he saw him near the drug store and found out he had been robbed. Lynn gave the police a description of the robber and of the automobile and the license number. About midnight, he identified Marlowe, then shaven, in a police line-up at which an attorney was present, and as to which the defendants took no exception. The evidence showed that after his arrest and prior to the line-up Marlowe shaved because everyone else in the line-up was shaven. Lynn also positively identified him in open court at the trial. Betty Jean King and her sister-in-law Frances King were employed in King’s Market. About 9:45 the same night, after receiving a telephone call from another member of the family who also operated a grocery store and had a police-band radio and who apparently warned them of the possibility of a robbery, Betty took the money from the cash register and gave it to Frances to hide. Just as the latter began stuffing the money into her blouse, two men, one taller than the other and both wearing stockings on their heads, kicked the door open and ran to the cash register, and one of them said, “Give me the money.” Betty replied, “There it is,” referring to a package containing play money and six dollars in currency. For just such a contingency, she kept the package of play money wrapped with a few real bills. Both women were ordered to lie on the floor, but Betty did not lie down as ordered, but backed up against a cigarette case, “I never did lay down, you know. It’s probably ’cause I knew both of them, you know.” The taller man placed a sawed-off shotgun against her head. The shorter man, holding a sawed-off rifle, said, “Shoot her,” or “Shoot her head off,” and • she heard a “click.” The tall one “clicked that thing back on that gun.” The taller man took the package of money, and upon hearing the sound of an approaching vehicle both of them fled. Betty King recognized the taller man as the defendant Arendall, who had previously traded at the store. She also recognized Corn, who was an acquaintance of her son but she did not know his name. Both women identified Arendall in a line-up that night as the taller robber, and subsequently they both identified Corn in juvenile court as being the shorter man. Both women also identified Arendall and Corn in court. Shortly after the King robbery, the three defendants, riding in a black Chevrolet with license plate no. 2-W 4913, were stopped at a police roadblock and arrested. A sawed-off shotgun and a sawed-off rifle were found in the car. Marlowe had six dollars in his left jacket pocket and $31 in his left pants pocket. Testifying in his own behalf, Arendall did not deny participation in the robberies. He said that he and Corn took Marlowe, his uncle, to the Vol’s Inn in nprth Nashville ; that after leaving the restaurant about 7:00 p. m. he and Corn began drinking and taking “black beauties”; that about 9:00 o’clock that night he went back to the restaurant to get his uncle but did not find him there; that later while they were driving around Corn saw Marlowe on a bridge; that he could not remember anything between the time he started taking the drugs and the time they picked up Marlowe; that the shotgun and rifle were his and he had them in his car because “I didn’t want nobody else to see them”; that he did not suggest the robberies to Corn or threaten him in any way; that he must have passed the drug store after picking up his uncle, and he might have been running behind the drug store; that Marlowe could have been with him carrying a shotgun; that he could not remember and could not say whether he and Corn participated in the two robberies, but remembered taking Marlowe to north Nashville, and that he and Corn then came back toward east Nashville, and remembered seeing Marlowe walking across a bridge and picking him up just before they were arrested. Corn testified that after dinner the evening in question he and Marlowe and Ar-endall drove to a beer joint in north Nashville and Marlowe and Arendall went inside; that some 20 minutes later, at Aren-dall’s request, he also went in and drank a beer and later played pool with Marlowe; that about 8:00 p. m. they started riding around and stopped at another beer joint; that he did not take any pills; that they later stopped near the drug store and Ar-endall and Marlowe began talking about robbing it, because Arendall needed the money; that he told them he did not want to rob it, but Marlowe insisted that he participate and threatened to kill him if he did not do so and waved the shotgun in his face; that, in fear of his life, he went with Arendall to the side of the church; that as Lynn got into his car, Arendall ran to the car aiming his gun at him; that Marlowe came up and asked where Aren-dall was and he told him he was robbing Lynn; that Marlowe ran back to the car, and a few minutes later Arendall came running back and told him to run; that as they drove away Marlowe and Arendall began laughing because they had only got wall hangers; that they next stopped the car near King’s Market, and Marlowe and Arendall said they were going to rob it and both of them told him Marlowe would kill him if he did not help; that he did not remember saying that “I wanted to kill Mrs. King, I didn’t know it, and I still don’t”; that when a car approached they ran to their car and were arrested a few minutes later; that Marlowe told him if he signed any papers he would tear his arms and legs off and kill him; and that the six dollars found in Marlowe’s pocket was the same six dollars wrapped around the play money. Marlowe did not testify or present any evidence. Corn insists that he participated in the King robbery because he was forced to do so by the threats of Arendall and Marlowe that the latter would kill him if he refused to help in the robbery. The law respecting coercion as a defense to a criminal charge is stated in 22 C.J.S. Criminal Law § 44: “While the rule has no application in the case of homicide, and compulsion cannot excuse taking the life of an innocent man, ... in general an act which would otherwise constitute a crime may be excused on the ground that it was done under compulsion or duress, since the necessary ingredient of intention, . is then lacking. “The compulsion or coercion which will excuse the commission of a criminal act must be present, imminent, and impending, and of such a nature as to induce a well grounded apprehension of death or serious bodily harm if the act is not done; it must be continuous, and there must be no reasonable opportunity to escape the compulsion without committing the crime. A threat of future injury is not enough, particularly after danger from the threat has passed. However, it is not necessary that accused show that he was absolutely driven and made to commit the act charged as a crime.” In this case, Corn’s contention that he acted under compulsion by the other two defendants rested on his testimony alone. The jury obviously rejected that theory. Considered in the light of the time-honored rules governing appellate courts in reviewing the evidence in criminal cases when its sufficiency is challenged, Jamison v. State, 220 Tenn. 280, 416 S.W.2d 768; Webster v. State, 1 Tenn.Cr.App. 1, 425 S.W.2d 799; Chadwick v. State, 1 Tenn.Cr. App. 72, 429 S.W.2d 135, in view of Corn’s conduct during the King robbery as shown by this record we cannot say that the jury erroneously or improvidently disbelieved him and believed the ladies King and misjudged that issue. He has failed to carry his burden of demonstrating here that the evidence preponderates against the verdict of the jury in that case. Both Marlowe and Arendall complain that the trial court erroneously overruled Corn’s motion for a severance in which they say they joined. But no such motion nor any action of the trial court with reference to a severance appears in the record. Therefore, this question cannot be considered here because of the fundamental rule that appellate courts are precluded from reviewing alleged errors which are not apparent in the record. Ezell v. State, 220 Tenn. 11, 413 S.W.2d 678; Hardin v. State, 210 Tenn. 116, 355 S.W.2d 105; Roberts v. State, 212 Tenn. 25, 367 S.W.2d 480; Nance v. State, 210 Tenn. 328, 358 S.W.2d 327; Sullins v. State, 1 Tenn.Cr.App. 630, 448 S.W.2d 96. Marlowe and Arendall next contend that the court erred in not declaring a mistrial when Elmer Williams, called as a witness by Corn, testified at first that Marlowe and Arendall stole his shotgun from him on November 6 and later also testified that he was not certain as to the date. However, the record shows that the trial court ordered that Williams’ testimony be stricken from the record and instructed the jury not to consider it for any purpose. The error, if any, was thus cured.» Edwards v. State, 221 Tenn. 60, 424 S.W.2d 783. There is a presumption that the jury does not disregard the court’s instructions not to consider inadmissible evidence. O’Brien v. State, 205 Tenn. 405, 326 S.W.2d 759. There is no merit in the Assignment of Arendall and Marlowe that a picture of Arendall’s car in which they were riding when arrested was improperly admitted in evidence because it showed a decal glued to the inside of the rear window bearing the statement “We don’t give a shit.” The picture shows the rear-end of Arendall’s vehicle and the Tennessee license plate bearing no. 2-W 4913. Since Arendall admitted this was his automobile, we can see no particular probative value in the photograph. However, the law has long been established that the admissibility of photographs is a matter to be determined by the trial court in the exercise of its sound discretion. Palmer v. State, 1 Tenn.Cr.App. 223, 435 S.W.2d 128; Freshwater v. State, 2 Tenn.Cr.App. 314, 453 S.W.2d 446; Morelock v. State, 3 Tenn.Cr. App. 292, 460 S.W.2d 861; Gordon v. State, Tenn.Cr.App., 478 S.W.2d 911. We find nothing in this record even remotely supporting these defendants’ insistence and argument that the decal in question inflamed and corrupted the minds of the jurors to their prejudice. Arendall separately claims the trial court erred in failing to grant his motion to be sent to Central State Psychiatric Hospital before trial for examination. The evidence heard upon that motion is not preserved in the Bill of Exceptions. In the absence of that evidence, quite obviously we cannot pass judgment upon the action of the trial court in overruling the motion. Phipps v. State, Tenn.Cr.App., 474 S.W.2d 154. In the absence of a Bill of Exceptions, the presumption is that the evidence was sufficient to warrant and sustain the verdict. Clark v. State, 214 Tenn. 555, 381 S.W.2d 898. The same principle is clearly applicable here. Finally, in a letter addressed to a member of this Court, Marlowe raises the contention that he was convicted upon the uncorroborated testimony of an accomplice. Aside from the obstacles confronting his effort to raise the question here for the first time, suffice it to say that the evidence hereinabove delineated refutes that contention completely. Let the judgments of the trial court be affirmed. MITCHELL and RUSSELL, JJ., concur.

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Ollie GUNN and Joe L. Gunn, Plaintiffs in Error, v. STATE of Tennessee, Defendant in Error. Court of Criminal Appeals of Tennessee. Feb. 27, 1974. Certiorari Denied by Supreme Court May 6, 1974. Hugh W. Stanton, Jr., Memphis, for plaintiffs in error. David M. Pack, Atty. Gen., Robert H. Roberts, Asst. Atty. Gen., Nashville, Thomas F. Graves, Asst. Dist. Atty. Gen., Memphis, for defendant in error. OPINION GALBREATH, Judge. The trial court dismissed without an evi-dentiary hearing the petition filed by the plaintiffs in error seeking post conviction relief and voidance of their murder convictions predicated on allegations that they were denied justice because they were convicted in a joint trial of second degree murder in which the proof revealed the homicide was accomplished by means of a stick for which only one of them could have been guilty of striking the fatal blow. Not only were the results of the trial made the subject of a direct appeal decided adversely to the petitioners and in which the issues sought to be raised in this proceeding were litigated (see Gunn v. State, Tenn.Cr.App., 487 S.W.2d 666), but at the time the instant petition was filed both petitioners had pending in our Court appeals from the dismissal of separate petitions seeking post conviction relief filed in October and December, 1972, respectively, later affirmed here. See Gunn v. State, Shelby # 4 and Gunn v. State, Shelby # 5, Jackson, October, 1973. Nothing in the petition in this case sets out any factual basis giving rise to a constitutional issue. It is only if such a fundamental ground is alleged to be available that there is any basis for the filing and determination of a petition seeking post conviction nullification of a final judgment of conviction. See T.C.A. § 40-3805. Not only is the petition in this case found to be completely without merit, it strongly appears that the judicial processes of this State are being trifled with by the filing of obviously frivolous, vexatious and groundless litigation. While we would never discourage any prisoner from bringing promptly to the court’s attention any serious charge of constitutional infringement, such filings should always be made with due respect for truth and responsibility. The Clerk is directed to forward copies of this opinion to the Board of Probation and Paroles for inclusion in the records of the petitioners. Affirmed. OLIVER and MITCHELL, JJ., concur.

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Joseph B. MURPHY, Petitioner, v. Otis HAMMONS, Respondent. No. B-4411. Supreme Court of Texas. May 15, 1974. Rehearing Denied June 12,1974. Atchely, Russell, Waldrop & Hlavinka, Victor F. Hlavinka, Texarkana, for petitioner. Harkness, Friedman & Kusin, Donald B. Friedman, Texarkana, for respondent. McGEE, Justice. This is a suit by a pedestrian (Ham-mons) for injuries sustained when struck by an automobile driven by Murphy. The jury made findings of primary negligence and contributory negligence and that each was a proximate cause. Upon the trial court’s granting of Plaintiff’s Motion to Disregard Findings of Contributory Negligence, the trial court entered judgment for the Plaintiff in the amount of $1,085. The court of civil appeals has affirmed this judgment. 501 S.W.2d 442. We reverse and render judgment that Plaintiff take nothing. The sole question before this Court is whether there is any evidence to support the jury’s finding that the Plaintiff Ham-mons failed to keep proper lookout and that such negligence was a proximate cause of the accident in question. On September 19, 1970 in Texarkana, Texas, at approximately 10:30 p. m. Ham-mons and Mr. and Mrs. Major were walking north along the east side of Bowie Street after attending a football game. When the three came to the intersection of Bowie and 14th Streets, Mr. Major continued walking northerly and crossed 14th Street. Hammons and Mrs. Major decided to cross Bowie Street just south of its intersection with 14th Street. The Murphy car was travelling south on an uncontrolled street. The intersection of Bowie Street and 14th Street was controlled by stop signs for traffic on 14th Street. The entire intersection was well lighted by -street lights. The streets were straight. Traffic was heavy. It was a clear night. The Murphy car was not being driven at an excessive rate of speed. Its lights were on. At the time Hammons and Mrs. Major began to cross Bowie Street, traffic driving north on Bowie Street had been stopped by a red traffic signal at the intersection of Bowie and 13th Streets. Hammons was walking on the left side of Mrs. Major as they crossed Bowie Street in a westerly direction. They were walking briskly. When they reached a point just beyond the middle of Bowie Street, Defendant Murphy’s car struck Hammons. Mrs. Major saw the Murphy car in time to jump back out of the way. Mrs. Major gave warning to Hammons of the car’s approach. Mrs. Murphy, a passenger in the car with the driver, Mr. Murphy, stated that Plaintiff Hammons was looking “somewhere ahead.” The only question presented by this case is whether any evidence, direct and/or circumstantial, can be found in the record to support the jury’s finding with respect to Hammons’ failure to keep a proper lookout. In deciding whether there is any evidence we must honor the well established rule which requires that we view the evidence in the most favorable light in support of the verdict and must disregard all evidence which would lead to a contrary result. Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696 (1914); Biggers v. Continental Bus System, Inc., 157 Tex. 351, 303 S.W.2d 359 (1957); Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.Rev. 361. There was nothing to obstruct the Plaintiff’s view to his right as he started to cross the middle of Bowie Street. The streets were straight and well lighted. Defendant Murphy’s car was lighted and approaching on an uncontrolled street. Mrs. Murphy saw Hammons looking “somewhere ahead.” Mrs. Major saw the Murphy automobile in time to step back and to warn Hammons. From this testimony and the facts surrounding this accident, we find that there was some evidence to support the jury’s finding of contributory negligence and proximate cause. The courts below erred in holding that there was no evidence to support these jury findings. Judgments of the courts below are reversed and judgment is here rendered that Plaintiff take nothing.

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Randy Wayne PALAFOX, Appellant, v. The STATE of Texas, Appellee. No. 48558. Court of Criminal Appeals of Texas. June 5, 1974. Rehearing Denied June 19,1974. Paul Tatum, Nacogdoches, for appellant. Jim D. Vollers, State’s Atty., Austin, for the State. OPINION ONION, Presiding Judge. This is an appeal from an order revoking probation. On February 7, 1973, the appellant pled guilty before the court to the offense of burglary. His punishment was assessed at a term of four (4) years, but the imposition of the sentence was suspended and he was placed on probation. Among the conditions of probation imposed was the requirement that he “Commit no offense against the laws of this or any State or of the United States” and “Avoid injurious or vicious habits, including the use of narcotic or habit forming drugs and alcoholic beverages.” On December 3, 1973, the State filed its motion to revoke probation alleging that on December 1, 1973, appellant failed to obey the second probationary condition described above, and on the same date committed the offense of driving a motor vehicle on a public highway while intoxicated and had committed the offense of murder without malice as proscribed by Article 802c, Vernon’s Ann.P.C., then in effect. On December 21, 1973, a hearing was held on said motion at the conclusion of which the court revoked probation, finding that the appellant had violated his probationary conditions as alleged. It was stipulated that one Jesse Ikner, Jr., was dead on arrival at the City Memorial Hospital on December 1, 1973. George Nix, police officer for the City of Nacogdoches, testified that about 11:05 p. m. on December 1, 1973, he responded to a call and went to a location on the Old Tyler Road near Pilot Street, where he discovered Jesse Ikner, Jr., lying in the middle of the road and that he was taken to the hospital. He determined that this was a vehicle-pedestrian accident and he saw the appellant at the scene of the accident and the appellant told him he (appellant) had been the driver of the car involved which had laid down 80 feet of skid marks. Officer Nix testified the appellant had a strong smell of alcohol about his breath, his speech was slurred, and, based on his experience of over eighteen years as a policeman, it was his opinion that the appellant was intoxicated. Appellant testified he was not intoxicat- , ed, that he had been to a birthday party earlier in the evening and had two cups of beer, equivalent to a can and a half. He related the deceased was in the middle of the road and, as he came over a rise, his car lights did not pick up the deceased at first. His wife, who was with him at the time, testified he was not intoxicated. A number of other defense witnesses who were at the party testified that appellant had only two cups of beer and was not intoxicated. Appellant contends that the court abused its discretion in finding that he was driving while intoxicated in light of the cross-examination of Officer Nix, which reflected that he had given the appellant a breathalyzer test fifty to fifty-five minutes after the time he received the call, and that the results of the test showed “0.08,” which was not enough “under the state law” to show he was intoxicated. He contends this evidence constitutes “prima facie evidence of sobriety.” We do not agree. Appellant relies upon the presumption of intoxication as established by the provisions of Article 802f, Vernon’s Ann.P.C., as amended (Acts 1971, 62nd Leg., ch. 709, p. 2340), which provides in part as follows : “Sec. 3. (a) Upon the trial of any criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual physical control of a motor vehicle and while under the influence of intoxicating liquor, evidence of the amount of alcohol in the person’s blood at the time of the act alleged as shown by chemical analysis of his blood, breath, urine, or any other bodily substance, shall be admissible and if there was at that time 0.10 percent or more by weight of alcohol in the person’s blood, it shall be presumed that the person was under the influence of intoxicating liquor. “(b) Chemical analysis of the person’s breath, to be considered valid under the provisions of this section, must be performed according to methods approved by the Texas Department of Public Safety and by an individual possessing a valid certificate issued by the Texas Department of Public Safety for this purpose. The Texas Department of Public Safety is authorized to approve satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analysis, and to issue certificates certifying such fact. These certificates shall be subject to termination or revocation, for cause, at the discretion of the Texas Department of Public Safety.” First, it is observed that the proper predicate for the introduction of such test was not laid. There was no showing that Officer Nix was certified to operate the machine by possessing a valid certificate issued by the Department of Public Safety for this purpose or that the chemical analysis of the. appellant’s breath was performed according to methods approved by the Department of Public Safety. Further, there was no showing of the use of properly compounded chemicals, the existence of periodic supervision over the machine and operation by one who understands the scientific theory of the machine and proof of the results of the test by a witness or witnesses qualified to translate and interpret such results so as to eliminate hearsay. See Hill v. State, 158 Tex.Cr.R. 313, 256 S.W.2d 93 (Tex.Cr.App.1953). Next, we note the test was not administered until almost an hour or so after the alleged offense, and the court had before it the opinion testimony of the experienced officer that appellant was intoxicated when he observed him at the scene of the offense. It is well established that at revocation of probation hearings the trial judge is the trier of the facts and the judge of the credibility of the witnesses and the weight to be given to their testimony, Maddox v. State, 466 S.W.2d 755 (Tex.Cr.App.1971), and cases there cited. And i't is further presumed that the trial judge disregarded inadmissible evidence. Further, even if the results of the breathalyzer test were properly admitted, in absence of an objection by the State, the fact that the results showed “0.08” would not establish that appellant was not intoxicated, but only that they fell short of establishing the presumption of intoxication prescribed by law when the breathalyzer results reflect “0.10 percent or more by weight of alcohol” in a person’s blood. The court had sufficient evidence before it to justify its finding that appellant was driving while intoxicated in violation of his probationary conditions. Such finding alone would justify the revocation of probation. We need not therefore consider appellant’s contentions that the probationary condition relating to the use of alcohol was vague and uncertain and that the State failed to prove a causal connection between appellant’s intoxication and the ultimate death of the deceased so as to show the offense of murder without malice under Article 802c, Vernon’s Ann. P.C., or consider whether the doctrine of carving has application under the circumstances of the case. Finding that the trial court did not abuse its discretion, the judgment is affirmed.

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Larry Ray MOON, Appellant, v. The STATE of Texas, Appellee. No. 48318. Court of Criminal Appeals of Texas. June 5, 1974. Sol Balias, Dallas, for appellant. Henry Wade, Dist. Atty. and James D. Scott, Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION DOUGLAS, Judge. This appeal is from a conviction for the offense of driving a motor vehicle upon a public road while intoxicated. The punishment was assessed by the jury at six months in jail and a fine of $150.00. The record before this Court establishes that appellant, prior to the trial of the case at bar, had been convicted of the misdemeanor offense of driving a motor vehicle upon a public road while intoxicated. As a result of that conviction, he received probation as provided by Article 42.13, Vernon’s Ann.C.C.P. Prior to the trial of the present case, appellant had been discharged from that probation and the court had set aside the finding of guilt and dismissed the accusation pursuant to Section 7(a) of Article 42.13. The appellant did not apply for probation in the present case. Johnny R. Flowers testified that he was driving near Fair Park in Dallas at approximately 6:00 o’clock and appellant, who was driving a 1955 Chevrolet, attempted to pass several times but the traffic was too heavy. When Flowers stopped for a red light at an intersection, appellant was unable to stop and drove into the back of Flowers’ car. An officer on duty at Fair Park heard the collision and went to investigate. Other officers arrived. Flowers and the officers testified that appellant was intoxicated and cursed the officers. The appellant testified that he was in the back seat and his brother Alvin was driving at the time. His wife and Alvin testified to the same thing. Appellant admitted that he had drunk six or seven beers. Appellant’s sole contention is that the court erred in admitting proof of a prior misdemeanor conviction for driving while intoxicated where he was given probation, because he had been discharged from probation. He argues that the proof of his prior misdemeanor probation was not admissible because Article 42.13 provides, in part: “Section 7(a). When the period and terms of a probation have been satisfactorily completed, the court shall, upon its own motion, discharge him from probation and enter an order . . . setting aside the finding of guilty and dismissing . . . the information against the probationer. “(b). After the case against the probationer is dismissed by the court, his finding of guilty may not be considered for any purpose except to determine his entitlement to a future probation under this Act, or any other probation Act.” The State contends the controlling statute to be Article 37.07, V.A.C.C.P., which provides in substance: “Section 3(a). Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered . . . as to the prior criminal record of the defendant. . The term prior criminal record means a final conviction in a court of record, or a probated or suspended sentence that has occurred prior to trial, or any final conviction material to the offense charged.” In Glenn v. State, Tex.Cr.App., 442 S. W.2d 360, this Court wrote: “We interpret such statute to mean that any probated or suspended sentence which has occurred prior to trial and whether successfully completed or not may be known to the judge or the jury assessing punishment. See also Article 42.12, Sec. 7, V.A.C.C.P.” See Dean v. State, Tex.Cr.App., 481 S.W. 2d 903; Taylor v. State, Tex.Cr.App., 470 S.W.2d 663; Macias v. State, Tex.Cr.App., 451 S.W.2d 489, and McKenzie v. State, Tex.Cr.App., 450 S.W.2d 341. Appellant contends that these cases are distinguishable from the case at bar because in each defendant was tried for a felony offense after having received a felony probation. Article 42.12, supra, provides in substance: “ . . . except that proof of his said conviction or plea of guilty shall he made known to the court should the defendant again be convicted of any criminal offense.” “Section 7. . Upon the satisfactory fulfillment of the conditions of probation, and the expiration of the period of probation, the court, by order duly entered, . . . shall discharge the defendant. In case the defendant has been convicted or has entered a plea of guilty . . ., and the court has discharged the defendant hereunder, such court may set aside the verdict . and shall dismiss . . . the indictment against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted or to which he has pleaded guilty, except that proof of his said conviction or plea of guilty shall be made known to the court should the defendant again be convicted of any criminal offense.” The trial court in admitting the evidence of which complaint is made relied on Valley v. State, Tex.Cr.App., 448 S.W.2d 474. In Valley, this Court permitted the State to prove at the penalty phase after a conviction for robbery by assault, that defendant had been convicted of unlawfully carrying a pistol, had received probation, had complied with its terms, and the conviction had been set aside. Such proof was permitted under Article 37.07. Article 37.07 permits the introduction of evidence of appellant’s prior misdemeanor probation. Article 42.13, in part, prohibits the consideration of such evidence “except to determine his entitlement to a future probation.” The Legislature amended the provisions of Article 37.07 to provide a definition of the term “prior criminal record” after the enactment of Article 42.13. Article 37.07 relates to the admissibility of a prior criminal record, both felony and misdemeanor. Article 37.07, supra, is the last enactment upon the subject. We hold that it controls. The fact that the terms of probation in a misdemeanor case have expired and the probation has been set aside does not prohibit the prior conviction being made known to the jury at the penalty stage of the trial in a misdemeanor case. No error has been shown. The judgment is affirmed.

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Willie Henry McCLENDON, Appellant, v. The STATE of Texas, Appellee. No. 47376. Court of Criminal Appeals of Texas. Feb. 27, 1974. On Motion for Rehearing May 29, 1974. Rehearing Denied June 19,1974. Jon Mercer, Houston, for appellant. Carol S. Vance, Dist. Atty., James C. Brough, Donald Lambright, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and Buddy Stevens, Asst. State’s Atty., Austin, for the State. OPINION DOUGLAS, Judge. This is an appeal from a conviction for murder.' The court assessed the punishment at fifteen years. The appellant contends that self-defense was shown as a matter of law; a variance existed between the allegation of the name of the deceased in the indictment; a remote felony conviction was used to impeach him; and, the court erred in refusing to charge on murder without malice. The second contention will be considered first. The indictment alleged that the appellant killed Mose Dineal by shooting him with a gun. The name of the deceased was proved by several witnesses to be Mose Dineal Howard. The wife of the deceased testified that he was also known as Mose Dineal. Appellant cites several cases and relies upon McGinnis v. State, 127 Tex.Cr.R. 621, 78 S.W.2d 978, which refers to the statement in the original Branch’s Penal Code, Section 460 (Section 480, page 468, Branch’s Ann.P.C.2d) : “If the injured party was generally known by the name alleged it is immaterial what the true name was.” (Emphasis added) In 1 Branch’s Ann.P.C.2d, Section 480, supra, it is written: “The evidence is insufficient if the name of the injured party is not proved as laid either by proof that he was known or sometimes called by the name alleged or that it was in fact his name or of the same sound.” and, “The name by which a party is known or sometimes called is in law his name.” In Johnson v. State, 126 Tex.Cr.R. 356, 71 S.W.2d 280, this Court held that where the proof shows that the victim was known by two names either may be alleged in the indictment. We hold that there was sufficient proof for the jury to conclude that the deceased was also known as Mose Dineal. To understand the contention that self-defense was shown as a matter of law and that the evidence raised an issue of murder without malice, the testimony will be detailed. The appellant and approximately 50 people were at a New Year’s Eve party at the L. J. Lounge in Houston. Shortly before the homicide, L. J. Prudhomme, the owner of the lounge, put Ronnie, a friend of the deceased, outside, apparently because “Ronnie was bugging the appellant and was making a commotion.” About an hour later, Mose, the deceased, came in and had a discussion with the appellant. While they were talking, appellant shot him with a .25 caliber pistol. The bullet hit him in the chest “one inch below the supersternal notch . . . that is the little V shaped indention . . . between the inner edge of the two collar bones” one inch below and one half inch to the left of the midline. The bullet went downward through the right lung and out between the fifth and sixth ribs and lodged just under the skin in the right side of the back some four inches to the right of the midline. The deceased was unarmed. Jimmy Williams, a witness called by the appellant, testified that Mose came into the lounge and asked appellant what was wrong with him and Ronnie. Appellant replied that nothing was wrong. Then Mose asked the question again and when appellant repeated the answer, “. then Mose told Willie to shut up and when he did that Willie stood up, and Mose put his hand in his pocket, and Willie came out with his pistol and shot him.” Williams testified that he thought Mose was going to kill Willie (the appellant). The appellant testified that he had the pistol the night in question because he had been collecting rent and forgot he had it. He related that he was in the lounge talking to Jimmy Williams when Mose came over and touched him on the back and asked what he had done to Ronnie. He also testified that when he told Mose that he had not done anything to Ronnie that Mose cursed him. He did not see a gun but he thought Mose reached for one to kill him. He testified that he was scared and feared for his life, and that is when he reached in his pocket, got the gun and shot Mose. We hold that the evidence does not show self-defense as a matter of law. The court charged on self-defense. The jurors are the judges of the credibility of the witnesses. They chose not to believe the appellant’s testimony on self-defense. It would have to be a rare case for self-defense to be shown as a matter of law especially where an unarmed man has been shot. We also hold that the court did not err in refusing to charge on murder without malice. There is no testimony that the appellant was acting under the influence of sudden passion. His reason for the shooting was self-defense. No such charge was required. Jones v. State, 504 S.W.2d 906 (1974). Prior felony, convictions against the appellant were shown. The date of the offense in the present case was December 31, 1970. The trial started October 11, 1971. The appellant was convicted in 1948 in Bastrop County for the offense of murder; his punishment was assessed at life. He was released from this conviction in 1959. He contends that since he had been released from confinement more than ten years before his trial, the proof of the prior conviction was error because of remoteness. In most instances where a prior felony conviction has been used for impeachment, it has been held remote if the time of one’s discharge from such conviction is more than ten years. See 62 Tex.Jur.2d, Witnesses, Section 340, page 381; Penix v. State, Tex.Cr.App., 488 S.W.2d 86; Livingston v. State, Tex.Cr.App., 421 S.W.2d 108; Haney v. State, 152 Tex.Cr. 63, 211 S.W.2d 215. However, the often referred to ten-year rule of thumb is not always followed. Each case must rest upon its own circumstances. See Dillard v. State, 153 Tex.Cr.R. 134, 218 S.W.2d 476. If more than ten years have, elapsed since the discharge date of a prior conviction and if the witness has not reformed, proof of such prior conviction may be shown for impeachment purposes. In the present case, the facts are different from the ordinary case. The appellant testified on direct examination that he had not been convicted for a felony offense in this or any other state during the last ten years, and that he had not been in any trouble with the law during that time. On cross-examination, he testified that in 1968 in Long Beach, California, he pled guilty and was convicted for “displaying a firearm in a rude and threatening manner.” In that case he served ten days in jail and paid a fine. He also testified that during the ten-year period he had been convicted for driving while intoxicated in California. Appellant contends that the California misdemeanor convictions were not offenses involving, moral turpitude and could not have been introduced had he not testified that he had no trouble with law enforcement officers during a ten-year period prior to the present trial. The prior conviction for displaying a firearm in a rude and threatening manner is sufficient to show that the appellant had not reformed after he was released from his murder conviction. This conviction (as well as the driving while intoxicated conviction) was properly introduced under the facts of this case. See Crisp v. State, Tex.Cr.App., 470 S.W.2d 58. Such proof shows lack of reformation. We hold that the admission of evidence to show the prior misdemeanor convictions was not error. Under these circumstances, the court did not err in admitting proof of the prior murder conviction. The judgment is affirmed. MORRISON, Judge (dissenting). Appellant’s gratuitous statement that he had not been in any trouble with the law during the last ten years clearly authorized proof of any “trouble with the law” which appellant had experienced during that period, but it did no more. Only a felony conviction or one for an offense involving moral turpitude will revitalize remote convictions. Livingston v. State, 421 S.W.2d 108. The rule of remoteness is based upon reason. An accused should not be impeached by convictions which occurred so far in the past that they do not shed any light on his credibility at the time of trial. Offenses which do not involve moral turpitude have no bearing on the credibility of an accused and should not be employed as they have been by the majority to revitalize old crimes. I would reverse the conviction. ONION, P. J., joins in this dissent. OPINION ON APPELLANT’S MOTION FOR REHEARING GREEN, Commissioner. On motion for rehearing, appellant renews his contention that the judgment should be reversed because of the admission in evidence of appellant’s “remote” felony conviction of murder for purposes of impeachment. The record reflects that the instant trial commenced October 11, 1971, and that the deceased was killed on December 31, 1970. Appellant, as a witness for himself at the guilt stage, testified to facts raising the issue of self-defense. On direct examination, he testified that he had not been convicted of a felony in this or any other state during the past ten years, and that he had not been in any trouble with the law during that time. On cross-examination, he stated that he had been convicted of “displaying a fire-arm in a rude and threatening manner” in California in 1968. He also stated that he had been convicted of driving while intoxicated in California on June 9, 1968. Both of these convictions, as the State admits, were for misdemeanors which do not involve moral turpitude. Stephens v. State, Tex.Cr.App., 417 S.W.2d 286; Hunter v. State, 168 Tex.Cr.R. 160, 324 S.W.2d 17; Burton v. State, 149 Tex. Cr.R. 327, 194 S.W.2d 398; Porter v. State, 152 Tex.Cr.R. 540, 215 S.W.2d 889; Williams v. State, 130 Tex.Cr.R. 86, 91 S. W.2d 709 ; 62 Tex.Jur.2d, Witnesses, § 271, p. 243. Thereafter, the State was permitted to prove, over appellant’s objection of remoteness, that on December 22, 1948, appellant was convicted of murder in Texas and that he served time in the State penitentiary until November 10, 1958, when he was released on parole. The record reflects that his parole was terminated in 1967. In determining remoteness of a conviction the computation of time should begin after release from prison. King v. State, Tex.Cr.App., 425 S.W.2d 356, 357. As stated in the majority opinion on original submission, “In most instances where a prior felony conviction has been used for impeachment, it has been held remote if the time of one’s discharge from such conviction is more than ten years. See 62 Tex.Jur. 2d, Witnesses, Section 340 page 381; Penix v. State, Tex.Cr.App., 488 S.W.2d 86; Livingston v. State, Tex.Cr.App., 421 S.W.2d 108; Haney v. State, 152 Tex.Cr. 63, 211 S.W.2d 215. However, the often referred to ten-year rule of thumb is not always followed. Each case must rest on its own circumstances. See Dillard v. State, 153 Tex.Cr.R. 134, 218 S.W.2d 476.” In Dillard, supra, this Court held to be inadmissible for impeachment and prejudicial a prior conviction of a violation of the Dyer Act; i. e., transporting a stolen automobile over the State line. The defendant had been released from the penitentiary ten years prior to the subsequent trial. The opinion states that other elements must be considered in addition to the passage of ten years in determining whether this was error, and that the facts of each case must be looked to and considered in determining the question of remoteness. The judgment was reversed. In Crisp v. State, Tex.Cr.App., 470 S. W.2d 58, tried in March, 1970, a 1956 felony conviction was held to have been properly admitted to impeach the defendant where it was also proved that he had been convicted in 1961 of a misdemeanor involving moral turpitude, and in 1962 of a felony. The Court reiterated the rule that the question of remoteness is to be determined in the light of the facts of each case, and evidence of lack of reformation or subsequent conviction of another felony or misdemeanor involving moral turpitude causes the prior conviction not to be subject to the objection of remoteness. A conviction of a misdemeanor which does not involve moral turpitude has not been considered as evidence of a lack of reformation. See Livingston v. State, 421 S.W.2d 108; Blessett v. State, 168 Tex. Cr.R. 517, 329 S.W.2d 434. We quote from Bustillos v. State, Tex.Cr.App., 464 S.W.2d 118, 119, as follows: “Since the early case of Lights v. State, 21 Tex.App. 308, 17 S.W. 428 (1886-Court of Appeals), the rule was established that the credibility of a witness in a criminal case could be attacked by a showing'that he had been convicted of a crime. There are, however, some limitations upon the rule which developed. The conviction must be for a felony or a misdemeanor involving moral turpitude, the conviction must be final and must have occurred at a time sufficiently recent to have some bearing on the present credibility of the witness and the evidence must be limited to the fact of the conviction itself and details thereof may not be shown.” In Penix v. State, 488 S.W.2d 86, 88, we said: “Even though this court has never ‘undertaken to fix arbitrarily and absolutely a space of time which would characterize such testimony as too remote’, there seems to have developed a rule of thumb or guideline that such should not be admitted if the time lapse exceeds ten years. See, e. g., 62 Tex.Jur.2d, Witnesses, Section 340, at page 381, where it is written that: “ ‘Nevertheless, the tendency of many decisions is to hold that an interval of ten years, counting from the time of release from jail if the defendant served a term of imprisonment, renders the previous conviction unavailable for impeachment, “See, e. g., Livingston v. State, Tex.Cr. App. 421 S.W.2d 108; Haney v. State, 152 Tex.Cr.R. 63, 211 S.W.2d 215. “On the other hand, the tendency has been that the trial court’s discretion to admit such conviction has generally been upheld if the period of time was less than ten years. . . . ” In Penix, a felony conviction was held to be admissible for impeachment when 9 years 8½ months had elapsed from the date of defendant’s release from prison to the date of the trial. We repeat what was said in the dissenting opinion in this case on original submission: “Appellant’s gratuitous statement that he had not been in trouble with the law during the last ten years clearly authorized proof of ‘any trouble with the law’ which appellant had experienced during that period, but it did no more. Only a felony conviction or one for an offense involving moral turpitude will revitalize remote convictions. Livingston v. State, 421 S.W.2d 108.” In Livingston v. State, supra, the defendant appealed from a conviction of assault with intent to murder. The trial court, over defendant’s objections, permitted the State to prove for impeachment purposes that in 1963 the defendant had been convicted of carrying a pistol, and previous thereto he had served time in the penitentiary from 1952 to 1955 on a murder conviction. The instant trial was in 1967. In reversing the judgment and holding that the misdemeanor conviction did not involve moral turpitude, and that the murder conviction was too remote to be used for impeachment, this Court quoted with approval from Blessett v. State, supra, as follows: “The testimony on the hearing in the absence of the jury apprised the trial court of the remoteness of the 1946 conviction and the objection that it was too remote when offered before the jury should have been sustained. 45 Tex.Jur. 235, sec. 318; 1 Branch 2 Ed., 213-214, sec. 192; Abercrombie v. State, 159 Tex.Cr. R. 417, 264 S.W.2d 727; Stevens v. State, 162 Tex.Cr.R. 19, 280 S.W.2d 283. “The testimony introduced by the appellant, without objection, that she had not within the last ten years been convicted of a felony did not authorize the state to then prove that she had been convicted of murder over twelve years before the commission of the instant offense, unless there was first a showing that such prior conviction was not too remote due to a conviction of a felony or of a misdemeanor involving moral turpitude occurring since said conviction. 1 Branch 2 Ed., p. 210, sec. 190, and p. 213, sec. 192. “The testimony of appellant’s prior conviction was of a prejudicial nature and its admission in evidence calls for a reversal.” In Blessett, the accused was interrogated in the absence of the jury about several misdemeanor convictions not involving moral turpitude, and the trial court stated that proof of such misdemeanors “takes this out of the general rule with regard to remote convictions.” As above stated, this Court held that an intervening conviction of a misdemeanor not involving moral turpitude would not perform that task. We hold that under the fact situation in this case, the trial court erred to the prejudice of appellant in admitting in evidence at the guilt stage for impeachment the felony conviction of appellant where 12 years 11 months had elapsed between his release from prison and the trial. In view of our disposition of the case, it is not necessary that we pass on the other contention raised in appellant’s motion. The motion is granted. The judgment is reversed and the cause is remanded. Opinion approved by the Court. DOUGLAS and ODOM, JJ., dissent to the reversal of this conviction for the reasons set out in the opinion on original submission. . Where an issue as to the name of the deceased person is raised, it is proper for the court to submit it to the jury for its determination. McGinnis v. State, 78 S.W.2d 978; Johnson v. State, 71 S.W.2d 280. No such issue was requested. . See Ochoa v. State, Tex.Cr.App., 481 S.W.2d 847, 850.

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Kenneth Lee PATTERSON, Appellant, v. The STATE of Texas, Appellee. No. 47750. Court of Criminal Appeals of Texas. March 13, 1974. Dissenting Opinion on Denial of Rehearing May 22, 1974. Tom A. Boardman, Don Wilmarth, and Lawrence B. Mitchell, Dallas, for appellant. Henry Wade, Dist. Atty., and Robert T. Baskett, Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., and Buddy Stevens, Asst. State’s Atty., Austin, for the State. OPINION MORRISON, Judge. Conviction is for murder; the punishment, life. Appellant’s first contention is that the trial court erred in refusing to grant a mistrial upon admission of an oral confession not taken in compliance with Art. 38.-22, Vernon’s Ann.C.C.P. Appellant introduced the following testimony on cross-examination of the State’s witness Officer Burks, to-wit: “Q You just came in and said T want the truth, nothing but the truth,’ right? “A Yes, sir. “Q All right. When you said this to Mr. Patterson [appellant], what, if anything, did he say to you ? “A He told me that he understood that I was like his father. His father had been a policeman and that’s all his father ever wanted was the truth.” On re-direct examination, the State elicited the following testimony from this witness, to-wit: "Q Now, this comment he [appellant] made about his father, could you tell the jury what he said ? “A He told me that he understood, that I was like his father; his father was a policeman and that’s all he ever wanted was the truth. “Q Did he then tell you that he had killed this woman? [Emphasis Added] “A Yes, sir, he did.” Appellant then objected to this testimony as being a violation of Art. 38.22, supra. The court instructed the jury to disregard this testimony, but denied appellant’s motion for a mistrial. Appellant, having inquired of the witness what it was the appellant told him, is in no position to complain. It appears that the oral confession immediately followed the statement elicited by the appellant. Appellant relies on Roman v. State, Tex.Cr.App, 503 S.W.2d 252. In that case, defendant’s attorney asked the witness on cross examination if an informer had told him that J. C. might be in the defendant’s apartment when the informer arrived. Thereafter, over defendant’s hearsay objection,' on redirect the witness was allowed to testify that the informer told him on another occasion he had been to the defendant’s apartment and had seen a large quantity of marihuana and had seen defendant and J. C. rolling, smoking and packaging it. The Court there held that the rationale of Art. 38.24, V.A.C.C.P., would not permit the introduction of hearsay information of the defendant’s criminal activities since they involved a different subject than was covered by the portion of the conversation brought out by the defendant. In the instant case, however, the appellant introduced testimony on cross examination that the appellant had told Officer Burks that all he wanted was to tell the truth about the offense under investigation. The offense under investigation was a murder' case for which appellant had previously been charged, and anything further said by appellant relating to the same subject matter became admissible by virtue of appellant’s counsel’s question. Appellant’s attorney, having introduced the self serving statement that appellant was motivated to tell the truth, is in no position to object when the balance of the conversation as to appellant’s version of the truth, as related to Officer Burks, is introduced by the State. Appellant’s broad question on cross examination would even have authorized the witness to relate the oral confession. Appellant asked the witness to relate what the appellant said to him. The appellant is in no position to complain when the State asks the witness in effect to complete the answer to a question that appellant had previously posed. Furthermore, the appellant failed to object prior to the witness’ answer. If there had been a timely objection, there would have been only the question but no evidence on the oral confession. Appellant cannot wait to see if the answer will be favorable before he objects. The record is silent as to good cause for the failure to timely object. It is incumbent upon appellant to show good reason for the failure to timely object if he desires to avoid a waiver of the matter. We note also that the court instructed the jury to disregard the oral confession. Appellant next complains that the State engaged in improper jury argument. The argument in question is as follows: “MR. ORMESHER: . . . And he’s progressed to the point of no return. If you look at the facts of this case, you can see one thing and that’s that Kenneth Patterson is degenerated to the point where he’s almost to the worst of the sadistic killers, those that would eat human flesh. “MR. ATWOOD: Your Honor, for Heaven’s sake— “MR. ORMESHER: I base that on the evidence here when he— “MR. ATWOOD: Your Honor, may I have an objection to the remark of counsel ? “THE COURT: Yes, sir. “MR. ATWOOD: I ask the jury to disregard it. “THE COURT: Overrule objection. “MR. ORMESHER: I have based that comment on what you saw here in these photographs today, the biting of human flesh. It’s just that far away from what I was talking about, the worst of sadistic killers.” Dr. Hoffman had testified that the breasts of the deceased had been severed from the body and that a bite mark was on the severed left breast. He further testified that he placed a mold of appellant’s teeth on the wound and the mold fit the wound. The appellant made only a general objection, which is not sufficient. Alejandro v. State, Tex.Cr.App., 493 S.W.2d 230. Also, as noted by the quoted argument hereinabove, the State repeated in essence the same argument with no objection. We have, however, reviewed the evidence of Dr. Hoffman, who described the condition of the deceased, and find that the murder was of such a brutal nature that the argument complained of, if error, is not such as to call for a reversal of this conviction. Appellant next complains of the following closing argument of the State: “Did you have a doctor come down and tell you from jail and don’t think we’re not covered with nurses and doctors up there that can come examine people. The court overruled appellant’s objection that the argument was outside the record. Appellant argues that such argument was prejudicial to him on the issue of the coercion of the written confession and that it was outside the record. The first line of the above argument is a fair comment on the failure of appellant to produce a doctor to verify his claims of physical abuse. The following two lines do appear to be outside the record, but do not call for reversal. Appellant states in his brief that there were no symptoms of physical abuse and a doctor or nurse could add nothing to the evidence. The fact then of whether appellant produced a doctor or of how many doctors or nurses were available to appellant was irrelevant to any issue in this case. The statement of facts in this case runs in excess of two thousand four hundred pages. Some forty-five witnesses were called. The trial lasted nearly two weeks. We fail to see how appellant could have been harmed by this one short-lived instance of jury argument on this relatively insignificant matter. Appellant in his next two grounds of error complains of the court’s allowing Dr. Grigson to testify as a rebuttal witness in violation of Art. 46.02(2) (f)(1) V.A.C. C.P. and the Sixth Amendment to the Federal Constitution. Prior to trial, Dr. Grigson, a psychiatrist, conducted a mental examination of appellant at the State’s request. The trial court on its own motion over appellant’s objection held a pre-trial sanity hearing with the jury returning a verdict finding the appellant to be “sane at the time of this trial.” During the trial on the merits before a different jury, the appellant called as a witness Dr. Siegel, a psychologist. Prior to the substantive portion of this witness’ testimony, the court admonished appellant’s counsel as follows: “THE COURT: . . . Counsel, I think you’re opening up an area if you go into it certainly the State would be entitled to call rebuttal witnesses. Dr. Siegel then testified that in his opinion the particular crime in question would be out of character for appellant’s type of personality and he gave his reasons for arriving at this conclusion. The State on rebuttal called Dr. Grigson, who testified that appellant has a socio-pathic personality disorder; that the appellant’s type of personality is such that he would commit exactly the type of crime for which he was charged;- and that he has a tremendous anger toward women. It is this testimony to which appellant objects. By introducing Dr. Siegel’s testimony, appellant waived any objection to Dr. Grigson’s testimony. Brown v. State, Tex.Cr.App., 457 S.W.2d 917. We note that the court adequately forewarned appellant of these consequences if he persisted in going forth with Dr. Siegel’s testimony. The cases of Gephart v. State, 157 Tex. Cr.R. 414, 249 S.W.2d 612, and Stultz v. State, Tex.Cr.App., 500 S.W.2d 853, are controlling and contrary to appellant and contain a full discussion of the constitutional contentions made by appellant. Appellant introduced expert evidence of appellant’s lack of mental capacity to commit this crime and the State properly rebutted with expert testimony on the same subject. Art. 46.02(2) (f) (1), V.A.C.C.P., should not be interpreted as an exclusive procedure. We overrule appellant’s grounds of error four and five. The next two grounds of error relate to the following portion of the evidence: “A critical phase of the State’s case centered on evidence of a bite mark on the severed left breast of the deceased. Dr. Hoffman testified that a wound on the left breast was a human bite mark. Officer Burleson took the Defendant to Southwestern Medical School on April 1, 1970, to obtain a second cast of the Defendant’s teeth. Dr. Hoffman asserted that bitemarks are characteristic as fingerprints. Dr. Hoffman placed a mold of the Defendant’s teeth on the wound, the mold fit the wound. The doctor admitted that there might be other persons whose teeth would match the bitemarks. Dr. James Bertz made a second cast of the Defendant’s teeth. He stated that the wound had to have been made by five teeth just like the Defendant’s. The witness stated that, due to amputation and other factors, the marks on the breast could have either shrunk or stretched by as much as %o’s of a millimeter. The Defense called Dr. Jim Beaver, who was unable to match the plaster mold of the breast. He did match a mold of one of his patients to the marks on the mold of the breast. Dr. Norman Biggs, Chairman of the Department of Anatomy, Baylor University College of Dentistry, testified that the distance between the marks on the breast could not be accurately measured, that a variation of as much as one millimeter would exist. He stated that the method of measurement used by the State’s witnesses was not scientifically precise. It was the witness’ opinion that identification by teeth marks is not as reliable as fingerprints, even if all thirty-two teeth are compared and that five teeth marks are not enough to identify someone.” Appellant first contends that the trial court erred in admitting evidence of a mold or cast of appellant’s teeth taken in violation of the search and seizure provisions of the Fourth and Fourteenth Amendments to the Federal Constitution. We hold that to require the appellant to produce a mold of his teeth is not in violation of any constitutional protection. In Olson v. State, Tex.Cr.App., 484 S.W.2d 756, there was an extended discussion of the different kinds of physical evidence that are and are not within the protection of the Constitution. There we held handwriting examples to be compellable. We hold requiring a defendant’s teeth marks is likewise compellable. Appellant next urges error in the admission into evidence of testimony comparing the teeth marks on the deceased’s body with appellant’s teeth marks on the mold, because the test results were not sufficiently scientifically proved for reliability. We held similar evidence admissible in Doyle v. State, 159 Tex.Cr.R. 310, 263 S.W.2d 779. The objection goes to the weight rather than to the admissibility. See Polk v. State, Tex.Cr.App., 500 S.W.2d 825. Furthermore, appellant’s written confession containing an admission that he bit the deceased on the breast renders the error, if any, harmless. Appellant next complains that the trial court erred in admitting evidence of the bite marks in that the State suppressed evidence by not preserving the original breast of the deceased from which the bite mark mold was taken. He urges that his expert witnesses were seriously handicapped by not having the original breast tissue to work from as did the State’s expert witnesses. We overrule appellant’s contention. See Murray v. State, Tex.Cr.App., 505 S.W.2d 589 (Decided February 13, 1974). There is no showing that the State deliberately suppressed or destroyed the evidence or even that it could have been reasonably preserved. Appellant next complains that the court improperly charged the jury at the guilt stage of the trial on the issue of murder with and without malice. We have previously held that the issue of malice is proper on the punishment rather than the guilt stage of the trial. However, absent appellant’s objection, the matter was waived. Cobbs v. State, Tex.Cr.App., 495 W.2d 900. Finding no reversible error, the judgment is affirmed. ODOM, Judge (dissenting). The judgment should be reversed and the cause remanded on appellant’s first ground of error. I dissent. ROBERTS, J., joins in this dissent. ON APPELLANT’S MOTION FOR REHEARING ROBERTS, Judge (dissenting in part and concurring in part). Appellant urges this Court to reconsider his ground of error # 1, relating to testimony received concerning an oral confession made by the appellant. I have done so and conclude that the Court erred in its disposition of this ground. The reliance by the majority on original submission upon Art. 38.24, Vernon’s Ann.C.C.P., was misplaced and totally ignores the rule of law as properly announced in the unanimous decision of this Court in Roman v. State, 503 S.W.2d 252 (Tex.Cr.App.1974). As was stated in the original majority opinion, the controversy centers around the following colloquy, which occurred as Officer Burks testified: [Defense Counsel cross-examining] “Q You just came in and said T want the truth, nothing but the truth,’ right ? “A Yes, sir. “Q All right. When you said this to Mr. Patterson [appellant], what, if anything, did he say to you ? “A He told me that he understood that I was like his father. His father had been a policeman and that’s all his father ever wanted was the truth.” On re-direct examination, the State elicited the following testimony from this witness, to-wit: “Q Now, this comment he [appellant] made about his father, could you tell the jury what he said ? “A He told me that he understood, that I was like his father; his father was a policeman and that’s all he ever wanted was the truth. “Q Did he then tell you that he had killed this woman? [Emphasis added] “A Yes, sir, he did.” The majority opinion states that the appellant told Officer Burks “that all he wanted was to tell the truth about the offense under investigation” and that appellant introduced the fact that “[he] was motivated to tell the truth.” I cannot agree that the record actually supports such statements. A reading of the record reflects that prior to the colloquy quoted above the following cross-examination of Burks occurred: “Q When you first walked into the door and Mr. Patterson was in the interrogation room, would you tell us what you said to him, please, sir. ? “A I told him I was a police officer and that I was interested in the truth; I didn’t want anything but the truth from him. “Q The truth and nothing but the truth ? c “A Yes, sir. “Q Did you tell him you didn’t want any more damn lies ? “A I probably did tell him I didn’t want to hear any lies, yes, sir. “Q Well, when you said this to Mr. Patterson did you say it in a pleasant tone? “A In a matter of an interview, I told him I didn’t want him to lie to me, that I just wanted the truth.” It is illogical to say that because the appellant thought of the officer as a father-image, and that his own father always sought out the truth, an oral confession at that point sheds light on the same subject. Sanders v. State, 458 S.W.2d 193 (Tex.Cr.App.1970). What the majority opinion on original submission overlooked is the fact that the subject involved at this point in the record was the amount of coercion, if any, which prompted the appellant’s written confession. As was stated in Roman v. State, supra: “The purpose of this provision [Art. 38.24, V.A.C.C.P.] is to reduce the possibility of the fact finder receiving a false impression from hearing the evidence of only a part of the conversation, writing, act or declaration. The theory behind the rule is that by allowing the jury to hear the rest of the conversation on the. same subject the whole picture will be filled out, removing any misleading effect which may have occurred from introduction of only a portion of the conversation. Obviously this purpose is achieved by receipt of the balance of the conversation on the same subject. But to permit under this rule the introduction of other portions of such a conversation wholly unrelated to the matter initially gone into cannot contribute to achievement of the purpose of the rule.” (Emphasis supplied in the first instance only) The original majority opinion failed to state what it considered to be the “misleading effect” which the appellant left. The subject in question was the voluntariness of the written confession and the question and answer elicited by the State in no way shed any light on that subject. The error was compounded on original submission by the broad statement that appellant’s question “would even have authorized the witness to relate the oral confession.” Therefore, having concluded that Art. 38.24, supra, has no application to this ground, that portion of the original majority opinion relying upon this article as authority for disposing of the appellant’s first ground of error should be overruled. Further, I cannot conclude that the reference to the oral confession would constitute harmless error because of the presence of the written confession. As has been pointed out, the very subject in question here was the voluntariness of the written confession, and the jury had before it evidence of coercion. Certainly, reference to an oral confession would logically serve to bolster the credibility of that written instrument in the minds of the jurors. Despite this, I cannot conclude that the cause must be reversed on this point, since the record contains at least one other reference to the oral confession, a reference which was not objected to by defense counsel. A polygraph examiner was testifying and the following occurred: [Questioning by the prosecutor] “Q After you left, did anyone contact you? “A Yes, sir, Mr. Canty [another polygraph examiner] called me at the Chariott Inn and told me that Patterson [appellant] had orally admitted.” No objection was voiced to this examination. Thus, I conclude that since substantially the same testimony came into evidence without objection, reversible error is not shown. I would deny appellant’s motion for rehearing, but overrule the original majority opinion to the extent it relied upon Art. 38.24, supra. ODOM, J., joins this opinion. . From appellant’s statement of facts as approved by the State. . The State, obviously recognizing the impropriety of the question the prosecutor posed, immediately asked that the question be withdrawn.

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Randolph COOPER, Appellant, v. The STATE of Texas, Appellee. No. 48466. Court of Criminal Appeals of Texas. June 5, 1974. Stan Brown, Abilene, for appellant. Ed Paynter, Dist. Atty., Abilene, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION REYNOLDS, Commissioner. Appellant was convicted of the offense of theft of property of the value of over fifty dollars. The punishment assessed by the jury was six years’ confinement. Appellant’s contention that it was error to overrule his motion for an instructed verdict does not present a valid ground of error. However, since appellant actually is complaining of the sufficiency of the evidence, the ground will be considered in the context of the evidence presented to the jury. On the morning of July 26, 1973, Tommy Parkinson, the service manager for Rhodes Auto Service located at North First and Cedar Streets in Abilene, received a check from Frito-Lay, Inc., made payable to Rhodes Auto Service in the sum of $51.86. He placed the unendorsed check on top of a twenty dollar bill in the office cash drawer, which contained between seventy and eighty dollars, and left the office. At approximately 9:30 that morning, a man, positively identified as appellant by three persons, entered the unoccupied office. Donald Gene Parker, a Rhodes employee working in the shop adjacent to the office, saw appellant lean over the counter toward the cash drawer, draw back his closed fist and put it in his pocket, and then pick up a white piece of paper from the desk and put it in his pocket. Immediately thereafter, Phillip Berry, another Rhodes employee, entered and appellant said he wanted to see Parkinson about a bumper. Parkinson then came in and, after a dicussion about a bumper, appellant walked out the front door. Parkinson, at Parker’s suggestion, looked in the cash drawer and, except for loose change, found it empty. Parkinson, who had custody, control and possession of the money and check, had not given his permission for appellant, or anyone else, to take the property. Parkinson and Parker went out the door and Parkinson called to appellant, who had started across the street. Appellant returned and Parker asked to see what appellant had in his pockets. Appellant replied, “Man, I am going to have to do something about you.” When appellant did not reveal what he had in his pockets, Parkinson entered the store to call the police. Appellant started across the street. Parker followed. Appellant went to North Second Street and turned right. At North Second and Cedar Streets, Parker saw a police car and, finding the police officer in a store, reported the incident. Leaving the store, Parker ran around the corner of North Second and Cypress Streets, and reached appellant about three-quarters of the way in the block at the time appellant was arrested. Policeman C. Q. Billings, the arresting officer to whom Parker had reported, ran his hands over appellant to make sure he did not have a weapon. He felt something soft in appellant’s front pocket, and the officer thought it might be money. The officer called for detectives and, when they arrived, he escorted appellant to the police station. At the station, a search revealed the $51.86 check in appellant’s pocket with his wallet. There was not found in appellant’s pocket the money Officer Billings thought he detected at the first search for weapons, and he did not find the money in the police car. Detective Jack Dieken, one of the detectives responding to Officer Billings’ call, retraced the route appellant had taken from Rhodes Auto Service to the place of arrest. In a planter box in front of a store at 202 Cypress Street, Detective Dieken found a book of matches bearing a Rhodes Automotive Service advertisement and thirty dollars in cash, consisting of a twenty dollar bill, a five dollar bill and five one dollar bills. These items were discovered some thirty to forty minutes after appellant was arrested. It was shown that, in connection with the financial position of Frito-Lay, Inc., the check had a value of $51.86 and, with an endorsement, would have been bought for, or upon presentation would have been paid in the sum of $51.86. After the check was in the custody of the police, payment was stopped on the check, and Frito-Lay, Inc., paid its account with Rhodes Auto Service. Appellant did not testify. He called no witness in his behalf at the guilt-innocence phase of the trial. Appellant argues that the evidence does not show anything of value was taken since the unendorsed check had no value. The cases of Brown v. State, 97 Tex.Cr.R. 452, 262 S.W. 479 (1924), and Rasbury v. State, 136 Tex.Cr.R. 506, 126 S.W.2d 972 (1939), upon which appellant relies for that proposition, are not controlling under the facts here, for in each of those cases there was no evidence that the check made the subject matter of the prosecution would have been paid if presented or otherwise had a value. Here, however, the evidence was that the check had the value of $51.86 and, upon endorsement, could have been sold for that amount or would have been paid in the sum of $51.86 upon presentation. A check may be the subject of theft, and the fact that the check was not endorsed when it was stolen will not protect appellant. Fulshear v. State, 59 Tex.Cr.R. 376, 128 S.W. 134 (1910); Worsham v. State, 56 Tex.Cr.R. 253, 120 S.W. 439 (1909). Appellant complains of the admission into evidence, over his objections, of the book of matches and the money found in the planter box because there was no direct evidence connecting him with the articles. The complaint is unavailing. In view of the facts that the articles were found along the route travelled by appellant, who was in possession of the check but not the money when arrested, the objections more properly went to the weight rather than to the admissibility of the articles into evidence. The admissiblity of the evidence was not subject to the objections made. See Hill v. State, 420 S. W.2d 408 (Tex.Cr.App.1967). The remaining complaint is that the court erred in refusing appellant’s requested charge on circumstantial evidence. We perceive no error. Appellant was seen leaning over the counter in the area of the cash drawer. Although appellant actually was not seen to take anything from the cash drawer, the money and check therein were missing immediately thereafter, and the check was found in appellant’s pocket. We have consistently held that where the facts are in such close juxtaposition to each other a charge on circumstantial evidence need not be given. Turner v. State, 462 S.W.2d 9 (Tex.Cr.App.1969); De La O v. State, 373 S.W.2d 501 (Tex.Cr.App.1963). The grounds of error not presenting reversible error, the judgment is affirmed. Opinion approved by the Court.

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Larry D. CHATMAN, Appellant, v. The STATE of Texas, Appellee. No. 48577. Court of Criminal Appeals of Texas. June 5, 1974. John F. Simmons, Dallas, for appellant. Henry Wade, Dist. Atty. and George B. Shepherd, Jr., Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION JACKSON, Commissioner. A jury convicted appellant of robbery by assault upon his plea of guilty; the punishment assessed by the jury was twenty-five (25) years. The robbery to which appellant plead guilty after being duly admonished occurred on January 2, 1973. Charles' Lu-trick was the manager of the Community Finance office on Casa Linda in Dallas. About 2:20 P.M., Lutrick came from the back of the office and saw appellant with a pistol in his hand at the cashier’s desk. By pointing the pistol at Lutrick and putting him in fear of his life, appellant robbed him of $319 in money. Both Lu-trick and the cashier positively identified appellant as the robber. About 3 P.M. the same day, the robbery having been reported to the Dallas Police, appellant was arrested crouched behind some barrels, with a loaded pistol in his hand, not far from the place of the robbery. Most of the money and the sack which was used to carry the money were recovered in the yard adjoining the place where appellant was arrested. The appellant did not testify. First, appellant complains of the argument of the Assistant District Attorney as follows: “Lastly, stiff punishment. That’s where you come in. That is the last link in law enforcement and if it is not carried through, then may as well just forget it. The District Attorney’s office may as well say to heck with trying to get them to trial while they are still fresh. The Police Department might as well say, ‘Well, why risk my life. . . . ’” He equates this argument to arguments that “You might as well burn the courthouse down.” Cases dealing with such arguments are here noted. In Pemberton v. State, 55 Tex.Cr.R. 464, 117 S.W. 837, the remarks were: “Gentlemen of the jury, are you going to turn this defendant loose? If you do not convict the defendant in this case, than you had as well close the doors of justice, burn up the law books, tear down the courthouses, and let anarchy reign in this country.” Objections were overruled. This Court refused to reverse. In Bushiey v. State, 128 Tex.Cr.R. 1, 79 S.W.2d 124, the argument objected to was: “If you turn the defendant loose you might just as well burn the courthouse, tear up the law books and fire District Judge Reuben Hall.” No reversal was ordered. In Williams v. State, 122 Tex.Cr.R. 269, 54 S.W.2d 121, in commenting on a similar argument, Judge Hawkins wrote approval of the statement in Pemberton, supra: “Though this flight of imagination may not with propriety be cited as a model of eloquence nor an example of logic, it cannot be assumed that the verdict of the jury was responsive to the extravagant statement of counsel rather than to the facts adduced upon the trial.” No reversal resulted. Similar arguments were held not to be reversible error in Cross v. State, 129 Tex.Cr.R. 526, 89 S.W.2d 217; Coats v. State, 98 Tex.Cr.R. 314, 265 S.W. 891; Rutherford v. State, 104 Tex.Cr.R. 127, 283 S.W. 512. We have not been cited to any case in which such argument called for reversal. The argument here complained of was not such an argument. It was no more than an explanation to the jury of the necessary part played by the jury in the legal process of law enforcement, and, as such, it was not improper. Brannon v. State, 164 Tex.Cr.R. 83, 296 S.W.2d 760. We overrule ground of error number one. In his second contention, appellant invites us to reverse because the State’s witness English, being asked about appellant’s composure at the time of the robbery, made the non-responsive answer that “he acted like he had done it before.” Objection was sustained and the jury was instructed not to consider. Then the Assistant District Attorney asked the witness, “I will ask you — you said that he acted like he knew what he was doing.” This question was not answered, the court sustained the objection and instructed the jury not to consider the question. Motions for mistrial were overruled. As we have so often said, the instructions rendered the errors harmless. We overrule ground of error number two. In his ground of error number three, appellant asserts that the court erred in not permitting him to make the closing argument to the jury. The State has the right to make the concluding argument by the terms of Art. 36.07, Vernon’s Ann.C.C.P., which reads: “The order of argument may be regulated by the presiding judge; but the State’s counsel shall have the right to make the concluding address to the jury. Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.” See Cherry v. State, Tex.Cr.App., 488 S.W.2d 744, cert. denied, 411 U.S. 909, 93 S.Ct. 1538, 36 L.Ed.2d 199. We overrule ground of error number three. The judgment is affirmed. Opinion approved by the Court.

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Charles Aron JOHNSON, Appellant, v. The STATE of Texas, Appellee. No. 46485. Court of Criminal Appeals of Texas. June 5, 1974. Lawrence Wells, Austin, for appellant. Henry Wade, Dist. Atty., Jerome L. Croston, Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION JACKSON, Commissioner. This is an appeal from a conviction by a jury for robbery on a plea of not guilty; the punishment by the court, thirty (30) years. The evidence showed that Scott, a taxi driver, was robbed by a passenger shortly after midnight on April 11, 1971. He positively identified appellant as the robber who pulled a pistol on him and thereby obtained money and a radio. Scott, the taxi driver, did not see appellant until after his arrest in connection with another robbery on October 8,1971. After proving the robbery of Scott on April 11, 1971, as part of its case, the State proved by Officer Kossa of the Dallas Police Department that on October 8, 1971 (some six months after the incident on trial), he was patrolling in his car, when because of a conversation with two women he hurriedly drove to the 600 block on Moore Street, and there arrested appellant in company with another man named Ray Patrick. Patrick was cut and bleeding profusely about the head and face, had a large bump on his head, was staggering and was apparently disorientated. Officer Kossa saw appellant throw something away, which he later found to be a knife, and also found a hammer with a broken handle nearby. Appellant had Patrick’s billfold in his hip jocket. Patrick told the officer in appellant’s presence, “I have been robbed.” Appellant properly objected to the evidence relative’ to the arrest as being proof of an extraneous offense, not relevant to the case on trial. The objection was overruled. There was evidence subsequently offered by appellant that he was in California on April 11, 1971, by appellant’s parents, but appellant did not testify. The court charged on alibi. The arrest of appellant on October 8, 1971, while apparently in the act of robbing Ray Patrick, in nowise rebutted the issue of alibi nor tended to prove the identity of the man who robbed the taxi driver, Scott. The only distinguishing characteristic common to both offenses was that the robbers in both cases were black. They were not perpetrated in the same manner or by the use of the same weapons. They were widely separated as to time. Appellant was entitled to be tried upon the offense with which he was charged, and not for being a criminal generally or for being a person prone to commit robbery. Ford v. State, Tex.Cr.App., 484 S.W.2d 727; Jones v. State, Tex.Cr. App., 481 S.W.2d 900; Newman v. State, Tex.Cr.App., 485 S.W.2d 576. For the error of the court in permitting proof of this extraneous offense, we reverse the judgment and remand the cause for a new trial. Opinion approved by the Court. MORRISON, Judge (dissenting). I do not agree to the reversal of this conviction. The primary offense occurred at night on Moore Street in the Oak Cliff section of Dallas. Only the robber (appellant) and the victim were present, and the victim’s money was taken. The extraneous offense occurred at night on Moore Street in the Oak Cliff section of Dallas. Only the robber (appellant) and the victim were present, and the victim’s pocketbook and its contents were taken. The evidence reflects that appellant lived with his father in the vicinity of Moore Street in the Oak Cliff area. Even though six months had elapsed between the commission of the primary and the extraneous offenses, I conclude, as I have in Henriksen v. State, Tex.Cr.App., 500 S.W.2d 491, that there was enough similarity between the manner in which the offenses were committed to hold that the extraneous offense was admissible. In both this case and Henriksen, supra, the offenses were robberies and alibi was the defense. See also Ransom v. State, Tex. Cr.App., 503 S.W.2d 810. I respectfully dissent.

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Floyd FOWLER, Appellant, v. The STATE of Texas, Appellee. No. 48502. Court of Criminal Appeals of Texas. June 5, 1974. James H. Kreimeyer, Belton, for appellant. Joe Carroll, Dist. Atty., Paul R. Reagan, Asst. Dist. Atty., Belton, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION DALLY, Commissioner. This is an appeal from an order revoking probation. The appellant was convicted on February 25, 1970, for the unlawful sale of a barbituric acid derivative, a dangerous drug; punishment of imprisonment for ten years was assessed; the imposition of the sentence was suspended and the appellant was placed on probation. After hearing the State’s motion the Court revoked probation on September 21, 1973, and sentence was imposed. The appellant urges that the Court abused its discretion in revoking probation because, “First, there is a variance between the pleading and proof as to the owner of the tires alleged to have been taken, and, secondly, the State failed to prove non-consent of the corporation for appellant to take the tires as alleged.” The allegation in the State’s amended motion for revocation upon which the order of revocation is based alleged that the appellant violated the condition of probation that he would not violate the laws of this State in that “On or about the tenth day of June, 1973, in the County of Bell, State of Texas, [h]e did then and there fraudulently take two tires of the value of over $50 the same being the corporeal personal property of Perry Dickerson, Mr. Quick’s, Harker Heights, Texas, from the possession of the said Perry Dickerson without the consent of the said Perry Dickerson with the intent to deprive the said Perry Dickerson of the value thereof, and with the intent to appropriate it to the use and benefit of him, the said Floyd Fowler.” The appellant relies upon Easley v. State, 167 Tex.Cr.R. 156, 319 S.W.2d 325 (1959). There the allegations of the indictment were that the stolen property was “ . . . [t]he corporeal personal property of H. E. Butt [taken] from the possession of Burgis Edens who was holding the same for the said H. E. Butt. . . . ” This Court held that the effect of that pleading was to allege the ownership of the stolen property in both the special and general owner which required proof to meet both allegations. The State failed to prove ownership and lack of consent in the general owner, proving rather that the general owner was a corporation in which the alleged general owner was the sole stockholder. The judgment was reversed because of the variance and lack of proof. In the case at bar we construe the allegation of the motion to revoke probation as alleging ownership in the special owner, Perry Dickerson, and not in the general owner. Proof fully supported the allegation that Perry Dickerson was a special owner and that he did not give his consent to the taking of the property. The additional allegation “Mr. Quick’s” which was the popular neighborhood name for the establishment managed by Perry Dickerson, where the tires were taken, was unnecessary. This additional allegation is not shown to have misled the appellant and there was no failure to give the appellant notice of the offense with which he was charged in violation of the conditions of probation. It has been held that the pleadings of the motion to revoke probation need not strictly comply with the requirements of an indictment. See, e. g., Dempsey v. State, 496 S.W.2d 49 (Tex.Cr.App. 1973); Rhodes v. State, 491 S.W.2d 895 (Tex.Cr.App.1973); Wilcox v. State, 477 S.W.2d 900 (Tex.Cr.App.1972); Jansson v. State, 473 S.W.2d 40 (Tex.Cr.App.1971). The pleading here complies with the rule that it should fully inform the probationer so that he and his counsel will know what he will be called upon to defend against. Dempsey v. State, supra; Rhodes v. State, supra; Wilcox v. State, supra; Jansson v. State, supra. No abuse of discretion in revoking probation is shown. The judgment is affirmed. Opinion approved by the Court. . AVe are not unmindful of our recent decision in Middleton v. State, 476 S.W.2d 14 (Tex.Cr.App.1972) holding that it was unnecessary to allege that Humble Oil and Refining Company was a corporation.

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Robert BUTLER, Appellant, v. The STATE of Texas, Appellee. No. 48497. Court of Criminal Appeals of Texas. June 5, 1974. Ronald Piperi, Killeen, for appellant. Joe Carroll, Dist. Atty., Bob D. Odom, Asst. Dist. Atty., Belton, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION ONION, Presiding Judge. This is an appeal from a conviction for sale of heroin wherein the punishment was assessed at eighteen (18) years. Appellant does not challenge the sufficiency of the evidence. Suffice it to say the record reflects that on the night of October 9, 1972, narcotics agents Jimmy Simmons and Brantley Foster of the Texas Department of Public Safety were working in an undercover capacity in the City of Killeen when they observed the appellant and co-defendant Johnny B. Hayes drive onto a nearby parking lot. After exchanging greetings, the appellant asked agent Foster if he wanted to buy some heroin. Agent Foster then replied that he had no money and suggested a sale with his companion Simmons, who was then introduced to the twosome. After agreeing with agent Simmons upon a price of $50 for a gram of heroin, the undercover officer gave the appellant three $20 bills. Appellant and Hayes then returned to their car, and a short time later waved Simmons and Foster to the vehicle. When Simmons arrived at the passenger’s side of the vehicle, appellant handed Hayes two $5 bills, which were wrapped around a small yellow balloon containing the heroin. Hayes then handed the package to Simmons, thus consummating the sale. The chain of custody was established, and the chemist testified that the substance in the balloon was heroin. In his sole ground of error appellant complains that the trial court erred in admitting into evidence over his objection the prior sale of heroin as an extraneous offense. The record further reflects that after the State rested its case in chief appellant called as a witness his co-defendant, Johnny B. Hays, who testified that he had been approached by agent Foster on the date in question and had sold the undercover officer a gram of heroin. Hayes further testified that the appellant had ridden to town with him, but was not present at the time of the transaction and had no knowledge of the sale. He acknowledged that after appellant returned to the scene he furnished the $10 change as a favor to him (Hayes), but that he (Hayes) did not tell appellant until later that the transaction involved a sale of heroin. On cross-examination Hayes testified that on the night of October 9, 1972, he and the appellant “went to town to mess off a little time.” When asked if he carried “that much heroin (1 gram) around town just messing around?” Hayes answered, “That was the only time I ever been involved in a sale.” Thereafter, the State elicited, without objection, that the witness had pled guilty the day before to the sale on October 9, 1972, as well as a sale of heroin on September 1, 1972 (to agent Foster). Thus, the witness was impeached as to his earlier statement that October 9th was the only time he had been involved in a sale of narcotics. Subsequently, on cross-examination Hayes was asked, over objection, if the appellant was involved in the sale on September 1, 1972. The answers were unclear, such as, “Well, will you repeat that?” or “You mean — I don’t — .” Finally, the State, without objection, rephrased the question and asked if Hayes hadn’t told agent Foster on September 1st that he was out of heroin, having just sold ten grams, but took him to appellant’s house where agent Foster bought a gram of heroin from the appellant. Hayes answered: “No. What it was — it was a mixup. When we went to Butler’s house. Butler, he didn’t even want to talk to him, didn’t even want to discuss nothing with him because he told him to leave his house.” He denied “it” took place. On redirect examination he denied that appellant Butler had participated in any way, shape or form in the other case (September 1st). On recross-examination he acknowledged he had taken agent Foster to Butler’s house because Foster wanted to meet Butler, but persisted in his testimony that Butler had nothing to do with the sale of heroin on that day. In rebuttal agent Foster was recalled and testified that he went to Hayes’ house in Killeen on September 1st, where Hayes told him he had just sold ten grams of heroin and if Foster wanted some he (Foster) would have to take him (Hayes) to his partner’s house, and they went to the appellant Butler’s house, where he observed Hayes give $500 to Butler for his share of the sale of drugs. Foster further related he purchased two grams of heroin from Butler. This latter testimony came in over the objection that it was injecting into evidence an extraneous offense. “The general rule in all English speaking jurisdictions is that an accused is entitled to be tried on the accusation made in the State’s pleading and not on some collateral crime or for being a criminal generally. The rule is now deemed axiomatic and is followed in all jurisdictions.’’ Young v. State, 159 Tex.Cr.R. 164, 261 S.W.2d 836, 837 (1953). See also 23 Tex.Jur.2d, Evidence, Sec. 194, p. 294. There are, of course, exceptions to this general rule. See Albrecht v. State, 486 S.W.2d 97, 100 (Tex.Cr.App.1972). For example, in 23 Tex.Jur.2d, Evidence, Sec. 195, p. 300, it is written: “Evidence of the commission of other crimes by the accused is admissible as part of the res gestae or to show identity of person or crime, intent, motive, scien-ter, system, and malice. Evidence of other crimes is also admissible to discredit the accused when he testifies in his own behalf, or to show his failure to have reformed, or to controvert a defensive theory advanced by him.” In the instant case the appellant called the co-defendant Hayes, who testified that he alone made the sale charged in the indictment, that the appellant was not present at the time, arriving only in time to loan him (Hayes) the $10 needed for change, and that appellant had no knowledge of the sale until he told appellant of the transaction sometime later. This testimony was in sharp dispute with that of the undercover agents. We conclude that the extraneous offense on September 1st was admissible to show the appellant’s intent and his guilty knowledge, and tended to defeat and discredit the defensive theory of lack of guilty knowledge. See 23 Tex.Jur.2d, Evidence, Sec. 198, p. 306, and cases there cited. The evidence appears to be further admissible in rebuttal of Hayes’ testimony that the appellant had not participated in any manner in the sale on September 1st. The judgment is affirmed.

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A. J. WATSON, Appellant, v. GENERAL MOTORS ACCEPTANCE CORP., Appellee. No. 15298. Court of Civil Appeals of Texas, San Antonio. May 15, 1974. Marc Wooten, Jr., Larry Oubre, Dallas, for appellant, John W. Bell, Herbert W. Hill, San Antonio, for appellee. BARROW, Chief Justice. A venue action. Appellant has perfected his appeal from an order of the County Court at Law No. 2 of Bexar County, which granted appellee's motion to set aside a prior order sustaining appellant’s plea of privilege and overruled such plea. On September 19, 1973, appellee filed this suit in Bexar County on a retail installment contract executed by appellant in Dallas County and expressly made payable in Dallas County. Appellant, a resident of Dallas County, timely filed his plea of privilege to be sued in Dallas County. Subject to said plea of privilege, he filed an answer and cross-action seeking damages from appellee for abuse of process in filing such suit in Bexar County. The plea of privilege was not timely controverted by appellee as required by Rule 86, Texas Rules of Civil Procedure, and on November 12, 1973, the trial court signed an order transferring the cause to Dallas County. However, on December 3, 1973, the trial court set aside the November 12th order, sustained appellee’s motion, filed on November 9, 1973, to strike said plea of privilege and overruled it. It was urged in said motion to strike that appellant had waived his plea of privilege by filing the cross-action. Appellant urges two points on this appeal. (1) The trial court erred in rescinding its order transferring the cause to Dallas County in that appellee did not file a controverting affidavit to the plea of privilege. (2) In any event, appellant did not waive his plea of privilege by filing the cross-action subject to said plea. It is well settled that when a plea of privilege has been filed in accordance with Rule 86, T.R.C.P., the required notice given, and no controverting affidavit is timely filed, the trial court is without jurisdiction to enter any order other than an order transferring the cause to the proper court. Bogle v. Landa, 127 Tex. 317, 94 S.W.2d 154 (Tex.Comm’n.App.1936, opinion adopted) ; Robertson Distribution Systems, Inc. v. Butt, 482 S.W.2d 28 (Tex.Civ.App.— Corpus Christi 1972, writ ref’d n. r. e.); Smith v. Smith, 454 S.W.2d 844 (Tex.Civ. App. — Austin 1970, no writ); Alley v. Ponca Wholesale Mercantile Co., 360 S.W.2d 870 (Tex.Civ.App. — Amarillo 1962, no writ); Rogers v. Barbee, 359 S.W.2d 101 (Tex.Civ.App. — Houston 1962, no writ); Durrett v. Arctic Air, Inc., 319 S. W.2d 937 (Tex.Civ.App. — Houston 1959, no writ); Bell v. Jasper Lumber Corp., 287 S.W.2d 746 (Tex.Civ.App. — Beaumont 1956, writ dism’d). Appellee urges, however, that appellant waived his plea of privilege by filing the cross-action. This contention misses the mark in that appellee does not even assert that appellant waived the requirement that appellee file a controverting affidavit. Cf. Huffaker v. Lea County Electric Cooperative, Inc., 344 S.W.2d 915 (Tex.Civ.App.— Amarillo 1961, writ ref’d n. r. .e.); 1 McDonald, Texas Civil Practice, Controverting Affidavit, Section 4.47, pp. 587-588. Since appellant did not waive the necessity for appellee to file a controverting affidavit to his plea of privilege, the trial court erred in setting aside its order transferring the cause to Dallas County. We sustain appellant’s first point and therefore find it unnecessary to consider the second point. The judgment of the trial court is reversed and here rendered that appellant’s plea of privilege be sustained and the cause transferred to Dallas County. . It is seen that the cross-action was filed subject to the plea of privilege. See Hickman v. Swain, 106 Tex. 431, 167 S.W. 209 (1914) ; Allied Finance Co. v. Shaw, 359 S.W.2d 168 (Tex.Civ.App. — Fort Worth 1962, no writ) ; Stark v. Super-Cold Southwest Co., 239 S.W. 2d 402 (Tex.Civ.App. — Fort Worth 1951, mandamus overruled).

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LESIKAR CONSTRUCTION COMPANY et al., Appellants, v. ACOUSTEX, INC., Appellee. No. 17509. Court of Civil Appeals of Texas, Fort Worth. April 26, 1974. Rehearing Denied May 31, 1974. Steves & Morgan, and Sterling W. Steves, Fort Worth, for appellants. Robert K. Roach, Wichita Falls, for ap-pellee. OPINION BREWSTER, Justice. , This suit was brought by a subcontractor, Acoustex, Inc., against a general contractor, Lesikar Construction Company, seeking to recover the balance claimed to be owed the subcontractor for work it did in constructing the W. E. Boswell High School at Saginaw, Texas. The general contractor’s bonding company, General Insurance Company of America, was also named as a defendant and it was sued on the general contractor’s bond that was posted under Art. 5160, Vernon’s Ann.Civ. St. The plaintiff was awarded a judgment for $4,378.73 against the two defendants and this appeal is from that decree. This sum represented the balance due on the contract price plus accrued interest. The defendants in their first three points of error contend that the trial court erred in rendering the judgment for plaintiff because (1) the jury found that the plaintiff had failed to comply with a condition precedent in the contract that required him to furnish the general contractor an affidavit showing that all bills for labor and materials had been paid in full before he was entitled to payment; (2) the jury found that Lesikar Construction Company did not waive its right to require plaintiff to furnish the bills paid affidavit required by the contract; and (3) the court disregarded the jury findings that Lesikar did not waive its right to require plaintiff to furnish such bills paid affidavit as required by the contract. We overrule defendants’ first three points of error. By the contract in question executed on July 5, 1968, Acoustex, Inc., a subcontractor, agreed to complete the furnishing and installation of all gypsum drywall partitions and ceilings and acoustical treatment to be used in the school building involved. Section 4 of the contract between the subcontractor and general contractor contained the following provisions: “SECTION FOUR: Contractor agrees to pay Subcontractor for the performance of work hereunder the sum of Eleven Thousand One Hundred Twenty and no/100 ($11,120.00) . . . and to make payments on account thereof in accordance with the provisions that follow: “c. Upon the completion of said work or furnishing said materials, in accordance with said plans and specifications, to furnish to Contractor evidence in the form of an affidavit that all bills both for labor and materials have been paid in full, and upon the presentation of such affidavit the Contractor shall pay to the Subcontractor the balance due under this Contract.” The jury found in answer to Issue No. 1 that Acoustex, Inc., had not furnished to Lesikar an affidavit that all bills for labor and materials had been paid in full. The verdict (Issue No. 2) also established that Lesikar did not waive its right to have Acoustex, Inc. furnish it an affidavit that all bills for labor and materials had been paid in full. The architect on. the job certified that the school building project was fully completed on January 11, 1969. The architect at that time accepted all work done on the job, including that done by the plaintiff, Acoustex, Inc. The general contractor, Lesikar, was paid his contract price in full by the owner for doing the school job on February 20, 1969. After completing his contract the subcontractor did not furnish Lesikar an affidavit stating that all his bills for labor and materials had been paid. The price for which plaintiff had contracted to do the work and furnish the materials was $11,120.00. The first mention defendant ever made to plaintiff of plaintiff’s failure to furnish defendant a bills paid affidavit was while this lawsuit was being prepared for trial. The case was not tried until almost four years after the contract was completed. There was no evidence in the record that anyone has ever tried to fix a lien or make a claim against the general contractor, his bondsman, or against the owner for unpaid labor or material bills incurred by plaintiff in performing the contract. All of the facts recited in this paragraph are undisputed. Marion Yancey, the plaintiff’s general manager, testified at the trial that the amount that had been paid to plaintiff by the general contractor was $7,647.23 leaving an unpaid balance owed to plaintiff on the contract price of $3,472.77. Yancey also testified that plaintiff had paid all of its bills for labor and materials that were furnished in connection with this job, and that no one had ever asked defendant to pay any of such bills. The witness, Bob Land, was general manager of plaintiff at the time this job was done. He was employed elsewhere at the time of the trial. He also testified that the plaintiff had paid all the bills for labor and materials that it furnished in connection with this job. The testimony of both Land and Yancey was given under oath to the effect that these bills for plaintiff’s labor and materials were paid. We deem the evidence in the case to establish as a matter of law that the plaintiff has in fact prior to trial fully paid all such bills. The testimony of the witnesses, Marion Yancey and Bob Land, to that effect is undisputed. They were both, at different times, general managers of the plaintiff, but their uncontradicted testimony is clear and positive and there are no circumstances in evidence tending to discredit or impeach such testimony. In addition there is no testimony that any claims or liens were sought to be fixed by anyone against the contractor, his bondsmen or the owner arising out of labor done or materials furnished by plaintiff under this contract. Under these circumstances we hold that the evidence conclusively establishes the fact that all such bills for labor and material have been paid in full. See 62 Tex. Jur.2d 451-452, Witnesses, Sec. 373, and McGuire v. City of Dallas, 141 Tex. 170, 170 S.W.2d 722 (Tex.Com.App., 1943). In addition, Mr. Lesikar, president of defendant corporation, had the means and opportunity to dispute this testimony while he was testifying, but failed to do so. The same questions presented to us here under defendants’ first three points of error were presented to the Supreme Court in the case of Citizens Nat. Bank v. Texas & P. Ry. Co., 136 Tex. 333, 150 S.W.2d 1003 (1941). There Locke entered into a construction contract with the railroad and performed it. The written contract provided for Locke, after completion, to furnish written evidence satisfactory to the railroad that he had paid all labor and material bills that he incurred in connection with the job and that when this was done the railroad would pay to Locke all sums owed him under the contract. Locke did all the work called for and the railroad accepted it. Locke never did furnish the railroad written evidence that his bills were all paid. Locke then assigned all his rights under the contract to the Bank. The Bank sued the railroad and three unpaid suppliers of materials to Locke were made parties to the suit. No liens were ever fixed against the railroad and the time had long since passed when any liens could be fixed against the railroad for matters arising out of the contract. The railroad refused to pay because Locke had never furnished it the written evidence that he had paid his bills for labor and materials furnished on the job. In construing that contract the court said the entire instrument would be looked to in order to determine the intent of the parties and that it would be considered' in the light of the existing lien statutes and that when that was done they held that the provision requiring the contractor to furnish written evidence of payment of its bills prior to payment by the owner was put in the contract only to protect the railroad against those who might claim liens against it under existing lien statutes. The provision was not there to benefit third parties. The following is from the opinion in that case at page 1007 of 150 S.W.2d: “ . . . the provision of paragraph 6 . was not intended as an absolute condition to be enforced regardless of any necessity or reason therefor; We further think that, since the Railway has received and accepted the benefits of this contract in full, and since the enforcement of the requirement of paragraph 6, regarding the furnishing of written evidence of the payment of certain claims, will be of no benefit to the Railway, for whose benefit alone it was written into the contract, there is no reason in law or in equity why it should not now discharge its obligation to pay for the services performed by Locke for it. 40 C.J., p. 365; Getty et al. v. Pennsylvania Inst., etc., 194 Pa. 571, 45 A. 333, 334. We think it would be giving this contract an unreasonable construction to say that the provision of paragraph 6 under discussion imposes a condition.in favor of the Railway, absolute in its terms and effect, even though the Railway has no further interest in its enforcement and could not benefit thereby; and even though the Railway has received and accepted the full benefits of the contract. ‘A contract will not be presumed to have imposed an absurd or impossible condition on one of the parties, but will be interpreted as the parties must be supposed to have understood the condition at the time.’ 12 Am.Jur., p. 848, § 295.” The reasoning in that case applies with full force here. It is undisputed that the plaintiff has fully performed its contract and that the defendant has been fully paid by the owner for the labor and materials that plaintiff furnished. In fact Lesikar has accepted the full benefits of plaintiff’s performance and has collected from the owner for the work and materials furnished by plaintiff. Article 5160, V.A.C.S., provides in substance that a bond claim arising from a debt incurred by a subcontractor for unpaid labor or materials in a situation such as is involved here must be perfected by giving written notice of the claim to the contractor and his surety on or before approximately 90 days after final completion of the contract between the prime contractor and the school district. Here it was undisputed that Lesikar completed its contract on January 11, 1969. This case was not tried until almost four years later. Long ago the time passed in which one could legally fix a claim under the above statute against the general contractor or against his bondsmen. Thus, there ceased to be any further reason for requiring proof of the payment of the bills incurred by plaintiff because the statute referred to, after the lapse of the period of time in which a claim could be legally fixed, furnished Lesikar all the protection it needed against the possibility that it could be required to pay such bills. We hold that since it has been established in this case that plaintiff has in fact paid all of its bills for labor and materials used in performing its subcontract, and because furnishing a bills paid affidavit at this time would be of no benefit to the plaintiff because the time has long since passed in which furnishers of labor and materials to plaintiff could legally fix a claim or lien against the contractor or his bondsman for such items, and because the defendant has heretofore collected his full contract price from the school owner and has thus accepted and retained the benefits flowing from the full performance by the plaintiff of its subcontract with defendant, that there is now no reason whatever why Lesikar should not perform its part of the contract with plaintiff by paying to plaintiff the balance of the contract price. We hold that the condition involved here was not intended by the parties to be an absolute condition to be enforced regardless of whether or not a necessity or reason existed for its enforcement. As stated, it was put in the contract for defendant’s protection. Since the defendant’s need for the protection afforded by that provision no longer exists, the condition will not now be enforced. The Citizens National Bank case, supra, is our authority for this holding. In addition to what we have said, we call attention to the Restatement of the Law of Contracts, Vol. 1, Sec. 302, which provides as follows: “Excuse of Condition That Involves Forfeiture. “A condition may be excused without other reason if its requirement (a) will involve extreme forfeiture or penalty, and (b) its existence or occurrence forms no essential part of the exchange for the promisor’s performance.” (Emphasis ours.) According to that work the reason for this rule is that the enforcement of conditions in the instances referred to in the rule, where the effect of such enforcement would be to effect a forfeiture or a penalty in case of a breach of such condition, would be opposed to public policy. This rule is applicable here. This rule has been applied and is the law in Texas. See Hill v. Still, 19 Tex. 76 (Tex. Sup., 1857); Missouri State Life Ins. Co. v. Le Fevre, 10 S.W.2d 267 (Waco Civ. App., 1928, writ dism.); and Limestone County v. Peeples, 285 S.W. 696 (Waco Civ.App., 1926, writ dism.). If the condition involved here was literally enforced it would result in an extreme forfeiture to plaintiff and would allow the defendant to keep as a windfall the sums he has collected from the owner for the plaintiff’s labor and materials that plaintiff put into the job. Also, the performance of this condition by the plaintiff formed no part of the things that the contract called for plaintiff to do for which defendant agreed to pay him the contract price. Plaintiff has fully performed the things for which defendant agreed to pay him by furnishing the labor and materials necessary to perform the work called for. Because both of the elements referred to above that are necessary for the application of the above rule are present in this case, the non-performance of the condition involved here by plaintiff is excused. Defendants’ fourth point of error is that the evidence in the case was insufficient to show the amount owed on the contract price by Lesikar to plaintiff. We overrule this point. Marion Yancey testified that Lesikar had paid $7,647.23 to plaintiff on the contract price and that defendant still owed plaintiff $3,472.77. It was undisputed that the contract price was $11,120.00. We hold that that testimony was sufficient to show the amount owed by defendant. Yancey was a stockholder, director, officer and general manager in the plaintiff corporation. He was thus an interested witness. He was the only witness that testified as to the balance that defendant owed plaintiff and as to the amount that defendant had paid to plaintiff on the contract. His testimony on this point was un-contradicted and it was clear and convincing and there are no circumstances in the evidence tending to discredit or impeach his testimony. After Yancey testified, L. W. Lesikar, the president and apparently the sole owner of defendant corporation, took the stand. He had the means and opportunity to dispute Yancey’s testimony on this point, but failed to do so. Under this state of the record we hold that it was established as a matter of law that the unpaid balance that defendant owed on the contract was $3,472.77. See 62 Tex.Jur.2d, 451-452, Witnesses, Sec. 373, and McGuire v. City of Dallas, supra. The defendants claim also that Yancey’s testimony on this point was pure hearsay and that it was therefore insufficient to establish the amount defendant owed because he did not begin working for plaintiff until after the contract was completed and therefore could have no first-hand knowledge of such facts. We disagree. Yancey testified that $7,647.23 was the amount defendant had paid on the contract price and that the balance owed plaintiff was $3,472.77. No objection was made to this testimony. Yancey was plaintiff’s general manager but did not take over at the Fort Worth office that did this work until June 1, 1969. By that time the contract work had been completed, but Yancey did get in on some of the punch-out work on this job. His job was to handle the overall supervision and running of the plaintiff company in its day to day operations. He exchanged a number of letters with Mr. Lesikar, defendant’s president, about the matter. He went to the jobsite and inspected it after the job was complete. He has custody of all plaintiff’s records relating to this job showing the labor and material costs to plaintiff, the amount defendant has paid and the balance owed. He testified that to his knowledge plaintiff has requested that defendant pay the balance of the contract price but that defendant has not done so. Defense counsel asked Yancey to compiite from plaintiffs records the amount that defendant paid on the contract and he did so saying that amount was $7,64723. He testified that he has been through plaintiff’s records on this probably ten times since they have had the problem. Undoubtedly the plaintiff’s records would have been admissible to show the balance that defendant owed on the contract price. Yancey’s testimony as to what plaintiff’s records showed this balance to be was also admissible in the absence of an objection that the records would be the best evidence of what they showed. No such objection was made here. In fact it was defense counsel that elicited this testimony from Yancey on cross-examination. The rules applicable in deciding whether or not Yancey’s testimony as to the amount defendant had paid on the contract price and as to the balance that defendant owed was hearsay and therefore inadmissible are clearly stated in 24 Tex. Jur.2d 63, Evidence, Sec. 561, as follows: “ . . . testimony is admissible where it appears possible for the witness to have personal knowledge of the facts testified to, and it is not shown that he lacked such knowledge and depended for his information on the statements of another. In short, to exclude testimony on the ground of hearsay, it must affirmatively appear that it is wholly hearsay.” Fort Worth & D. C. Ry. Co. v. Ryan, 271 S.W. 397 (Fort Worth Civ.App., 1925, no writ hist.), and Jackes-Evans Mfg. Co. v. Goss, 254 S.W. 320 (Texarkana Civ.App., 1923, no writ hist.) support this text. When these rules are applied to the facts of this case, as they are outlined above, we hold that the defendants failed to make this record affirmatively show that Yan-cey’s testimony on the point in question was hearsay and inadmissible. Defendant’s fifth point of error is that the trial court erred in rendering judgment against the general contractor’s bonding company herein because plaintiff failed to prove its compliance with Art. 5160, V.A.C.S., by filing the type and kind of notice required by that statute. The record here shows that a payment bond was executed between Lesikar and the defendant, Surety Company, and it was approved by the school district. In arguing this point the defendants admit receiving notice of plaintiff’s claim which was accompanied by a statement of account. The notices were given by certified mail to the prime contractor and to the surety within the time periods prescribed by Art. 5160, V.A.C.S. This suit to collect the claim was filed within the time prescribed in that statute. The defendant contends that the notices of plaintiff’s claim given the defendants were insufficient to comply with Art. 5160, V.A.C.S., in two respects, namely: (1) they did not give the approximate dates of delivery of the materials and of the furnishing of the labor as required by Art. 5160, Sec. B(a)(2); and (2) because the notice did not sufficiently describe the labor and materials in such a manner as to reasonably identify them. We overrule these contentions. It was undisputed that the project was completed on January 11, 1969. The surety company admitted receiving plaintiff’s notice of the claim before February 8, 1969. Since defendants received the notice of the claim before February 8, 1969, such notice, if sufficient, effectively fixed plaintiff’s claim under Art. 5160, V.A.C.S. as to any labor and materials furnished after October 1, 1968. It was uncontroverted at the trial that the value of the labor and materials furnished by plaintiff after October 1, 1968, was in excess of the balance due on the contract. We hold that the notice of claim given defendants by plaintiff was not defective for failing to itémize the labor and materials furnished on the job involved during the period in question. The evidence showed that in addition to the notice of claim and in addition to the sworn statement of account that plaintiff furnished to defendants that it also, at the same time, furnished them a true copy of the written agreement between plaintiff and Lesikar under which the work and materials were furnished. Article 5160, Sec. B(a), V.A.C.S., provides in part as follows: “When the claim is based on a written agreement, the claimant shall have the option to enclose, with the sworn statement of account, as such notice a true copy of such agreement and advising completion or value of partial completion of same.” (Emphasis ours.) The claim here was based on a written contract. The statute gave the plaintiff the option of furnishing defendants a copy of the written agreement as the notice and advising defendants of the completion of same. The plaintiff complied with this requirement of the statute and it was therefore not necessary that plaintiff also furnish defendants an itemization of the labor and materials under the contract as is contended for by defendants. Our authority for this holding is Maryland Casualty Company v. Barron-Britton, Inc, 161 Tex. 83, 336 S.W.2d 622 (1960). It is true that that case dealt with Art. 5160 as it was worded before being amended in 1959. But a reading of the statute, as amended, shows that the holding in that case was expressly placed into the amended statute so as to give the claimant the right to furnish the copy of the written agreement in lieu of itemizing the items of labor and material that were furnished under such contract. Defendants’ other contention under their fifth point is that the notice of claim filed by plaintiff was insufficient in that they did not give the approximate dates of the delivery of the materials and of the furnishing of the labor as ¡required by Art. 5160, Sec. B(a) (2). Defendants admitted that the notices were given them prior to February 8, 1969. The written notice plaintiff gave defendants recited the following: “ . . . claimant has furnished labor and material in the prosecution of the work provided for in a contract between Acoustex Co. and Lesikar Construction Co, dated the 5th day of July, 1968, in which a payment Bond was furnished . has not been paid in full therefor . and now within 90 days after the 10th day of the month next following the month in which the labor was performed and the material delivered gives this his written notice of such claim . . . .” (Emphasis ours.) This notice was dated January 21, 1969. We hold that the quoted part of the notice provided defendants notice as to the approximate dates when the labor was performed and the materials were furnished for which the claim was being made. It advised defendants that plaintiff was only making claim for labor done and materials delivered under the contract that were furnished within the 90 day plus time period prescribed by Art. 5160, Sec. B(a), V.A.C. S. The law is that the notice requirements of Art. 5160, V.A.C.S, are to be liberally construed and a substantial compliance with that statute is all that is required as to notice. United States Fidelity & G. Co. v. Parker Bros. & Co, Inc, 437 S.W. 2d 880 (Houston 1st Dist, 1969, ref. n.r.e.) ; Citadel Construction Company v. Smith, 483 S.W.2d 283 (Austin Civ.App, 1972, ref. n.r.e.); General Electric Supply Co. v. Epco Constructors, Inc, 332 F.Supp. 112 (S.D.Texas, 1971); and United Benefit F. Ins. Co. v. Metropolitan Plumbing Co., 363 S.W.2d 843 (El Paso Civ.App, 1962, no writ hist.). We hold that the notice of claim that plaintiff furnished defendants was in substantial compliance with the part of Art. 5160, Sec. B(a)(2) requiring the notice to state the approximate date or dates of performance of labor or delivery of materials or both. The judgment is affirmed.

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2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

FLAGG REALTORS, INC., Appellant, v. Velma HARVEL, Appellee. No. 8422. Court of Civil Appeals of Texas, Amarillo. April 22, 1974. Rehearing Denied May 20, 1974. Brock, Waters & Galey (Charles E. Gal-ey and Donald E. Cummings), Lubbock, for appellant. Garner, Boulter, Jesko & Purdom (Jack O. Nelson, Jr.), Lubbock, for appellee. ELLIS, Chief Justice. Defendant real estate company has appealed from a judgment entered by the trial court awarding plaintiff-salesperson disputed compensation on three certain transactions, plus interest on one of the transactions at 10 per cent per annum from the time it was closed until the date of judgment; and plaintiff complains, by way of cross-point, of the denial of attorney’s fee. Reformed and affirmed in part and reversed and remanded in part. At all times material to this suit, Velma Harvel, plaintiff-appellee, hereinafter referred to as “Harvel,” worked with Flagg Realtors, Inc., defendant-appellant, hereinafter referred to as “Realtor,” under an agreement providing for a sharing or dividing of Realtor’s total commissions resulting as a consequence of her efforts. Under this agreement, Harvel was to secure listings of property for sale through Realtor’s office and secure purchasers for property so listed. Both Realtor and Har-vel7 are licensed to sell real estate under Article 6573a, Vernon’s Ann.Civ.St, Texas Real Estate Licensing Act. This controversy arose over three transactions. The undisputed evidence is that Harvel secured a purchaser, R. P. Brown, for property known as the Bacarrat Apartments which was owned by Kenneth Flagg, operating as Flagg Homes. This same Kenneth Flagg also owns one-half interest in Flagg Realtors, Inc. The detailed listing sheet concerning this property was introduced into evidence and contained a notation that the seller (Kenneth Flagg) would be willing to take a second lien note as part of the consideration. This sale of Kenneth Flagg’s property was closed on May 4, 1972, with certain oral modifications of two written contracts which were involved in the transaction. A part of the recited consideration was a six year note in the amount of $12,300, executed by Brown with Flagg Realtors as payee which was accepted by Realtor, together with $3,417.50 in cash, as the total sales commission. Realtor sent Harvel a check in the amount of $1,708.75, which was 50 per cent of the $3,417.50 cash commission received by Realtor, and which she subsequently negotiated. Realtor terminated the association with Harvel on May 12, 1972, and sent her a copy of a promissory note in the amount of $6,160. Realtor was the maker of such note and Harvel was payee. It was payable upon the payment of the R. P. Brown note. A letter dated May 16, 1972, accompanied the note from Realtor indicating that the note was for Harvel’s share of the commission on the Brown sale and that Realtor would disperse to her 50 per cent of any or all payments received on the note. It is also undisputed that Realtor’s commission was 5 per cent of the total sales price of the Bacarrat Apartments, and that the sales price was $342,300; however, Realtor contends that the commission should be calculated on the basis of the sum of only $340,000 since Kenneth Flagg, seller, was required to pay certain expenses he had not originally anticipated. Realtor contends that Harvel is only due, in cash, her proportionate share of the money which it received in cash, while Harvel contends she was entitled to be paid her total share of the commission in cash at the time of closing the sale. The trial court, sitting without a jury, found that Realtor was obligated to pay Harvel $6,791.25 in cash as of the May 4, 1972 closing date. The second transaction concerns a property known as the Gallant property. It is undisputed that Harvel secured a buyer for the property, and that she suggested and agreed to a six month deferred commission because Realtor accepted a promissory note which included the commission. Harvel does not dispute her receipt of certain payments and that she accepted her share of the deferred commission. She contends, however, that she is also entitled to receive her proportionate share of the interest received by Realtor on the deferred commission occasioned by the acceptance of the note. After hearing the evidence, the trial court found that Realtor was obligated to pay Harvel the sum of $29.60 on this transaction. The third transaction concerns a property known as the Arbuckle property. Har-vel claims a 20 per cent listing commission by way of a special incentive program, and Ted Ratcliffe, president of Realtor, testified that Realtor had credited but not paid Harvel a 10 per cent listing commission of $117.27. The trial court awarded that sum to Harvel. By points one, two, three and five, appellant contends that the court erred in finding that: Realtor agreed to pay 50 per cent of the sales commission at the consummation of a sale regardless of whether Realtor received its total commission in cash; Realtor was obligated to pay in cash the sums so found; Realtor was without justification or excuse in refusing to pay the sums demanded by plaintiff; and Realtor agreed to pay Harvel a listing fee on commissions not yet received. In the fourth point, appellant contends that the court erred in failing to find that no breach of the contract had occurred. The points are based upon the contention of appellant that there is no evidence to support such findings or, alternatively, the evidence is insufficient to support such findings, or that the evidence is so insubstantial and lacking in probative force that the findings are so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong. Harvel testified that she was operating under an oral agreement whereby she would share in total sales commissions upon the performance of certain services. The services were defined as sales and listing of property. Upon a sale she would normally receive 10 per cent of the total sales commission paid by the seller for a listing she obtained and, when she secured a purchaser, she would share 50/50 in the total sales commission received by Realtor. Furthermore, Harvel testified that- any arrangement for a deferred commission was required to be negotiated prior to closing. She had agreed and suggested that a note be taken by Realtor on the Gallant transaction prior to closing the sale. By the taking of the note on the Gallant transaction, she agreed that her share would be deferred until Realtor was paid the first six months payments on time. The commission was payable in six months. She further testified that she did not agree to accept a deferred commission on the Bacarrat Apartments either prior to or after the closing of the transaction on May 4, 1972, and that her claimed commission has been due to her in cash since that closing date. Deen Ellison, a salesperson working for Realtor during the same period as Harvel and called as a witness by Realtor, testified that she was working under an oral agreement similar to that of Harvel. Such agreement called for payment of commissions as they were received by Realtor and, if a note was involved, an agreement prior to or at closing was made by the selling agent, seller and Realtor, in which event the commission received by the salesperson would then be deferred until the note was paid. Ratcliffe testified by deposition, in response to questions by Harvel’s attorney, that generally the provisions set out in the sales contract control the payment of the commission unless special arrangements are otherwise made. It is not disputed that the Bacarrat transaction was closed on May 4, 1972, on oral modification of the written contract. The testimony of Ratcliffe was that Kenneth Flagg agreed to accept $340,000 plus expenses of obtaining a new loan, which he testified were approximately $2,300, and that $342,300 was the actual consideration received. Ratcliffe also testified that no listing fee was ever paid on Flagg owned properties; therefore, the undisputed 5 per cent commission based upon $340,000 agreed selling price would be $17,000, and SO per cent to Harvel would be $8,500 less the undisputed cash payment of $1,708.75, which was equal to the court’s finding of $6,791.25 due as of the May 4, 1972 closing date. The trial court also found that Realtor was obligated to pay in cash $117.27 to Harvel on the Arbuckle transaction. Rat-cliffe admitted that “$117.00 and some odd cents” was credited to Harvel’s account for a listing commission on the Arbuckle property and that such sum had not been paid. The trial court found that Realtor was obligated to pay Harvel $29.60 as a result of the Gallant transaction. The record indicates that Harvel agreed to a deferred commission included in an interest bearing note for both her share and Realtor’s share of the commission, and that she was entitled to a balance of $29.60 in connection with such transaction. In determining appellant’s no evidence points, all evidence must be considered in a light most favorable to appellee in whose favor the judgment has been rendered, and every reasonable inference deducible from the evidence is to be indulged in her favor. Harbin v. Seale, 461 S.W.2d 591 (Tex. 1970). From a review of the evidence, the circumstances and all reasonable inferences therefrom, we have concluded that appellant’s contentions that there is no evidence to support the trial court’s findings that Realtor agreed and was obligated to pay to Harvel, in cash, at the conclusion of the transactions, the sums so found, are not sustainable. Appellant contends that the evidence establishes a custom and usage in the real estate business that it is common and usual to accept a commission note and thereby deferring compensation to the sales agents. Therefore, appellant contends that any agreement between Harvel and Realtor includes this custom and usage as a part of such agreement. In order to establish a custom and usage it is necessary to show that it is generally known to the parties, certain and uniform or the parties contracted with reference thereto. Kamen v. Young, 466 S.W.2d 381 (Tex.Civ.App.— Dallas 1971, no writ); Grube v. Donnell Exploration Company, 286 S.W.2d 179 (Tex.Civ.App. — El Paso 1955, writ ref’d n. r. e.). We find that the evidence does not support such contention made by the appellant. Harvel testified that generally if a deferred commission by way of a note was to be involved in a particular transaction, there would be a specific agreement to that effect between the selling agent, the seller and management of Realtor; and that such an agreement was made with respect to the Gallant transaction prior to closing. Ratcliffe testified that generally the contract stipulates specifically how the commission is to be paid, and that any special arrangements are made at the time of closing of the sale. Ellison testified that any arrangement for deferred commission would be agreed to prior to closing by selling agent, seller and Realtor. It is undisputed that it is not unusual for a note involving commission to be taken, and that if such a note is taken, the selling agent’s compensation will be deferred; however, under the evidence it is apparent that the established usage and customer requires that the agent agree on these matters beforehand. Harvel testified that she did not agree to nor know about the commission note on the Bacarrat transaction prior to closing, although this was disputed by Ratcliffe, and her own testimony on this point was inconsistent. The amount of $29.60 due on the Gallant transaction was undisputed and a reasonable inference from the testimony as a whole indicated that Harvel was to share in the interest received by Realtor when both had agreed to a deferred commission and Realtor was receiving interest. The trial court as the trier of the facts is entitled to believe all, part or none of the testimony of any witness and draw its own conclusions therefrom. Further, the court may consider all of the circumstances together with the reasonable inferences therefrom and reach its conclusions by blending all evidence before it, and it is not required to credit all testimony of any witness. Martin v. Gurinsky’s Estate, 377 S.W.2d 710 (Tex.Civ.App. — Austin 1964, writ ref’d n. r. e.). In this case, it is apparent that the trial court opted to believe such portions of the evidence, including testimony, physical evidence and inferences therefrom, leading to the conclusion that Harvel and Realtor agreed that commissions would be paid upon consummation of a sale, in cash, unless otherwise agreed, and that Harvel did not agree to or know of the Bacarrat commission note prior to or at the closing. After carefully considering and weighing all the evidence as required in determining the sufficiency of the evidence, In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1952), we have concluded that there is sufficient evidence of probative value to support the court’s findings and that such findings are not against the great weight and preponderance of the evidence as to be manifestly unjust. Accordingly, points one through five are overruled. By points six through nine, appellant contends that Harvel has waived any right to receive cash for her share of the Bacarrat commission or that she has ratified the acts of Realtor or that an accord and satisfaction has occurred. In order to waive a known right, there must be an intentional relinquishment of such right or intentional conduct inconsistent with claiming it. Massachusetts Bonding & Ins. Co. v. Orkin Exterminating Co., 416 S.W.2d 396 (Tex.1967). Appellant contends that the evidence indicates Harvel waived her known right to a claim in cash of her share of the Bacarrat commission (1) by not protesting at the time of closing or (2) by cashing the check for the cash portion of the commission received by Realtor. We have carefully examined the record and have determined that the evidence does not support these contentions. The .first of the above contentions is based upon Harvel’s alleged knowledge that a commission note was to be taken by Realtor and that when she did not protest at the closing, she thereby waived any right to have her full share paid in cash. Appellant contends that evidence of such knowledge is supplied by inconsistent testimonial declarations which are binding upon her. United States Fidelity & Guaranty Co. v. Carr, 242 S.W.2d 224 (Tex.Civ. App. — San Antonio 1951, writ ref’d). A necessary portion of the test set forth in the above cited case is that any declaration must be deliberate, clear, and unequivocal. The hypothesis of mere mistake or slip of the tongue must be eliminated in order to preclude recovery. In the instant case, although Harvel did make the statement that she knew of the note and that she knew Realtor was to take the note, she was contradicting prior testimony, and on each occasion a possibility of mistake or confusion was raised. It is not questioned that she knew a second lien note was to be executed. The evidence raises the inference that it was not clear to Harvel as to whom the note was to be given, i.e., to Kenneth Flagg as an individual, or Kenneth Flagg operating as Flagg Homes, or to Flagg Realtors Inc. It is the contention of Harvel that Flagg, the seller was to take the note as part of the consideration for the purchase price. A party who testifies as to the existence of a fact is absolutely concluded thereby unless he makes a correction, retraction or explains it by reason of some mistake, oversight, misunderstanding or lack of definite recollection. Griffin v. Superior Ins., 161 Tex. 195, 338 S.W.2d 415 (1960). In the instant case Harvel first testified that she did not know of or expect to take a note for the commission on the Bacarrat transaction. She then testified that she did know of the note and that Flagg Realtors was to take the note as commission; however, she subsequently corrected and explained this inconsistent testimony. After each instance of inconsistent testimony she later explained or corrected the earlier testimony. Therefore, we hold that although the statements were contradictory, this did not necessarily remove the hypothesis that she was mistaken and the statements are not conclusive, but merely raise a fact issue for the court, as the trier of the facts, to determine. Rosales v. Rosales, 377 S.W.2d 661 (Tex.Civ. App. — Corpus Christi 1964, no writ). Further, it is not possible to waive a right unless that right is known. Stowers v. Harper, 376 S.W.2d 34 (Tex.Civ.App. — Tyler 1964, writ ref’d n.r.e.). From a complete review of the record, it is our opinion that there was sufficient evidence of probative value to support the finding of the court that Harvel did not in fact waive a known right to receive cash at the closing of the sale. Appellant also contends that since it is not disputed that Harvel knew of the note and that it would be taken by Realtor as commission shortly after the closing, she waived any right to receive cash when she cashed the check for her share of the cash received by Realtor. Waiver requires that a right be known and an intentional relinquishment of such right or intentional conduct inconsistent with claiming it. United States Fidelity & Guaranty Co. v. Carr, supra. Each of the various cases cited by appellant in support of such contention involved conduct on the part of the claimant which was definitely inconsistent with the claimant’s known right. Harvel insists that she did not know of the commission note until after the closing. She refused the proposition that she accept a deferred commission, called Mr. Flagg in an attempt to collect and, on the same day the check was deposited in her account, she contacted an attorney regarding the collection of the balance of her commission. It is our opinion that the evidence is sufficient to support a conclusion that she did not intentionally relinquish nor was her conduct inconsistent with claiming the right to collect cash at the time of closing. Also, Harvel’s continued insistence upon receiving cash at the time of closing is consistent with her contention that she had not knowingly ratified the acts of Realtor by accepting the check. Realtor contends that the Gallant transaction is evidence that the parties had accepted the version of the agreement given by Realtor, thereby ratifying such representations concerning established practices with respect to deferred commissions. In the Gallant transaction, it is undisputed that Harvel agreed, prior to closing, to a deferred commission and the agreement was that Harvel would be paid her share of the commission provided the first six months payments were paid on time. Further, under such agreement, Harvel was entitled to receive her share of the commission “in full” at the end of the six month period, while Realtor, in fact, had received through the monthly payments on the note, only a portion of its share. Therefore, the Gallant transaction does not establish that Harvel had agreed to receive her share of commissions at the identical time or in the same manner in which Realtor was actually paid. We hold that it was not error for the court to find that Harvel had not ratified the construction of the agreement placed upon it by Realtor. Appellant contends that an accord and satisfaction was effected by acceptance and negotiation of the check for payment of Harvel’s share of the cash received by Realtor. Mutual assent of the parties is an indispensable element of accord and satisfaction. It is essential that what is given be offered in satisfaction and extinguishment of the original demand and that it he so accepted, Call of Houston, Inc., v. Mulvey, 343 S.W.2d 522 (Tex.Civ.App. — Houston 1961, no writ). It must be expressed by acts or declarations with sufficient clarity that creditor is bound to know that his acceptance of the tendered payment will constitute full payment of his claim. H. L. “Brownie” Choate, Inc. v. Southland Drilling Co., 447 S.W.2d 676 (Tex.1969). In the instant case, Harvel refused to accept the offer of a deferred commission one or two days after the May 4, 1972 closing. The check for one-half of the cash received by Realtor was received by Harvel on May 8, 1972; she was terminated by letter May 12, 1972; she received a copy of a note for one-half of the Brown note on May 15, 1972; she contacted an attorney for collection and deposited the check on May 19, 1972. She also testified that she had contacted Kenneth Flagg, personally, regarding this collection prior to contacting an attorney. From this evidence, it is reasonable to conclude that Harvel did not agree to accept the note and did not accept the check as anything other than as a partial payment. There is no evidence that the offer of the check was conditioned upon accepting the balance to be paid by note. There was no notation on the check or any communication between Realtor and Har-vel that would indicate Harvel understood the acceptance was so conditioned. Therefore, it is our opinion that the evidence sufficiently supports the court’s conclusion that an accord and satisfaction had not been accomplished. Accordingly, appellant’s points six through nine are overruled. By points ten and eleven appellant attacks the trial court’s findings that a special relationship existed between Realtor and Harvel under the provisions of Article 6573a, Texas Real Estate Licensing Act, and that Realtor was obligated to pay 10 per cent penalty interest on $6,791.25 from May 4, 1972. We hold that the evidence does not support such findings as a basis for the portion of the judgment awarding such interest. Article 6573a sets forth the requirements for licensing as a real estate broker. It is undisputed that both Harvel and Realtor were licensed thereunder. Appellee seeks to sustain the findings of a special relationship under the holding in the case of Moore v. Sussdorf, 421 S.W.2d 460 (Tex. Civ.App.- — -Tyler 1967, writ ref’d n.r.e.), and the cases cited therein. The court found in that case that when brokers agree to work together on a deal and share a commission on the consummation, it constitutes a joint adventure and that such relationship is in the nature of a particular partnership and is governed by most of the same principles of a partnership, including a fiduciary relationship. Thus, justification of the 10 per cent interest awarded on the sum of $6,791.25 from the May 4, 1972 closing of the Bacarrat transaction is sought upon the ground of breach of a fiduciary relationship. We have carefully examined Article 6573a and the cases cited by appellee and find that this contention is not sustainable. Moore v. Sussdorf, supra, involves two independent brokers (not associated in the same organization) agreeing to work together on a particular real estate transaction and share the commission. In the instant case, Harvel and Realtor had a continuing relationship with only one real estate establishment involved, that of Realtor. A “broker” is defined by the Act as one responsible for the acts of salespersons operating through him and a salesman is defined as one employed or engaged by, or in behalf of, a licensed broker to do or deal in any act that a broker may engage. Therefore, by the testimony of Ratcliffe and Harvel, and under the Act the relationship established is that of a continuing broker-salesperson association and not a single broker-broker transaction such as that dealt with in Moore v. Sussdorf, supra. Further, a single' transaction is characteristic of a joint adventure, Booth v. Wilson, 339 S.W.2d 388 (Tex.Civ.App.— Texarkana 1960, writ ref’d n.r.e.) and a particular partnership. Gilmer v. Graham, 52 S.W.2d 263 (Tex.Comm’n App. 1932, holding approved). Such is not the situation here. The cases cited by appellee in support of the 10 per cent penalty interest prior to judgment all involve a breach of a fiduciary duty of a different character, such as that of an administrator, executor or trustee. In our opinion, such types of relationships are not analogous to that shown in the instant case. We thus hold that the penalty interest award should not have been allowed. By point number twelve, appel-lee contends that the trial court erred in failing to make requested additional and amended findings of fact and conclusions of law. The trial court may file additional findings of fact and conclusions of law if properly requested; however, it is not required to make findings on evidentiary matters or on every controverted fact or on findings that are in conflict with the original findings. Wade v. Taylor, 228 S. W.2d 922 (Tex.Civ.App. — Amarillo 1949, no writ). In any event, the record as a whole does not establish that the appellant has suffered prejudice or injury by the court’s failure to make the additional requested findings, and thus no reversible error is shown. Wagner v. Riske, 142 Tex. 337, 178 S.W.2d 117 (1944). Accordingly, appellant’s twelfth point is overruled. By cross-point, appellee complains of the failure of the judgment to include an award of attorney’s fee. We may consider the cross-point since appellee apprised the court of her dissatisfaction with the judgment by noting her exception and notice of appeal in the judgment. Maloney v. Strain, 410 S.W.2d 650 (Tex.Civ.App.— Eastland 1966, no writ). We note that the court found that timely written demand for payment for personal services rendered and labor performed was-made within the meaning of Article 2226, Texas Revised Civil Statutes. However, the court made no finding concerning the appellee’s entitlement to an award for attorney’s fee. Appellee did not object to the findings concerning the failure to award attorney’s fee. Thus, it is presumed that the omitted element or elements were found in such a way as to support the judgment disallowing attorney’s fee, providing the presumed finding is supported by the evidence. Paul v. Johnson, 314 S.W.2d 338 (Tex.Civ.App. —Houston 1958, writ dism’d). In this case, the evidence does not appear to be in accord with such presumed finding. Harvel testified she retained attorney Garner to prosecute this suit and that she was obligated to pay him. Garner testified that he expended 25⅛ hours in preparation and prosecuting the case and that the Texas Bar Association minimum fee schedule sets a fee of $40 per hour for such work or 1/3 contingent fee. Also, he stated that he and Harvel agreed to a 1/3 contingent fee. These matters were not controverted. Further, he prosecuted the cause to judgment. The term “reasonable attorney’s fees,” as used in Article 2226, has been construed to mean such fee as a litigant would pay his own attorney for prosecuting the case and not a speculative or contingent fee based on uncertainty of the litigation. Southland Life Ins. Co. v. Norton, 5 S.W.2d 767 (Tex.Comm’n App. 1928, holding approved); Wisznia v. Wilcox, 438 S.W.2d 874 (Tex.Civ.App. — Corpus Christi 1969, writ ref’d n.r.e.). There is evidence in the record to support the findings that a demand in writing was made upon Realtor 30 days prior to institution of suit and that the suit was for personal services rendered or labor performed as contemplated by Article 2226. It is well settled that a suit where recovery is sought for personal services or labor rendered will entitle one under Article 2226 to attorney’s fee even if the suit is for breach of a special contract. Danaho Refining Company v. Dietz, 398 S.W.2d 307 (Tex.Civ.App.— Corpus Christi 1965, writ ref'd n.r.e.); Huff v. Fidelity Union Life Insurance Company, 158 Tex. 433, 312 S.W.2d 493 (1958). It has been held that a suit involving brokerage or real estate commissions is one for personal services and thus attorney’s fees are recoverable. See Van Zandt v. Fort Worth Press, 359 S.W.2d 893 (Tex.1962) and Huff v. Fidelity Union Life Insurance Company, supra. In view of the foregoing, we hold that the evidence is sufficient to support an award of reasonable attorney’s fee, and to that extent appellee’s cross-point is sustained. Since it is for the fact-finder to determine a reasonable fee, this portion of the judgment is severed, reversed and remanded to the trial court with instructions to determine a reasonable attorney’s fee. Huffman v. Cox, 315 S.W.2d 319 (Tex.Civ.App. — Austin 1958, rev’d on other grounds) ; Kost v. Lancaster, 414 S.W.2d 514 (Tex.Civ.App.- — Houston 1967, writ ref’d n.r.e.). From our examination of the judgment and the court’s findings, we have determined that the sum of $7,699.09 awarded to the plaintiff included $29.60 on the Gallant transaction, $117.27 on the Arbuckle transaction and $6,791.25 together with 10 per cent penalty interest from May 4, 1972 to the day of trial on the Bacarrat transaction. In view of our holding that the penalty interest is not allowable, we reform the judgment accordingly. Thus, the judgment is reformed by reducing the same to $6,938.12, the total of the basic sums above mentioned with respect to the Gallant, Arbuckle and Bacarrat transactions. As we construe the judgment as drafted, attorney’s fee was denied. In view of our holding that reasonable attorney’s fee should be awarded in this case, the judgment insofar as it denies attorney’s fee is severed, reversed and remanded. In accordance with the foregoing, the judgment of the trial court is affirmed as reformed in part, and reversed and remanded in part.

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Harvey H. LANE, Jr., and Sterling Holloway, Appellants, v. Robert O. PHILLIPS et ux., Appellees. No. 7566. Court of Civil Appeals of Texas, Beaumont. May 16, 1974. Motion for Rehearing Overruled June 6, 1974. John W. Stayton, Austin, for appellant. James P. Hart, James H. Keahey, Austin, for appellee. KEITH, Justice. The appeal is from a judgment which ordered an accounting in the dissolution of a joint venture for the purchase and development of a large tract of land and we will designate the parties as they appeared in the trial court. The joint venture, which is the subject of this litigation, was known as the “Sterling Holloway Trust,” created by a written instrument dated December 13, 1971. The respective interests of the joint venturers were Holloway, 50 percent; Harvey H. Lane, Jr., 25 percent; and Robert O. Phillips and wife, jointly, 25 percent. The purpose of the joint venture was to consummate the purchase, development, and sale of a large tract of land in Mata-gorda County known as the Culver Tract, part of which Holloway had agreed to purchase, with an option to purchase the remainder. The cash payment of $220,000 was obtained from an Austin bank upon a note signed by Holloway, Lane and Phillips. While each was unconditionally liable to the bank for the entire face of the note, the joint venture agreement fixed their liability internally in proportion to their ownership in the venture. The written agreement, dated December 13, 1971, fixed the rights, duties, and obligations of the parties inter se, one of which bound Phillips to keep and maintain accurate books and records of the joint venture. Pending the expiration of the six-months holding period necessary to qualify the venture for long-term capital gains treatment under the tax laws, little actual progress was made toward the development of the land. During most of this period Phillips was in the Philippine Islands attending to other personal business interests. The original dispute between the parties centered around their differing versions of the plan of liquidation of the note of $220,000 used as the down payment on the Culver lands. Defendants claimed that it would be reduced at maturity, June 2, by the payment of the interest due thereon and $100,000 paid on the principal. Plaintiffs contended that it was to be renewed at maturity with liquidation being from funds generated by the venture. As early as May 1, Holloway wrote to Phillips, then out of the country, advising him that $100,000 would be due on the note on June 2, and inquired of Phillips if he would be in position to pay his $25,000 share thereof. Phillips advised Holloway by telephone about May 17 that he was not going to make this payment on June 2; and, on the following day, Holloway wrote to him about an alternate and diminished participation in the venture. Phillips did not respond. Holloway and Lane paid the bank $100,000 and accured interest on June 2 from their own funds, renewed the note for the balance, and joined in a lengthy letter to Phillips which, in effect, terminated the joint venture as to Phillips. Although each party supported his version of the liquidation schedule of the note, no one contended that it was to be paid in full on its maturity date of June 2, and the joint venture agreement was silent on the subject. Both theories were submitted to the jury; but, the jury failed to find in favor of either party, returning “we do not” answers to each of the special issues submitting the differing theories. The jury returned these answers to the several special issues which we now summarize: (1) We do not, to an inquiry asking if Phillips agreed with Holloway that the parties would make a substantial reduction of the principal of the note on June 2. (3) We do not, to an inquiry asking if Phillips represented to Holloway that he would have funds available to pay his share of a substantial reduction on the note on June 2, (8) We do not, to an inquiry asking if Holloway, Lane, and Phillips agreed that when the note became due on June 2 they would make no reduction in principal but pay only interest and renew the note. (10) $228,000 was the reasonable cash market value of the excess of the assets over the liabilities of the joint venture on June 2. (15) We do, to an inquiry asking if Phillips failed to keep himself properly informed of the affairs of the joint venture between December 13, 1971, and June 2, 1972. (16) We do not, to an inquiry asking if such failure violated the fiduciary duty to Holloway and Lane. (17) We do not, to an inquiry asking if Phillips failed to give reasonable attention to the affairs of the joint venture between December 13, 1971, and June 2, 1972. (19) We do, to an inquiry asking if Lane failed to furnish Phillips such information as was necessary to maintain proper records of the joint venture. (20) We do, to an inquiry that but for such failure to furnish information, Phillips would have maintained proper records. The Court accepted the verdict of the jury; and, both parties having made motions for judgment, the Court made findings from the uncontradicted record: (1) The joint venture was dissolved “by the express will” of Holloway and Lane by the exclusion of Phillips therefrom on June 2, 1972. (2) The business of said joint venture having been continued by Holloway and Lane after its dissolution on June 2, 1972, Phillips was entitled to recover the value of his interest therein on said date. (3) There was no evidence introduced upon the trial showing any damage caused to Holloway or Lane because of the dissolution and, therefore,s no reduction should be allowed from the value of Phillips’. interest therein. (4) Phillips’ interest in the joint venture on June 2 was one-fourth of the value of all of the assets thereof less one-fourth of all of the liabilities on said date. Whereupon, judgment was entered in favor of Phillips against Holloway and Lane in the amount of $57,000; and it was decreed that, after payment of said sum, Phillips would have no interest in the joint venture nor any obligation to pay any of the liabilities thereof; that Holloway and Lane indemnify Phillips and hold him harmless against all present and future liabilities of said venture. Holloway and Lane have appealed from the order overruling their amended motion for new trial. The parties have favored us with excellent briefs wherein all of the areas of the dispute are treated in a scholarly manner. Although defendants have presented eight points of error, they are summarized in the final post-submission argument in this terse manner: (1) Plaintiffs were never members of the joint venture. (2) Plaintiffs acquired no interest in the assets of the joint venture. And, (3) there was no evidence of the value of plaintiffs’ alleged interest in the joint venture. We disagree and affirm the judgment of the trial court for the reasons now to be stated. The thrust of defendants’ argument under the first contention advanced is expressed in this language found in their brief: “[I]t is clear that under either the old law or under the Uniform Partnership Act no joint venture in which the Phil-lipses were members ever came into legal existence. There may have been a ‘paper’ joint venture or partnership, but there was no joint venture in fact. This follows from the fact that the Phillipses did absolutely nothing in furtherance of the enterprise.” The agreement, after identifying the parties and the land in the first two paragraphs, continues: “It is hereby expressly agreed that the parties hereto shall form, and by this agreement do form, a Joint Venture, or partnership for the consummation of the purchase, the ownership, management and sale of said property. This Joint Venture shall be operated under the name “STERLING HOLLOWAY TRUST.” After fixing the respective interests in the venture, the agreement specifically provided that each adventurer would be liable for all debts and obligations incurred by the partnership in the same proportions, “including but not limited to the Five Hundred Fifty [Thousand] ($550,000.00) Dollar Vendors’ Lien Note executed in favor of the Sellers [Culvers] of said 480 acres, and a Two Hundred Twenty Thousand ($220,000.00) Dollar note payable to the Austin National Bank of Austin, Texas, representing a loan the proceeds of which were used to pay the down payment for said 480 acres.” The parties are not in accord as to the law governing our determination of the relationship which was created by their execution of the joint venture agreement just noticed. We believe that our determination must be made under the rule announced in Thompson v. Duncan, 44 S.W. 2d 904, 907 (Tex.Com.App., 1932), wherein Judge Leddy said: “Courts do not treat a joint venture as identical with a partnership, yet it is universally held that such relation is so similar in its nature to a partnership and in the contractual relation created thereby that the rights as to the members are governed by substantially the same rules that govern partnerships.” See also, Johnson v. Peckham, 132 Tex. 148, 120 S.W.2d 786, 788 (1938), and Woodrum v. Cowan, 468 S.W.2d 592, 598 (Tex.Civ.App., Austin, 1971). Indeed, in Weatherford v. Lee, 364 S.W.2d 730, 733 (Tex.Civ.App., San Antonio, 1963, error ref. n.r.e.), it was held: “A joint venture is governed by the same rules as a partnership.” This overly broad statement is subject to the qualification set out by our Supreme Court in the case of Brown v. Cole, 155 Tex. 624, 291 S.W.2d 704, 709, 59 A.L.R.2d 1011 (1956), saying: “To constitute a joint adventure there must be a community of interest and participation in the profits. It is in the nature of a partnership engaged in the joint prosecution of a particular transaction for mutual profit. Holcombe v. Lorino, 124 Tex. 446, 79 S.W.2d 307. “For a joint adventure to exist there must be a community of interest both as to the profits and losses, if any.” See also, W. H. Hodges & Co. v. Donley County State Bank, 407 S.W.2d 221, 224 (Tex.1966). Having reviewed the written agreement between the parties, the uncontradict-ed evidence as to the borrowing of the money from the bank to make the down payment upon the land, and the testimony of the parties, we are of the opinion that the joint venture came into legal existence at least as early as the date of the agreement, December 13, 1971. Art. 6132b, § 6(1), Vernon’s Ann.Civ.St. The usual tests of determination of the existence of a partnership were all present. Cf. Burr v. Greenland, 356 S.W.2d 370, 376 (Tex.Civ. App., El Paso, 1962, error ref. n.r.e.); First National Bank of Brown wood v. Chambers, 398 S.W.2d 313, 317 (Tex.Civ. App., Eastland, 1965, no writ). See also, Box v. Associates Investment Company, 389 S.W.2d 687, 690 (Tex.Civ.App., Dallas, 1965, no writ). Being of the opinion that Phillips became a member of the joint venture which became effective on December 13, 1971, we overrule defendants’ first point of error. In considering the defendants’ second contention, that the plaintiffs acquired no interest in the assets of the joint venture, we recognize the rule defendants urge upon us: “[T]he law of contracts is the backbone of the law of partnership.” Defendants argue from this premise that performance by Phillips of his obligations under the agreement was a condition precedent to the acquisition of any interest in the assets of the joint venture; and, not having performed (i. e., paid his share of the note to the bank on June 2), he had “no judicial remedy with respect to such interest until and unless they [Phillips and wife] perform.” Again we disagree and deny the contention so advanced. Holloway recognized, in his letter of May 18, 1972, to Phillips, that “our joint-venture agreement does not expressly provide for a forfeiture of the interest of a party not fulfulling his obligations.” Yet, in his letter of June 2, Holloway was joined by Lane in action which amounted to a forfeiture of all of Phillips’ rights in the venture. The late Justice Norvell, while upon the Court of Civil Appeals, spoke to the subject of forfeiture under a joint venture in the case of Welch v. Brock, 195 S.W.2d 940, 943 (Tex.Civ.App., San Antonio, 1946, error ref. n. r. e.), saying: “Brock’s title or interest is based upon the original agreement whereby the parties agreed to acquire the property for the joint benefit. The mere fact that Brock may have, at one time or another, been delinquent in payments due under the agreement would not ipso facto cause his interest in the property to terminate or be destroyed. The agreement as found by the jury does not contain a provision to that effect.” Although Justice Norvell did not cite authority for this clear holding, it is well supported by the recognized authorities. Thus, in 46 Am.Jur.2d, Joint Ventures, § 38, at 58 (1969), the textwriter says: “A joint venture is to be conducted by the parties to the undertaking, and the failure of any party completely to perform his part does not forfeit his fully acquired interest. Notwithstanding defaults and omissions, each has an interest in such assets as have been preserved or accumulated. Thus, default by a member of a joint venture will not justify the other members in excluding him from participation in the accrued assets.” (footnotes omitted) See also, Thompson v. Duncan, supra, wherein the court held that while defaults could bring about a dissolution of the joint venture, such termination would not work a forfeiture of the rights acquired by the defaulting joint venturer. Instead, said the court, “It is the general rule that when dealing with partnership or joint venture agreements the remedy of the complaining party, or his conventurer, is in equity for an accounting and settlement of the partnership affairs.” (44 S.W.2d at 907) As noted by Holloway, there was no provision in the agreement authorizing a forfeiture for nonpayment of any obligations due thereunder. This language from Henshaw v. Texas Natural Resources Foundation, 147 Tex. 436, 216 S.W.2d 566, 570 (1949), is operative: “Since forfeitures are not favored, courts are inclined to construe the provisions in a contract as covenants rather than as conditions. If the terms of a contract are fairly susceptible of an interpretation which will prevent a forfeiture, they will be so construed. . “Unless the consideration in a contract is expressed in terms which unmistakably will demand a forfeiture for nonperformance, a mere breach of such terms will not authorize the cancellation of the contract.” Plaintiffs’ rights became fixed when the parties borrowed the money from the bank, acquired the land from the Cul-vers (subject to the vendors’ lien), and executed the joint venture agreement. There was no condition precedent to the formation of the contract of the joint venture; and, there being no provision for forfeiture of plaintiffs’ rights thereafter, an accounting was his appropriate remedy. Defendants’ second point of error is overruled. Welch v. Brock, supra. Defendants challenge the jury finding that the reasonable net cash market value of the joint venture on June 2, 1972, was $228,000, by no evidence and insufficient evidence points. In passing upon this series of points (Nos. 4, 5, 6, and 7), we will follow the usual rules. As to the no evidence points, we will consider only the evidence supporting the finding of the jury; as to those claiming insufficiency of the evidence to support the finding, we will consider the record as a whole. Plaintiffs offered the only expert witness on value, E. Charles Lewis, whose qualifications are not challenged. His testimony covers many pages of the statement of facts and it is sufficient to say that under his testimony the jury’s finding was within the range of that given by Lewis. Under Lewis’ testimony, the two Culver tracts — one of which had been purchased by the joint venture and the other upon which the ventures had an option — were worth in excess of $1,500,000.00. Although he was cross-examined vigorously, he remained firm in his evaluation of the property. Defendants offered no testimony contradicting this offered by the plaintiffs. Market value of property is of necessity a matter of opinion. 2 McCormick & Ray, Texas Law of Evidence (2d ed. 1956), § 1422, p. 256, et seq., and cases therein cited. The jury, as the trier of the facts, was not bound by the expert opinion; but, the weight to be given to such testimony is ordinarily within the exclusive province of the jury. State v. Haire, 334 S.W.2d 488, 491 (Tex.Civ.App., Austin, 1960, error ref. n.r.e.). All of defendants’ evidentiary points relating to the value of the assets of the joint venture are overruled. In arriving at their answer to Special Issue No. 10, the jury was required to find separately the reasonable cash market value of the assets of the joint venture and the total of the liabilities thereof. Only after subtracting the total liabilities from the value of the assets could an answer be given to the question. Defendants now urge that there was no evidence to establish the amount of liabilities; hence the answer lacks support in the evidence, regardless of Lewis’ valuation testimony. Phillips offered in evidence an audited statement of the cash receipts and disbursements of the joint venture from December 6, 1971, to June 2, 1972, the accuracy of which Holloway declined to question. This audit showed that after payment of the interest upon the $220,000 note and return to the joint venturers of their contributions to the venture’s bank account, but without taking into consideration the $100,000 principal reduction on the note at the Austin Bank, the venture had a cash balance of $1456.94. Defendants’ principal contention under this point is that this audited statement of receipts and disbursements omits the liability item of accounts payable for land planners, engineers, architects, etc. These liabilities had been incurred by defendant Lane pursuant to a supplementary letter agreement with Holloway dated January 25, 1972, which had been executed without the knowledge of Phillips or his participation therein. According to Holloway, these were not liabilities of the Sterling Holloway Trust but of Lane, d/b/a Mata-gorda Dunes Development Company. Under the joint venture agreement, Lane’s obligations were not those of the venturers but were his own. Having reviewed the evidence in accordance with the established rules and finding no merit to defendants’ evidentiary points relating to the amount of the liabilities of the venture, each of such points is hereby overruled. Finally, defendants argue that the trial court erred in not offsetting the judgment against Holloway and Lane in the amount of $57,000 with the $25,000 Holloway paid the Austin Bank on June 2 when Phillips declined to participate in the partial payment. The short answer to the contention so advanced is that the only evidence of liabilities introduced before the jury disclosed the note to be in the principal amount of $220,000; thus, the full debt structure was taken into consideration when the evidence was introduced. We agree with plaintiffs when they argue: “The trial court did not err in refusing to give Holloway and Lane double credit by taking a net valuation based on this full debt structure and then reducing the net valuation by a portion of that debt structure ($100,000) a second time.” The record reflecting no error, the judgment of the trial court is in all things affirmed. . Appellants herein, whom we have designated defendants, actually brought suit first seeking a declaratory judgment. Appellees, whom we have designated as plaintiffs, brought suit within a few days thereafter seeking an accounting of the joint venture along with damages. The causes were consolidated for trial. . Hereafter we will speak of the plaintiffs, Mr. and Mrs. Phillips, as “Phillips.” . All emphasis herein has been supplied unless otherwise indicated. . Woodrum v. Cowan was reversed in part and modified by the Supreme Court. 472 S.W.2d 749 (Tex.1971). We cite the line of cases mentioned by the Court of Civil Appeals under syllabus three (468 S.W.2d at 598-599), the validity of which was not undermined by the action of the Supreme Court. . Defendants cite the following cases in support of the quotation: Rush v. First Nat. Bank, 160 S.W. 319 [Tex.Civ.App., Amarillo, 1913; affirmed 210 SW. 521 (Tex.Com.App., 1919, holding approved) ] ; Allison v. Campbell, 117 Tex. 277, 1 S.W.2d 866 (1928) ; Kent v. National Supply Co. of Texas, 36 S.W.2d 811 (Tex.Civ.App., Waco, 1931, error ref.). . This letter advised Phillips that defendants had reduced and renewed the note to the bank, returned Phillips’ contribution to the operating account of the venture, and continued: “[B]y this letter you and Mrs. Phillips are hereby released and discharged from all com-' mitments, obligations, and liabilities imposed upon you in the original joint-venture agreement of the Sterling Holloway Trust of December, 1971.” . Special Issue No. 10: “What do you find from a preponderance of the evidence was the reasonable cash market value of the excess, if any, of the assets over the liabilities of the Sterling Holloway Trust Joint Venture on June 2, 1972?” This was followed by the boiler plate definition of “reasonable cash market value.” The jury answered the issue: $228,000.00. The judgment was for one-fourth that figure, or $57,000. . The auditor’s report had footnote O appended reading: “The accounting records of the Joint Venture do not reflect a cash transaction involving a $100,000.00 payment on June 2, 1972 on the Austin National Bank note which was made by two joint venturers individually from personal funds.”

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2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

The TRAVELERS INSURANCE COMPANY, Appellant, v. W. H. APPELL et al., Appellees. No. 15268. Court of Civil Appeals of Texas, San Antonio. May 1, 1974. Rehearing Denied June 5, 1974. Lloyd, Lloyd, Ellzey & Lloyd, Alice, for appellant. Perkins, Davis, Oden & Warburton, Alice, for appellee. KLINGEMAN, Justice. Appellant, Travelers Insurance Company, appeals from a summary judgment entered against it in favor of appellees, W. H. Appell, Olmos Operating Company, Ap-pell Drilling Company and Texam Corporation, and a take-nothing judgment entered against it in favor of appellee, Appell Petroleum Corporation. The trial pertaining to the take-nothing judgment was before the court without a jury. No findings of fact or conclusions of law were requested of or filed by the trial court. The parties will be hereinafter referred to as they were designated in the trial court. On October 7, 1968, Travelers Insurance Company filed suit against W. H. Appell, Appell Petroleum Corporation, Olmos Operating Company, Appell Drilling Company and Texam Corporation, complaining of a debt of $230,049.56, allegedly incurred in connection with insurance purchased by the defendants from plaintiff. Defendants filed an answer: (1) specifically excepting to plaintiff’s failure to specify the time and manner in which such sum became due; (2) denying that defendants, W. H. Appell, Olmos Operating Company, Appell Drilling Company and Texam Corporation ever purchased any insurance from plaintiff; (3) asserting that any sums sought are barred by the Statute of Limitations; and (4) a general denial. Defendants also filed a motion for summary judgment and in support thereof attached an affidavit of W. H. Appell in which he states: (1) that he is the president of Appell Petroleum Corporation; that he is also an individual defendant and is also the president of Ol-mos Operating Company and Texam Corporation and was the president of Appell Drilling Company which no longer is in business; (2) that plaintiff issued several policies of insurance to Appell Petroleum Corporation only, all of which policies expired as of January 1, 1965; (3) that neither he, Olmos Operating Company, Appell Drilling Company or Texam Corporation owe any sums of money whatsoever to plaintiff; (4) that apparently the sums asserted are in connection with two policies issued to Appell Petroleum Corporation; (5) that the sums asserted apparently arose as the result of retroactive adjustments; and (6) that the suit filed therein was filed on October 7, 1968, and that the premium charges asserted are barred by the Statute of Limitations in that the cause of action originated more than two years prior to the filing of the suit. Several letters in connection with such policies are attached to such affidavit. Plaintiffs thereafter filed their First Amended Original Petition in which they reduce their demand to $29,117.10, asserting that defendants and each of them are indebted to plaintiff in such sum, and that the defendants have admitted in writing the correctness of such amount. Plaintiff also filed a Second Amended Original Petition which is basically the same as the First Amended Original Petition except that in addition to its claim of $29,117.10, it also asserts that the defendants are additionally indebted to them in the sum of $4,598.00, making a total of $33,715.10. A hearing was held on such motion for summary judgment, and the trial court granted said motion as to four defendants, W. H. Appell, individually, Olmos Operating Company, Appell Drilling Company and Texam Corporation, but overruled the motion as to Appel Petroleum Corporation. No severance was ordered. This judgment was appealed to this Court by plaintiff; and under date of September 28, 1971, this Court dismissed such appeal for want of jurisdiction. See Travelers Insurance Company v. Appell, 471 S.W.2d 886 (Tex.Civ.App.— San Antonio 1971, writ ref’d n. r. e.). Approximately two years later, a hearing on the merits was held in connection with the judgment here appealed from, and a summary judgment granted in favor of defendants, W. H. Appell, Olmos Operating Company, Appell Drilling Company and Texam Corporation; and a take-nothing judgment entered against plaintiff in favor of defendant, Appell Petroleum Corporation, after a trial before the court. This judgment is the subject of this appeal. Plaintiff asserts that the summary judgment was improperly granted as to the four defendants hereinbefore named because there were disputed issues of fact to be resolved; and also complain that the trial court erred in entering a take-nothing judgment against it in favor of Appell Petroleum Corporation. We will first consider plaintiff’s complaints with regard to the summary judgment granted to the four defendants, W. H. Appell, Olmos Operating Company, Appell Drilling Company and Texam Corporation. There is no evidence in the record whatsoever that these defendants were ever issued any insurance policies by plaintiff, nor is there any evidence that such defendants owed plaintiff any money. The only evidence pertaining to these defendants in the record is an affidavit made by W. H. Appell, hereinbefore mentioned, which states that he was president of the companies involved, and that no policies were ever issued to any of these four defendants by plaintiff, and that none of these defendants owe plaintiff any money. The summary judgment as to these four defendants was properly granted by the trial court. With regard to the appeal on the take-nothing judgment, plaintiff asserts that a letter from Appell Petroleum Corporation to plaintiff dated November 11, 1965, was effective to toll the Statute of Limitations and was also effective to prove and establish its claim against Appell Petroleum Corporation. Such letter is on the letterhead of Appell Petroleum Corporation addressed to Trav-lers Insurance Company, and the pertinent portions of such letter are as follows: “RE: Retro Adjustments Appell Petroleum Corp. RUB 622169 - 1-1-63/64 RUB 1789548 - 1-1-64/65 Dear Mr. Caughey: As we explained to you, we are not in a position to pay the retro adjustment of $29,117.10. At the present time, we are making an all-out effort to get our financial situation arranged so that we can pay off this additional premium. We shall appreciate any cooperation that you can give us in this matter. Sincerely yours, APPELL PETROLEUM CORPORATION” Appellee asserts that plaintiff’s claim was barred by the two year Statute of Limitations, Article 5526, Vernon’s Tex. Rev.Civ.Stat.Ann.; that such letter was insufficient to toll the Statute of Limitations ; that there is no evidence in the record establishing any debt or claim against it; that plaintiff wholly failed to prove up any debt or claim against it. A writing that is signed by the one to be charged is sufficient to remove the bar of limitations if it unequivocally acknowledges the justness of the claim and expresses a willingness to pay it. Article 5539, Tex.Rev.Civ.Stat.Ann.; Krueger v. Krueger, 76 Tex. 178, 12 S.W. 1004 (1890); Mullens v. Bailey, 374 S.W.2d 455 (Tex.Civ.App. — Corpus Christi 1964, no writ); Miller v. Thomas, 226 S.W.2d 149 (Tex.Civ.App. — Amarillo 1949, writ ref’d); 37 Tex.Jur.2d, Limitation of Actions, Section 157, et seq. (1962). The writing must contain not only an unqualified admission of a just and subsisting indebtedness but must also express a willingness to pay it. State v. Williamson-Dickie Manufacturing Company, 399 S.W.2d 568 (Tex.Civ.App. —Ft. Worth 1966, writ ref’d n. r. e.); McFadin v. Haggard, 398 S.W.2d 638 (Tex.Civ.App. — San Antonio 1966, no writ); Luck v. Riggs Optical Company, 149 S.W.2d 204 (Tex.Civ.App. — Ft. Worth 1941, no writ). We do not regard the letter here involved as being an unequivocal acknowledgment of the justness of plaintiff’s claim or an unqualified promise to pay such claim. At most, it is a promise to pay when able. A promise of a debtor to pay when able is a conditional promise, and in such a case the burden is on the plaintiff, if he relys on such promise, to prove that the debtor is able to pay subsequent to the promise and prior to the suit. Lange v. Carothers, 70 Tex. 718, 8 S.W. 604 (1888); Brickley v. Finley, 143 S.W.2d 433 (Tex.Civ.App. — El Paso 1940, no writ); Beeler v. Harbour, 116 S.W.2d 927 (Tex.Civ.App. — Ft. Worth 1938, writ ref’d); 37 Tex.Jur.2d, Limitation of Actions, Sections 169, 170 (1962). Plaintiff introduced no evidence as to defendant Ap-pell Petroleum Corporation’s ability to pay and thus wholly failed to prove defendant Appell Petroleum Corporation’s ability to pay at any time. The only evidence in this regard is a plain statement in the letter: “We are not in the position to pay the retro adjustment of $29,117.10.” Further, Mr. Appell testified at the trial that Appell Petroleum Corporation was no longer in existence at the time of the trial. Moreover, plaintiff failed to prove up in whole or part its debt or claim. Plaintiff’s petitions are not sworn to, and this suit can not be regarded as a suit on a sworn account. Rule 185, Texas Rules of Civil Procedure. None of the insurance policies were introduced into evidence. The only testimony with regard to such debt or claim was by Mr. Appell, who testified at the trial that he did not know the basis of the debt, and that he did not know whether it was just or true. This case is before us without any findings of fact or conclusions of law. The trial court’s judgment, therefore, implies all necessary fact findings in support of the judgment, and the judgment must be affirmed if it can be upheld on any legal theory that finds support in the evidence. Seaman v. Seaman, 425 S.W.2d 339, 341 (Tex.1968); Bishop v. Bishop, 359 S.W.2d 869, 871 (Tex.1962); Douglas v. Taylor, 497 S.W.2d 308 (Tex.Civ.App. — Houston [1st Dist.] 1973, no writ); Doss v. Blackstock, 466 S.W.2d 59 (Tex.Civ.App. — Austin 1971, writ ref’d n. r. e.); Rhoades v. Miller, 414 S.W.2d 942 (Tex.Civ.App.— Tyler 1967, no writ). All of appellant’s points of error have been considered, and all are overruled. Under the record, the judgment of the trial court is affirmed.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Jess G. BOHON, Appellant, v. The TRAVELERS INSURANCE COMPANY, Appellee. No. 732. Court of Civil Appeals of Texas, Tyler. May 2, 1974. Bert Creel, Tyler, for appellant. Ramey, Flock, Hutchins, Grainger & Jeff us, ' Tracy Crawford, Mike Hatchell, Tyler, for appellee. MOORE, Justice. Plaintiff Jess G. Bohon instituted suit against defendant, The Travelers Insurance Company, on an accident policy seeking recovery of disability benefits for an accidental injury sustained on April 20, 1969, alleged to have been caused by a fall while getting out of his automobile. Defendant pleaded a general denial and specially denied under a provision in the policy that plaintiff suffered disability resulting “directly and independently of all other causes from accidental bodily injury.” The insurance company further pleaded non-liability on the ground that the policy excludes from coverage disability caused or contributed to by disease. Trial was before the court and jury. In response to the special issues, the jury found that (1) appellant Jess G. Bohon suffered an accidental injury on or about April 20, 1969; (2) the injury resulted, directly and independently of all other causes, in total disability of the plaintiff within 20 days; (3) that such total disability continuously prevented, or in reasonable medical probability would prevent, plaintiff from engaging in any occupation or employment for wage or profit for 350 weeks; (4) that stenosis of both carotid arteries of plaintiff did contribute to his disability to the date of trial; (5) that such condition would not in reasonable medical probability contribute to his disability in the future; (6) that the cerebral vascular arteriosclerosis of plaintiff did not contribute to his disability to the date of trial; (7) that such condition would not in reasonable medical probability contribute to his disability in the future; (8) that the subdural hematoma on the left side of plaintiff’s head did not contribute to his disability to the time of trial; and (9) that such condition would not in reasonable medical probability contribute to his disability in the future. Upon motion by the defendant for judgment notwithstanding the verdict, the trial court entered a “take nothing” judgment against plaintiff Jess G. Bohon, from which he perfected this appeal. The parties will hereinafter be referred to as they appeared in the trial court. By his first four points of error, plaintiff asserts that the trial court erred in disregarding the jury’s verdict. He argues that the trial court was not authorized to enter a judgment non obstante veredicto because he contends there was at least some evidence of probative force to support the verdict. We have concluded that the evidence was sufficient to support the jury’s finding of disability from April 21, 1969, until October 1, 1969, and accordingly, reverse and remand to the trial court with instructions to enter judgment for the plaintiff for disability benefits under the policy in the amount of $1,207.14. It is now well settled that to sustain a judgment notwithstanding the verdict, the reviewing court must determine that there was no evidence of probative force on which the jury could have made its findings. Accordingly, in determining the propriety of such a judgment, the evidence adduced on the trial must be considered in the light most favorable to the losing party, conflicts must be disregarded, and every intendment reasonably deducible from the evidence must be indulged in favor of such party and against the judgment. 4 Tex.Jur.2d Appeal and Error, p. 407, sec. 841. Insofar as pertinent to this appeal, the policy of insurance sued upon insured plaintiff against “ * * * loss resulting directly and independently of all other causes from accidental bodily injuries * * The particular “loss” sued for was “ * * * continuous, total disability * * »» as provided for in Paragraph II.A of the policy which reads as follows: “ * * * if such injuries, within twenty days after the date of accident, shall result directly and independently of all other causes in total disability which shall continuously prevent the Insured from performing every duty pertaining to his occupation, the Company will pay weekly indemnity at the rate hereinbe-fore specified for the period of such continuous total disability, but for not exceeding fifty-two consecutive weeks. After the payment of weekly indemnity for fifty-two weeks as aforesaid the Company will continue the payment of weekly indemnity at the same rate thereafter so long as the Insured shall be totally disabled and continuously prevented by such injuries from engaging in any occupation or employment for wage or profit.” The policy contains an exclusionary clause, reading in part as follows: “The insurance under this Policy shall not cover suicide (sane or insane) or any attempt thereat, or hernia of any type, or the contracting of disease; nor shall it cover any loss caused or contributed to by disease or medical or surgical treatment therefor (except pus forming infection which shall occur through an accidental cut or wound), * * *.” The evidentiary burden incumbent upon one who claims under an accident insurance policy of the type here involved is now settled. The phrase “ * * * directly and independently of all other causes * * * ” is construed in law to mean the “sole” or “only” cause. Mutual Benefit Health & Accident Association v. Hudman, 398 S.W.2d 110, 112-113 (Tex.Sup.1965); Continental Casualty Co. v. Fountain, 257 S.W.2d 338, 344-345 (Tex.Civ.App., Dallas, 1953, writ ref.). Thus, under such a clause, it is the claimant’s burden to prove that the insured’s peril was the sole cause of disability, i. e., that it did not concur to any degree with other nonaccidental causes, and mere proof that the insured’s peril is “a” cause or even a “but for” cause, within the concept of “proximate cause,” is not sufficient. Mutual Benefit Health & Accident Association v. Hudman, supra. Where the question of disability is one for experts alone, as here, the un-controverted opinion of the experts are conclusive. Standard Life & Accident Insurance Company v. Roberts, 318 S.W.2d 757 (Tex.Civ.App., Amarillo, 1958, writ dism. w. o. j.); Combined American Insurance Company v. McCall, 497 S.W.2d 350 (Tex.Civ.App., Amarillo, 1973, n. w. h.). The burden of proving the duration of disability is on the insured. Standard Acc. Ins. Co. v. Cherry, 48 S.W.2d 755 (Tex.Civ.App., Texarkana, 1932, writ ref.). As stated by defendant in its brief, there is no dispute that plaintiff’s policy was in full force and effect at all material times, nor is there any question that the insured was and is totally disabled within the meaning of the policy. The sole question is whether or not plaintiff sustained his burden of proof that his disability resulted from accident “ * * * directly and independently of all other causes * * * ” within the meaning of Paragraph II. A. The evidence shows that on April 20, 1969, plaintiff sustained a fall as he got out of his car in the driveway of a home he owned in the State of Mississippi. The fall immediately caused a black eye and abrasions about the face. He returned to his home in Tyler, Texas, but his physical condition became such that he was hospitalized by his family physician, Dr. Sterling Moore, on April 25, 1969. The examination conducted during this hospitalization revealed plaintiff to be suffering from a number of significant conditions, including: (1) a 70% occlusion of both carotid arteries, (2) advanced arteriosclerosis, (3) a right hemisphere cranial lesion, later proved to be a subdural hematoma, and (4) pulmonary emphysema. The records of that initial hospitalization also reveal that plaintiff had previously suffered (1) vertigo, (2) moderate to severe headaches, (3) dizziness, and (4) personality changes, depression, or withdrawal. While it was not diagnosed during the April 1969 hospitalization, Dr. Moore diagnosed plaintiff as suffering from Parkinsonism secondary to arteriosclerosis as early as March of 1970. When plaintiff was first admitted to the hospital in April, 1969, Dr. Moore was immediately confronted with the problem of whether to treat first the cranial lesion (subdural hematoma) or the carotid artery stenosis. It was ultimately decided to send plaintiff to Dallas and there he was examined and subsequently underwent an operation for a subdural hematoma on the right side of his skull which, according to Dr. Moore, was probably caused by his fall in Mississippi. After that operation, he returned home and underwent two operations in June and July of 1969 to remove the obstruction in his carotid artery. Later, in January of 1972, Mr. Bohon underwent two other operations by the same Dallas surgeon for additional subdu-ral hematomas on the left side of his skull. The cause of the latter is not disclosed in the evidence. Dr. Moore testified that the hematomas were compatible with normal occurrences in patients who suffer from arteriosclerosis. Dr. Moore testified that the arteriosclerosis he had found plaintiff to be suffering from in April of 1969 was the result of a natural aging process and had occurred slowly over a period of years; that he had observed these symptoms of arteriosclerosis • — dizziness, depression, falling, fatigue, etc. —at least two years prior to April, 1969, and this was at least partially disabling him during that period. While Dr. Moore testified that plaintiff’s fall in Mississippi contributed to, and would contribute to some of his past and future disability, he testified it was not “ * * * the sole entity * * * ” that contributed to it. He testified he was of the opinion that plaintiff’s arteriosclerosis and depression contributed to his past, present, and future disability. Dr. R. J. Donaldson, who had never treated plaintiff, testified in answer to a lengthy hypothetical question on the issue of causation, that plaintiff’s accident “ * *. * could be * * * ” a cause of plaintiff’s disability but he disavowed being able to form any reasonably probable medical opinion as to whether plaintiff’s fall probably did, in fact, cause that disability. Specifically, the doctor testified: “Q. I don’t know whether you answered my question or not, Doctor. Is it your opinion that such an injury, caused by such a fall would in all reasonable medical probability cause such a disability as we have described in this state of facts? “A. Yes, it could have. “Q. And is it your testimony that it would have, that in your opinion it would have ? “A. I can’t say that.” As we view it, Dr. Donaldson’s testimony is of no probative force because first he did not testify nor was he asked whether the injury was “the” cause or “the sole cause” of the disability, and secondly, his testimony fails to rise above mere medical possibility. Thus, causal connection is left to surmise and conjecture. Such evidence is not sufficient to prove causation in cases of this type. See Insurance Company of North America v. Myers, 411 S.W.2d 710 (Tex.Sup.1966); Parker v. Employers Mutual Liability Co. of Wisconsin, 440 S.W.2d 43 (Tex.Sup.1969). It was Mrs. Bohon’s testimony that her husband’s condition had deteriorated since April of 1969, after his first operation, to the point that he could not perform any portion of his occupational duties, principally because of tremor in his right hand, unsteadiness on his feet, blackouts, and double vision. We are of the opinion that the foregoing evidence, standing alone, is legally and factually insufficient to sustain plaintiff’s burden of proof that the injury was the sole cause of his disability. If this were the only evidence offered by plaintiff, we would affirm the judgment. But the record reveals plaintiff offered other evidence sufficient to raise a fact issue upon whether the check tendered plaintiff for disability from April 21, 1969, until October 1, 1969, constituted an admission of liability. In this connection plaintiff offered in evidence a check dated December 16, 1970, in the amount of $1,207.14, which if calculated at $50.00 per week as provided by the policy, would represent payment disability for slightly more than 24 weeks. The check was delivered to plaintiff’s attorney but was never presented for payment. Upon the trial, defendant’s claims adjuster testified that when he tendered the check, he intended it as an offer of compromise. There is nothing on the face of the check, however, showing that it was intended as a compromise or a release. Moreover, the claims adjuster did not testify that he told the plaintiff’s attorney that the check constituted an offer to compromise. Furthermore, there is no evidence that plaintiff or his attorney ever discussed or offered to compromise. According to the claims adjuster, plaintiff’s attorney demanded payment in the face amount of the policy. It is within the discretion of the trial court to determine from the surrounding facts and circumstances whether or not the offer was an independent admission or an offer in compromise. Ditto v. Piper, 244 S.W.2d 547 (Tex.Civ.App., Fort Worth, 1951, writ ref., n. r. e.); Ginsberg v. Selbest Dress, Inc., 238 S.W.2d 621 (Tex.Civ.App., Dallas, 1951, writ ref., n. r. e.); McCormick and Ray, Texas Law of Evidence, 2d Ed. sec. 1142. By admitting the check in evidence, the trial court impliedly ruled that the check constituted an independent admission. Defendant’s second cross point contending the court erred in admitting the check in evidence is overruled. “Payment by the insurer of a claim made under a disability clause of a life contract constitutes an admission against interest and casts upon the insurer the burden of explaining the payment if it thereafter contends that the insured was not in fact disabled within the meaning of the terms of the policy.” Sec. 79:184, Couch on Insurance 2d. “An ordinary admission is not conclusive and may be rebutted, the weight to be given such statements being for the jury. * * *” Sec. 79:188, Couch on Insurance 2d. See also McMillan v. Gage, 165 S.W.2d 754 (Tex.Civ.App., Austin, 1942, ref’d., w. o. m.); Bolin Oil Company v. Staples, 496 S.W.2d 167 (Tex.Civ. App., Fort Worth, 1973, writ ref., n. r. e.); Wilson v. Armer Oil Company, 496 S.W.2d 702 (Tex.Civ.App., Fort Worth, 1973, n. w. h.). Since the jury found by Special Issues one and two that plaintiff’s injury resulted in total disability and such total disability had and would endure for 350 weeks, we think the conduct of the insurance company in tendering a check in payment of disability from April 21, 1969, to October 1, 1969, would constitute at least some evidence to support the jury’s finding for that period of time. We therefore hold that plaintiff is entitled to judgment on the verdict in the amount of $1,207.14, but further hold that the evidence is legally and factually insufficient to support the finding of disability after October 1, 1969. Defendant’s second cross point contends the trial court erred in admitting the check in evidence on the ground that it constituted nothing more than an offer to compromise is overruled. Apparently, the “take nothing” judgment was based on the hypothesis that no controversy existed between plaintiff and defendant as to disability between April 21, 1969, and October 1, 1969, since the company had already discharged its liability for disability during this period by tendering its check in payment thereof. This, however, is not the case. In denying liability on the policy, the insurance company inferentially denied liability on the check. Furthermore, upon the trial defendant inferentially denied liability on the check by taking the position that it amounted to nothing more than an offer of compromise. The “take nothing” judgment not only had the effect of relieving the insurance company of all liability on the policy, it also had the effect of relieving the company of any liability on the check. For the reasons stated, the judgment is reversed and remanded to the trial court with instructions to enter judgment in accordance with this opinion. . The judgment recited in part as follows: “ ⅜ * * it further appearing to the Court that the Defendant on the 2nd day of November, 1972, duly filed in this cause a Motion for Judgment non, obstante veredicto on the ground that the evidence raised no issue of fact and that a directed verdict for the said Defendant would have been proper, that reasonable notice of said Motion was given as required by law to Plaintiff, and that on hearing thereof both parties came by their attorneys and the Court having heard and considered such Motion, the evidence and argument of the Council, the Court made the following findings: “1. The Court is of the opinion and finds that the evidence is insufficient in law to support the jury verdict on special issue No. 3, and the answer to said issue should he disregarded ; “2. The Court finds that there is not evidence in the record to support the submission of an issue, or a finding by the jury that there was continuous total disability, resulting directly and independently of all other causes, from the injury after the twenty-four plus weeks already paid and evidenced by Plaintiff’s Exhibit No. 2; “It is accordingly ORDERED, ADJUDGED and DECREED by the Court that the Plaintiff, JESS G. BOHON, take nothing of and from the Defendant, THE TRAVELERS INSURANCE COMPANY.”

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Etta Mae BOOZER and O. O. Boozer, Appellants, v. Duane G. STEPHENS, Appellee. No. 751. Court of Civil Appeals of Texas, Tyler. April 25, 1974. Rehearing Denied June 6, 1974. David A. Lake, Tyler, for appellants. Saunders, Caldwell & Schmidt, Hugo C. Schmidt, Tyler, for appellee. McKAY, Justice. Appellee Duane Stephens brought suit against appellants Etta Mae Boozer and O. O. Boozer to recover an attorney’s fee. The alleged unpaid fee was incurred by reason of appellee representing Debra Smith, appellants’ niece, who was charged with being a juvenile delinquent. It was alleged by appellee that appellants had agreed to pay appellee the reasonable value of his services. After trial before a jury, judgment was rendered for appellee in the amount of $1,925.00. The jury found (1) that appellants agreed to pay appellee the reasonable value of services rendered in representing Debra Smith; (2) that the reasonable value of such services was $1,650.00; (3) that a reasonable attorneys’ fee incurred by ap-pellee in prosecuting this case was $600.00; and (4) that appellee did not accept $325.-00 in full payment for legal services rendered in behalf of Debra Smith. Appellants complain in points 3, 5 and 7 that the trial court erred in overruling their motion for judgment non ob-stante veredicto because special issues one, two and four are against the overwhelming weight of the evidence and, therefore, the judgment is without legal evidence to support it. In passing upon a motion n. o. v., the trial court may not grant such motion unless a directed verdict would have been proper, and where there is no evidence having probative force upon which the jury could have made the findings relied upon. Rule 301, Texas Rules of Civil Procedure; Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194 (1952); Eubanks v. Winn, 420 S.W.2d 698 (Tex.Sup.1967). In considering such a motion, the evidence must be considered in the light most favorable to the party against whom the motion is sought and every reasonable intendment deducible from the evidence is to be indulged in such party’s favor. Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547 (1962). Mrs. Boozer, one of the appellants, testified she agreed to pay and did pay ap-pellee $250.00 for representing her niece, and that appellee was employed August 16, 1970. She later paid appellee $50 and $25 which she said was for extra work he did, but she maintained that there was an agreement that $250.00 was all she was obligated to pay. Appellee testified the $250.00 fee paid was a retainer fee and that there was no agreement that such sum was all he would charge for his services representing Debra Smith. He testified that in addition to the Juvenile Court hearing, he had numerous conferences with the Boozers, the Smiths (Debra’s parents), the juvenile officer, the judge, the Sheriff, doctors, professional psychologist and others, and that originally, he did not intend to charge for all these hours, telephone calls and other services, but when he and Mrs. Boozer later disagreed and he was discharged, charges were added for all hours spent on the case. Exhibits were introduced showing statements sent by appel-lee to the Boozers (1) dated August 31, 1970, covering the period from August 16, 1970 through August 18, 1970, for balance of $237.50; (2) dated November 2, 1970, for the same period as above showing at $30 per hour a balance of $282.50; (3) dated November 10, 1970, covering the period from August 23, 1970 through November 2, 1970 (being the date appellee was asked to withdraw from the case) showing at $30.00 per hour a balance due from August 16 to November 10, 1970, of $893.48; (4) letter dated December 3, 1970, demanding payment of $893.48 claimed to be past due; and (5) itemized account of services and hours with a cover letter dated March 7, 1972, covering the period from August 16, 1970 through November 2, 1970, listing 55½ hours, apparently at $40 per hour with $1,907.05 shown to be due. We have reviewed the evidence carefully and we are of the opinion that it cannot be said that there is no evidence of probative value to support these issues and, therefore, points 3, 5 and 7 are overruled. By points 4, 6 and 8 appellants complain that the answers of the jury to issues one, two and four are “so contrary to the legal evidence of probative value as to be unconscionable and manifestly wrong in legal contemplation.” We consider these points to be questions of the sufficiency of the evidence and, therefore, we must consider and weigh all the evidence in the case, and we should sustain the point if the jury finding of a vital fact is so contrary to the great weight and preponderance of the evidence as to be clearly wrong and unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.Law Rev. 361. The appellants claim there was a contract for a sum certain, while appellee claims the $250.00 was a “retainer fee” to pay for his services in investigating and appraising the case. The record shows that appellee sent statements to appellants of different amounts at different rates for the same time period. While it is true there is a sharp dispute in the evidence, particularly between the two principal witnesses, Mrs. Boozer and appellee, the jury chose to accept appellee’s version of the transaction between them. It is unfortunate that there was not a better understanding between the attorney and his clients, but we are unable to say that the jury findings are so contrary to the great weight and preponderance of the evidence as to be clearly wrong and unjust. While appellee alleged in his petition that “Defendants agreed to pay to plaintiff * * * the total sum for services rendered”, the case was tried on the quantum meruit theory. If special issue one was a contract issue, it was apparently disregarded by the court in rendering judgment. Appellants have not directly raised the point that “Where there exists a valid express contract covering the subject matter, there can be no implied contract,” and hence no recovery in quantum meruit. Freeman v. Carroll, 499 S.W.2d 668 (Tex. Civ.App. — Tyler, 1973, writ ref’d, n. r. e.). However, the same record may contain evidence which will support either theory. Freeman v. Carroll, supra. If it could be said that appellee’s pleading was upon express contract and not upon quantum mer-uit, the case was tried upon quantum mer-uit by consent. Rule 67, T.R.C.P., provides that “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleadings * * * but failure so to amend shall not affect the result of the trial of these issues * * *Any defect or omission in a pleading is deemed to have been waived unless specifically pointed out in writing to the court before the charge to the jury; likewise any complaint as to an instruction or issue in the court’s charge must be distinctly pointed out to the court by objection or it is waived. Rules 90,274, T.R.C.P. Since this case was tried upon quantum meruit and appellee’s evidence showed that he actually performed services for the appellants’ niece for the number of hours he alleged, we cannot say the jury findings to issues two and four are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. If appellants desired to have the court submit an issue to the jury to determine whether there was a contract for appellee to perform such legal services for the sum of $250.00, then such issue should have been requested. We find no such request in the record. Points 4, 6 and 8 are overruled. The last point of error (point two) involves the question of admissibility of a power of attorney over Debra Lynn Smith given to the appellee by Henry and Patsy Smith, the parents of the girl. When the instrument was tendered into evidence, the appellants objected indicating that its admissibility should be limited because the instrument was only relevant as between the parties who signed it and was not relevant as between the appellants and appellee. The trial court overruled the objection. Prior to the offer of the exhibit into evidence, testimony was elicited from Henry Smith that he had given to the appellee a power of attorney. No objection was made to this testimony. The exhibit itself only confirmed what the earlier testimony had established. Since no objection was made to the testimony involving the power of attorney, the admission of the instrument itself was not error. If the offer of the power of attorney was subject to a valid objection, such objection was waived because of the appellants’ failure to object when the prior testimony was offered. The trial court correctly overruled the objection. Hundere v. Tracy & Cook, 494 S.W.2d 257 (Tex.Civ.App.—San Antonio, 1973, writ ref’d, n. r. e.); New Hampshire Fire Ins. Co. v. Plainsman Elevators, Inc., 371 S.W.2d 68 (Tex.Civ.App.—Amarillo, 1963, writ ref’d, n. r. e.); City of Gladewater v. Dillard, 312 S.W.2d 530 (Tex. Civ.App.—Texarkana, 1958, no writ); Rowe v. Liles, 226 S.W.2d 253 (Tex.Civ.App.—Waco, 1950, writ ref’d). Moreover, if the trial court did err in not limiting the exhibit’s admissibility, we think it was harmless error. Point two is overruled. After due consideration of Appellants’ point of error No. 1 involving alleged improper jury argument, we respectfully overrule the point. The judgment of the trial court is therefore affirmed. . “SPECIAL ISSUE NO. 1 Do you find from a preponderance of the evidence that DEPENDANTS agreed to pay PLAINTIFF the reasonable value of services rendered in representing DEBRA SMITH? Answer ‘We do’ or ‘We do not.’ ANSWER: We do “SPECIAL ISSUE NO. 2 What do you find from a preponderance of the evidence to be the reasonable value of services rendered by PLAINTIFF in the representation of Debra Smith? Answer in dollars and cents. ANSWER: Sixteen Hundred Fifty and no cents.” ($1,650.00) “SPECIAL ISSUE NO. 3 What do you find from a preponderance of the evidence to be a reasonable fee for Attorney fees incurred by PLAINTIFF in prosecuting this ease against the DEFENDANTS herein? Answer in dollars and cents. ANSWER: Six Hundred Dollars and no cents.” ' ($600.00) “SPECIAL ISSUE NO. 4 Do you find from a preponderance of the evidence that Mr. Duane Stephens accepted $325.00 in full payment for legal services rendered in behalf of Debra Smith? Answer ‘We do’ or ‘We do not’. ANSWER: We do not.”

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

LAKELAND PROPERTIES, INC., Appellant, v. Ruth Vivian MANGUM, Appellee. No. 7557. Court of Civil Appeals of Texas, Beaumont. April 25, 1974. Rehearing Denied May 16, 1974. Jones, Tanner & Pace, Livingston, Robert N. Hinton, Jr., Houston, for appellant. Clayton Malone, Livingston, for appellee. DIES, Chief Justice. In June, 1972, James L. Dannheim, Der-rill G. Whitten, and Lakeland Properties, Inc., as plaintiffs, filed suit against Ruth Vivian Mangum, as defendant for “actionable fraud." They alleged that during the months of May and June, 1969, Dannheim, Whitten, and another, had discussions with Mangum concerning a land venture near Lake Livingston. The defendant Mangum represented she knew of an 80 acre tract which could be bought for $50,000 and she would contribute merchantable timber worth $18,000 as her share of the venture. In August, 1969, the parties formed a corporation in which 36% of the stock (360,000 shares) was owned by Mangum, and substantial dividends were paid the shareholders through May, 1971. On May 27, 1971, Lakeland Properties, Inc., agreed to purchase the Mangum stock, paying some cash and giving her a note for $54,000. Plaintiffs alleged that this note was given in reliance that Mangum had deeded the timber to the owners of the 80 acre tract, which was false and fraudulent. In addition to monetary damages, plaintiffs prayed for an injunction to prevent Man-gum from negotiating the note, and in their prayers asked for the $54,000 due on the note. By a first supplemental petition, plaintiffs alleged that Mangum falsely represented the cost of the 80 acre tract as being $50,000, whereas in truth and in fact it was $32,000. Trial was to a jury which found among other things that defendant Mangum represented to her partners that the true cost of the 80 acres was $50,000; that this was false and known by her to be false; relied on by Dannheim and Whitten; but that they possessed knowledge prior to December 31, 1969, as would incite an inquiry in the mind of an ordinarily prudent person to ascertain the true purchase price of the 80 acres; that defendant Mangum’s misrepresentations could have been discovered by them by the exercise of reasonable diligence; and they failed to find she represented she was contributing $18,000 merchantable timber for her interest. The jury further found that she represented to Lakeland Properties, Inc., that the purchase price of the 80 acres was $50,000, but they failed to find this was false. A take nothing judgment was rendered by the court on October 27, 1972. The judgment recited: “The court finds that the jury verdict is to the effect that the plaintiffs were precluded from any recovery because the time for this cause of action had run under the Statute of Limitations. . that the Plaintiffs possessed such knowledge prior to December 31, 1969 as would have incited inquiry on the part of the Plaintiffs to determine the actual purchase price of the subject land and that the Plaintiffs did not exercise reasonable diligence to determine the true purchase price of the subject land.” This case was appealed, and we affirmed. Dannheim v. Mangum, 498 S.W.2d 224 (Tex.Civ.App., Beaumont, 1973, no writ). The case we now review was filed November 3, 1972, in the same District Court that rendered the above-referred to judgment by Ruth Vivian Mangum, plaintiff, against Lakeland Properties, Inc., defendant, on the $54,000 note previously given by Lakeland in partial payment of the Mangum stock. Trial was again to a jury which found that Ruth V. Mangum was issued 360,000 shares of stock in Lakeland on March 12, 1970, in exchange for the $54,000 note dated June 25, 1971, that the stock was “something of value”; they failed to find Ruth Mangum obtained this note by representing to Lakeland that she had given something of value for her stock. Judgment for Ruth Mangum on the note plus interest, plus attorneys’ fees followed on August 9, 1973, from which Lakeland perfects this appeal. After the selection of the jury, but before any evidence was adduced, plaintiff Mangum filed a motion to sever asking “that the pleadings set out in the Defendants Answer having to do with tort in the nature of fraud be severed as a separate suit,” giving as her reason that this issue had been litigated in the previous lawsuit. This motion was sustained by the court, stating as follows: “The case at bar, however, we have a different slant on it, in that the case, 8067, was filed raising the question of fraud, tort action, everything else, and it was tried extensively on that question. At that time it was submitted to a jury, and the jury answered certain issues, the case was carried to the Court of Civil Appeals in Beaumont, they affirmed it, there isn’t a final judgment on it, but in the light of the record at this time I think the Court, the Trial Court, must look to that holding thus far. The jury finding in response to Special Issues in that case conclusively and affirmatively found there was no fraud on the part of the conveyance, on the part of Mrs. Mangum to the corporation, which is the defendants in this cause of action in Cause No. 8110. The jury’s finding in that cause of action, where the question of fraud was raised and an issue submitted, found there was no cause of action on the element of fraud, therefore, I feel that it would be inadvisable for this Court now to go back into or permit going back into those questions or those elements of fraud, No. 1. A corporation issued capital stock for land, the capital stock was issued, a certain percentage, for a certain percentage of the capital stock. Later on, I take the position that there’s ratification on the part of the corporation, in that the stock and land that was conveyed and the values of stock issued, the ratification of it, to permit now the defensive questions of going into all the elements of fraud that were raised in the original case, Cause No. 8067, would be a violation of the rules to the point that it would be an endless matter because every time a case came up, once it had been adjudicated, the same element of fraud could be raised. I think the element of fraud was thoroughly, completely, and extensively weighed and tried in Cause No. 8067 in which the jury found there was no fraud. “The Court is sustaining this motion up to the point that you will not be privileged to go back into any question of fraud that was covered by the original cause of action, 8067, which was submitted to the jury in that cause of action. I think you have a different question here, I think you have a question of contract; that if there had been no question of fraud raised in the prior pleadings, the prior case, and untried, then I think you would be correct in your position, that you would have a defensive issue on fraud to raise in that point. In response to Special Issues that were raised in Cause No. 8067, after the corporation, the issue of fraud was submitted to the jury as to Derrill G. Whitten and James L. Dannheim, Special Issue 11, as to one of the defensive issues that you have raised here: ‘Do you find from a preponderance that Ruth Vivian Mangum represented to James L. Dannheim and Darrell G. Whitten that she was contributing $18,000 worth of merchantable timber for her thirty-six per cent interest in the partnership for the purchase of eighty acres of land?’, the jury fouild she did not. I might call attention that this case on appeal, there was no question raised on some of those issues. The only three points raised was no evidence rule. “The next issue that I think the Court would have to look to as to making a determination on this, Special Issue No. 20.: ‘Do you find from a preponderance of the evidence that Ruth Vivian Man-gum represented to Lakeland Properties, Incorporated, the true purchase price of eighty acres of land was $50,000 at the time that Lakeland Properties, Incorporated, issued thirty-six per cent of its stock?’, and they said: ‘We do.’ “The following issue: ‘Do you find from a preponderance of the evidence that such representation of Ruth Vivian Mangum was false?’, and: ‘We do not.’ “Special Issue No. 28: ‘Do you find from a preponderance of the evidence that Ruth Vivian Mangum represented to Lakeland Properties, Incorporated, that she had contributed $18,000 worth of merchantable timber for her thirty-six per cent interest in the partnership for the purchase of eighty acres of land at the time that Lakeland Properties, Incorporated issued thirty-six per cent of its stock to her?’ The answer by the jury: ‘We do not.’ “Further on that same point, Special Issue No. 37: ‘Do you find from a preponderance that after June the 10th, 1969, Ruth Vivian Mangum made additional representations to James L. Dann-heim and Derrill G. Whitten that the true purchase price of the land, of the said eighty acres of land, was $50,000?’ We do not.’ “Special Issue No. 43: ‘Do you find from a preponderance of the evidence,’ predicated on 20, ‘that after June the 10th, ’69, Ruth Vivian Mangum made additional representations to Lakeland Properties, Incorporated, that the true purchase price of the said eighty acres of land was $50,000?’, and it says: We do not.’ “Now, gentlemen, that was questions, a question of fraud, which they went into extensively in the original trial in which there was a finding that there was no question of fraud. In the case that went up to the Court of Civil Appeals, —Give me that opinion. “MR. McCLENDON: Your Honor, would you like to use this copy ? “THE COURT: Is that a copy of the original opinion from the Court of Civil Appeals? Well, he’ll be here with the original in a moment. He’ll be here in a moment. “(Reading aloud from the opinion re-ferres [sic] to.) “Now, the case has been affirmed and the opinion delivered on July 19th of 1973. Gentlemen, to permit a defensive issue that has already been tried and passed on by a jury as to the element of fraud prior to the issuance of this stock, it seems to me would be an endless and prohibitive permission on the part of the Court to rehash after one jury has already passed on the very same issues that could be raised at this time. Therefore, I am sustaining the motion and limiting the defensive issues on fraud to and including the date of the issuance of the stock, I mean the capital stock, or limiting it to anything that might have been done as a corporation, as an element of fraud to the corporation. “I find some cases holding that where ratification has been made, that it’s conclusive. I further take the position that the ratification of 1971 on the issue of, upon the purchase of the stock, outstanding stock, of Vivian Mangum and Burchfield, almost is a complete ratification of their act of 1969 at the date of the issuance of the stock. The presumption would be that the corporation gave full value and that they received full value for the issuance of their corporate stock. Sustained up to that point. “Counsel for the defendant, you may have a bill for all of the rulings of the Court.” Appellant’s first seven points attack the trial court’s action in granting the motion for severance. It says that Rule 41 of Texas Rules of Civil Procedure is intended to correct a mis-joinder or non-joinder; that the court erred in basing its order on res judicata or ratification which was not affirmatively plead; appellee had no pleadings to limit the defense of fraud to occurrences after March 12, 1970; that this was an arbitrary date; and resulted in preventing Lakeland from proving Mangum was not a holder in due course of the note. The date of March 12, 1970, was the date the stock of Lakeland Properties, Inc., was issued. As previously noted in this opinion, the same trial judge granted the “motion to sever” as had tried the previous case. He certainly could take judicial notice of this previous case without formal pleadings, since it involved the same subject matter and some of the identical parties. Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274, 276 (1961) : “It is well recognized that a trial court may take judicial notice of its own records in a cause involving the same subject matter between the same, or practically the same, parties.” (Citing authorities) (See authorities cited in 23 Tex.Jur.2d, Evidence, §§ 26, 47.) The mistaken designation of Appel-lee’s motion as “a motion to sever” is not fatal under our practice. Rule 71 of T.R. C.P. See Texas Highway Department v. Jarrell, 418 S.W.2d 486 (Tex.1967). As previously noted, in the first lawsuit Lakeland sought judgment for $54,000 due on the note, alleging the same “fraudulent” representations which it now seeks to relit-igate in this controversy. In the case of Dannheim and Whitten, while the jury supported their contentions, it found they were barred by limitations. In the case of our appellant here, Lakeland, while the jury found that Mangum represented the true purchase price of the 80 acres as being $50,000, they failed to find (S.I. 21) that this was false. And they further failed to find (S.I. 28) that she had represented to Lakeland that she had contributed $18,000 worth of merchantable timber for her interest in the 80 acres of land. Thus, we conclude that the contention of fraud by Lakeland has already been ■ litigated, and the court was correct in restricting any such proof to a point in time after the stock was issued (March 12, 1970). Appellant’s other points of error only present various shades of this same contention. All points of error are overruled and the judgment of the trial court is affirmed. STEPHENSON, Justice (concurring). I agree with Chief Justices Dies that this case should be affirmed. The two reasons given in the dissenting opinion for reversing this case come solely from the fertile mind of Associate Justice Keith and are not raised by a point of error, or the statement or argument under any point of error. In spite of the assertion in the dissenting opinion that “[pjoints three and four go to the heart of plaintiff’s case in her suit upon the promissory note,” I do not find that to be a fair appraisal of those points of error. Appellant’s-points of error read as follows: “Third Point ..“The judgment of the trial court is fundamentally erroneous in that the motion to sever was granted on the basis of ratification, a theory which was not affirmatively plead as a ground for judgment. “Fourth Point “The trial court erred in granting the motion to sever on the basis of ratification in that appellee did not show that the appellant Lakeland Properties, Inc. had knowledge of the actual terms of the transaction which it allegedly ratified.” Following a brief mention of ratification, the dissenting opinion, without further explanation, reaches the matter of the failure of Mrs. Mangum to plead and prove that the transaction was fair and just to the corporation. I feel that it is fair to make the statement that appellant does not raise that question of law in its points three and four or in any other point of error. In fact, appellant comes no closer to that subject anywhere in its brief, than the citation of the Popperman Case for the proposition that “[t]he director seeking recovery on the basis of ratification has the burden of proving the necessary element of that theory.” There is not a word in appellant’s brief suggesting it was error for the trial court to allow plaintiff to recover because she failed to plead and prove the transaction was fair and just to the corporation. The dissenting opinion makes no claim that such failure of pleading and proof raises a matter of fundamental error, but only that the question is raised by appellant’s points three and four. I here cite by reference, the cases cited in the dissenting opinion for the proposition that the failure to present a point of error complaining of the trial court’s action precludes appellate review, unless the error is fundamental. Rule 97(a) is discussed at length in the dissenting opinion, even though the admission is made that Lakeland does not raise that question by any of its points of error. However, the suggestion is made that the general rule is of doubtful validity when Rule 97(a) is involved, citing Griffin v. Holiday Inns of America, 496 S.W.2d 535 (Tex.1973). In my humble opinion, the Griffin Case raises no question as to the validity of the general rule. The situation is reversed in the Griffin Case, and the appealing party is the one who should have filed the compulsory counter claim. The Griffin Case says, in effect, that the failure to comply with Rule 97(a) may be considered by the Supreme Court as a reason for upholding the action of the courts below, in passing upon the res judicata question. No court (including Griffin) has said that an appellate court may consider the failure to comply with Rule 97(a) as a ground for reversal in the absence of a point of error. KEITH, Justice (dissenting). I respectfully dissent. The majority, entranced-by the trial court’s colloquy with counsel while passing upon plaintiff’s “motion to sever”, has completely overlooked the controlling effect of Rule 97(a): this suit was a compulsory counterclaim in the first proceeding. In order to demonstrate such fact, it is necessary that I add to the already lengthy statement. Lakeland Properties, Inc., was a party plaintiff in the original suit, having sought damages from Mrs. Mangum for fraud in the inducement of the execution and delivery of the promissory note now involved in this cause. It failed to carry its burden of persuasion and did not obtain favorable answers from the jury to the issues on fraud and the judgment went against it upon that trial. Although it duly appealed from the judgment, it assigned no points of error and the judgment was affirmed. Dannheim v. Mangum, 498 S.W.2d 224 (Tex.Civ.App., Beaumont, 1973, no writ). Mrs. Mangum did not file a cross-action upon the note in the original suit despite the requirement of Rule 97(a), even though the note had been in default for several months before the suit went to trial. Instead, a week after the order overruling Lakeland’s motion for new trial in the first suit, she instituted this suit to recover on the note. Lakeland answered the present suit with a verified pleading setting up the prior litigation and contending that the present suit on the note should have been asserted as a compulsory counterclaim under Rule 97(a), and alleged the concurring elements necessary for making the counterclaim compulsory. See: 2 McDonald, Texas Civil Practice (1970 Rev.Vol.) § 7.49, p. 283. Alternatively, Lakeland pleaded the former litigation was res judicata of the present suit. No formal order was entered disposing of the plea of compulsory counterclaim, but our statement of facts reveals tht the plea was presented, argued, overruled, and an exception duly noted. This was sufficient to preserve the question for review. See and compare Marek v. Baylor County, 430 S.W.2d 220, 222 (Tex.Civ.App., Eastland, 1968, error ref. n. r. e.); Webb v. Mitchell, 371 S.W.2d 754, 761 (Tex.Civ.App., Houston, 1963, no writ). Unfortunately, Lakeland does not present a direct challenge to this ruling by any of its points of error. Generally, it is mandatory that an appellant comply substantially with the briefing rules in order to gain appellate review. Cf. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960); Leal v. Aluminum Company of America, 443 S.W.2d 942, 945-946 (Tex.Civ.App., Corpus Christi, 1969, no writ). Indeed, in State Farm Mutual Automobile Ins. Co. v. Cowley, 468 S.W.2d 353, 354 (Tex.1971), the Court held that the failure to present a point of error complaining of the trial court’s action precludes appellate review, unless the error is fundamental. Whether Rule 97(a) is applicable to a particular case would not ordinarily be considered to be fundamental error. Cf. McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265 (1957). But this general rule is of doubtful validity when Rule 97(a) is involved. Griffin v. Holiday Inns of America, 496 S.W. 2d 535 (Tex.1973). The time and place for Mrs. Mangum to have sought recovery upon the promissory note was in the original litigation. If we can reach the matter, a rendition of the judgment is required.- I also disagree with the majority’s conclusion stated in the last paragraph that “Appellants’ other points of error only present various shades of this same contention.” The third and fourth points of error, so summarily rejected, are entitled to consideration under the liberalized rules enunciated in Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478, 482 (1943): “[Tjhe Court will pass on both the sufficiency and the merits of the ‘point’ in the light of the statement and argument thereunder.” So tested, I am of the opinion that we are authorized to consider such points notwithstanding each refers to the error of the court in sustaining the “motion to sever.” The presentation under these points is much broader than the opening phrases therein. Points three and four go to the heart of plaintiff’s case in her suit upon the promissory note. On May 27, 1971, plaintiff was the owner and holder of 36 percent of the outstanding stock of defendant corporation and was a member and chairman of the Board of Directors. On that date she entered into a contract with Dannheim and Whitten, both directors and president and secretary, respectively, on behalf of the corporation, whereby the corporation agreed to redeem her stock. Pursuant to this agreement, she received $36,000 in cash from the corporation and it executed and delivered its promissory note to her in the principal sum of $54,000, payable on June 25, 1972, bearing interest from date until paid at the rate of 8 percent. As indicated earlier, the corporation pleaded fraud not only in the original issuance of the stock, but in the contract to repurchase or redeem. It also pleaded a complete lack of consideration supporting the note. Testimony tending to support each of these defenses was tendered by the defendant and excluded by the trial court because of its earlier action upon the “motion to sever.” Such testimony is now in our record in the form of bills of exception. Furthermore, the trial court’s action in excluding the evidence was based, in part at least, upon the concept that the corporation had ratified the entire transaction whereby Mrs. Mangum had secured her original interest in the land which was eventually transmuted into the stock and finally into the note now in suit. Plaintiff had not pleaded ratification and this theory of the case was injected into the trial by the court. In Zorn v. Brooks, 125 Tex. 614, 83 S.W.2d 949, 951 (1935), the Court reviewed the authorities in detail and came to this conclusion: “The authorities generally are in complete accord in declaring that a contract between a corporation and one or all of its officers and directors is not void per se, but that it may be avoided for unfairness or fraud. . . . This is the settled rule in Texas.” (citations omitted) A contract which is merely voidable, may be ratified and the right to annul may be lost. Missouri Pac. Ry. Co. v. Brazil, 72 Tex. 233, 10 S.W. 403, 406 (1888); Gaston v. Copeland, 335 S.W.2d 406, 409 (Tex.Civ.App., Amarillo, 1960, error ref. n.r.e.). Thus, the contractual agreement between Mrs. Mangum and Lakeland, whereby the corporation was to redeem her shares through the payment of money and the issuance of the note, was — at best — a voidable transaction at the option of the corporation. In order to prevail in her suit upon the contract, which includes the note in issue, it was Mrs. Mangum’s burden, as expressed in Tenison v. Patton, 95 Tex. 284, 67 S.W. 92, 95 (1902), to make “a full disclosure of all facts known to him about the subject, takes no advantage of his position, deals honestly and openly, and concludes a contract fair and beneficial to the company.” The latest expression of our Supreme Court on the subject is that of Justice Steakley in Popperman v. Rest Haven Cemetery, Inc., 162 Tex. 255, 345 S.W.2d 715, 717 (1961), from which this quotation is taken: “Closely related to the foregoing principles is the well-established rule that transactions between an officer or director and the corporation are subject to strict scrutiny; it was stated in Zorn v. Brooks, supra, ‘that a contract between a corporation and one or all of its officers and directors is not void per se, but that it may be avoided for unfairness or fraud.’ [125 Tex. 614, 83 S.W.2d 951] Previously, this court in Tenison v. Patton, supra [95 Tex. 284, 67 S.W. 92], discussed at some length the problem of contracts between officers and directors and the corporation itself, and recognized that such contracts are binding where the contracting director establishes the fairness of the transaction to the corporation. See also Texas Auto Co. v. Arbetter, Tex.Civ.App., 1 S.W.2d 334, er. dism.; and Felty v. National Oil Company of Texas, Tex.Civ.App., 155 S.W.2d 656.” (emphasis supplied) This holding was reinforced by the Court when it said: “We hold that the burden of establishing the fairness of the transaction to the corporation is upon petitioner” — Mrs. Mangum in our case. The reason for the rule, as stated in Paddock v. Siemoneit, 147 Tex. 571, 218 S.W.2d 428, 431 (1949), is that corporate directors occupy the position of a fiduciary toward the corporation. In the case which we now review, Mrs. Mangum neither pleaded nor proved that the transaction was fair and just to the corporation, nor did she make a full disclosure of all the facts known to her about the subject, as required in Tenison, supra. Yet, the majority permits her to recover on the note. Mrs. Mangum, relying upon the court-conceived theory of ratification, was successful in excluding evidence tendered by the defendant corporation which would have raised the issue of unfairness. Her belated reliance upon the theory of ratification likewise falls under the same theory and line of authorities. “Ratification is generally a matter of intent, with knowledge of the voidable nature of a prior act, to adopt such act as binding.” Williams v. Hooks, 333 S.W.2d 184, 189 (Tex.Civ.App., Beaumont, 1960, no writ). Just as Mrs. Mangum labored under the burden of proving fairness (under Popperman, supra), she had the burden of showing ratification was done with full knowledge of all of the pertinent facts. Leonard v. Hare, 161 Tex. 28, 336 S.W.2d 619, 621 (1960). She did not discharge .either burden by pleading or by proof. Considering the record as a whole, including the unsatisfactory condition of the pleadings and the proof on the critical issue of fairness and ratification, it is apparent that the case has not been fully developed in accordance with the applicable rules controlling this type of suit in the posture in which it was presented to the trial court. I would sustain points three and four; and, in the interest of justice, reverse the judgment below and remand the cause for further proceedings in accordance with the applicable procedural and substantive rules governing this cause, only some of which have been discussed herein. . Our judgment on the first appeal was not final at the time of the filing of the plea of res judicata and did not become final until several days after the completion of the trial of the second suit. See 34 Tex.Jur.2d, Judgments, § 472, pp. 521, 522 (1962), and Annotation, 9 A.L.R.2d 984, 994 (1950), for a discussion of the Texas cases on the subject. . The dissent of Justice Johnson in Griffin, supra, indicates that the controlling effect of Rule 97(a) was raised by the Supreme Court sua sponte. (496 S.W.2d at 539) . It appears from our record that the trial court treated the “motion to sever” as a motion in limine designed to suppress evidence heard upon the former trial upon issues therein determined by the jury. The action of a trial court in ruling upon a motion in limine is necessarily preliminary in nature and does not, in and of itself, reflect error. This is true whether the action is in granting the motion or in overruling it. In order for the trial court’s action to be tested upon appeal, it must be shown that evidence which was tendered was introduced or excluded (as the ease may be) over an appropriate objection timely interposed. The action of the court in so admitting or excluding the evidence will then be considered by the appellate court under the usual rules governing the admission or exclusion of evidence. If the action of the trial court is held to be error, the court will then determine whether such error amounted to reversible error. See generally: Bridges v. City of Richardson, 163 Tex. 292, 354 S.W.2d 366 (1962) ; Hartford Accident and Indemnity Co. v. Mc-Cardell, 369 S.W.2d 331, 335 (Tex.1963) ; State v. Cave, 430 S.W.2d 692, 694 (Tex. Civ.App., Austin, 1968, no writ) ; State v. Lock, 468 S.W.2d 560, 565 (Tex.Civ.App., 1971, Beaumont, error ref. n.r.e.).

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Barbara Lynn LEE, Appellant, v. Burt John LEE, Jr., Appellee. No. 7587. Court of Civil Appeals of Texas, Beaumont. May 16, 1974. Rehearing Denied June 6, 1974. Frank M. Adams, Beaumont, for appellant. Provost, Umphrey, Doyle & Mehaffy, Port Arthur, for appellee. KEITH, Justice. Plaintiff below appeals from a judgment which did not grant unto her all the relief she sought in her suit to recover past and future child support claimed to be payable under a property settlement agreement between the parties which had been incorporated into a divorce decree. Because the posture of the parties in the litigation has changed from time to time, we will refer to the plaintiff below as Barbara or the mother, while speaking of the defendant below as Burt or the father. During the summer of 1970, Burt filed suit for divorce in the Court of Domestic Relations of Jefferson County and Barbara filed a waiver of service of citation therein. Using Burt’s lawyer exclusively, the parties worked out a settlement of their community property rights, custody of the two children, and the amount of Burt’s support payments for the children. Paragraph 6 of the settlement agreement, which was approved and incorporated into the divorce decree by reference, read: “Petitioner [Burt] agrees to pay the sum of $650.00 per month child support for the support and maintenance of his two minor children until Allison Lynn Lee, attains the age of eighteen years of age, at which time the monthly child support payments shall be reduced to $325.00 such payment to continue until Burt John Lee, III, attains the age of eighteen years at which time the child support payments shall cease.” Barbara was awarded custody of both children and Burt made all of the payments as and when due until early in 1973 when the older child came to live with her father. It was this event which prompted Burt to file a motion in the Court of Domestic Relations seeking a reduction in the child support from $650 to $325 per month. Following the hearing on such application, the Court of Domestic Relations reduced the child support payments to $390 per month. The reduction order contained a paragraph reading: “It is ordered, adjudged and decreed that nothing contained herein shall affect the obligations assumed by Burt John Lee, Jr., in said property settlement agreement bearing date of August 28, 1970, approved by the court and made a part of the judgment of the court in said divorce decree, but the provisions of this decree shall relate only to the liabilities imposed upon the plaintiff, Burt John Lee, Jr. under and by virtue of the original decree dated June 3, 1947 [which should read September 8, 1970] and the provisions of Article 4639A, [4639a] Section 1, Vernon’s Annotated Civil Statutes, and which may be enforced by contempt proceedings.” After entry of this order modifying the payments, Barbara brought this suit in the 58th District Court of Jefferson County wherein she sought to recover the balance of the past due installments together with interest thereon, declared on an anticipatory breach of the contract, and sought to recover the full amount of the remaining sums payable in the future. Burt answered by a general denial and a special plea that the support paragraph of the settlement agreement was “the result of a mutual mistake and/or omission of the parties thereto, and said terms do not accurately reflect the intentions of the parties thereto as to the amount of child support that Defendant in this cause is to pay Plaintiff per month.” Over Barbara’s objections, Burt tendered evidence, from himself and his lawyer who handled the divorce action, that the true intention of the parties at the time of the making of the contract was that payments would be made by Burt to Barbara only so long as both children were residing with her; and, his counsel stated that he advised both parties that the matter of support of minor children would be subject to change by the court at all times. At the conclusion of the non-jury trial, judgment was entered in favor of Barbara for the sum of $650 and Burt was ordered to pay an additional sum of $65 per month, or a total of $455 per month until such time as the daughter reached the age of eighteen years. We had occasion recently to review the authorities governing support payments made by contract and those based upon the divorce court’s statutory authority under Art. 4639a, § 1, Vernon’s Ann.Civ.St, which was effective at all times material to this litigation. See Alford v. Alford, 487 S.W.2d 429 (Tex.Civ.App., Beaumont, 1972, error dism.). After discussing the authorities, we continued in language applicable to the case at bar: “The modified decree did not affect the obligations assumed by appellant [Burt] in the original settlement agreement. Mobley v. Mobley, supra [221 S. W.2d 565 (Tex.Civ.App., San Antonio, 1949, no writ)]. Appellee [Barbara] could enforce her rights under the settlement decree only in a separate suit brought upon the contract. Hyman v. Brady, supra [230 S.W.2d 345 (Tex.Civ. App., San Antonio, 1950, no writ)].” These cases just noted are dispositive of Barbara’s right to recover in the suit upon the contract which was embodied in the original divorce decree unless Burt’s plea of “mutual mistake and/or omission of the parties”, mentioned earlier, tendered a defense thereto. We recognize that Justice Walker in Hutchings v. Bates, supra fn. 2, held: “In a case like the present, however, whete the duty to make support payments arises from an agreement of the parties, their rights and obligations in that respect are governed largely by the rules relating to contracts. Hyman v. Brady, Tex.Civ.App., 230 S. W.2d 345 (no writ).” (406 S.W.2d at 420) Turning to Hyman v. Brady, cited by Justice Walker, we find that it was a companion case to Brady v. Hyman, 230 S.W.2d 342 (Tex.Civ.App., San Antonio, 1950, no writ), involving the same parties, the same decree, and entered upon the same date. Thus, Justice Walker’s approval of the second case necessarily approved Justice Norvell’s holdings in the first of the two cases. We take this series of rules from Brady v. Hyman as governing the rights of the parties in this case, omitting all citations: “In our opinion the 1946 judgment [the divorce decree in which the settlement agreement had been incorporated], insofar as it relates to the amount payable for child support, must be construed as a consent judgment. . “ ‘That part of the judgment which was based upon the agreement of the parties is governed by the laws relating to contracts, rather than laws relating to judgments. . . . “ ‘An agreed judgment is interpreted like a contract between the parties. “ ‘Consent judgment rendered pursuant to written agreement becomes a contract between the parties as well as an adjudication between them. . . . Consent judgments are, in effect, merely contracts acknowledged in open court and ordered to be recorded, but as such they bind the parties as fully as do other judgments. . . .’ “[T]he child support provisions of the judgment, insofar as they are based upon contract, and ‘in the absence of fraud, accident or mistake, should not be set aside or modified except by the consent of the parties.’ ” (230 S.W.2d at 344) The “mutual mistake and/or omission” pleaded by Burt was supported by testimony (a) of his lawyer in the divorce action having told the parties that “child support payments were subject to change as conditions change until the children got to be 18 years old”; and (b) his reliance thereon that the agreement as to child support was “[s]ubject to being changed, if conditions changed.” Yet, the next question and answer elicited from Burt this testimony: “Q. Now, Mr. Lee did you ever discuss the possibility with your wife that one of your children might come live with you? “A. No, sir, that never entered my mind.” Upon cross-examination, Barbara gave similar testimony: “Q. Did you and Mr. Lee discuss the possibility of what would happen in regard to the child support payments should you not keep custody of one or two of these children up until age 18? “A. No, sir.” Burt made no effort to prove fraud, as indeed he could not in the posture in which the question arose: his own lawyer made the statement upon which he relied. Cf. O’Meara v. O’Meara, 181 S.W.2d 891, 894 (Tex.Civ.App., San Antonio, 1944, error ref.); Boley v. Boley, supra fn. 4. If there was a mistake made by Burt’s lawyer, it was one of law. Insofar as Burt contended that there was a mutual mistake, it too was one of law and not of fact. But, a mutual mistake of law is not ground for rescission or cancellation of a contract. Harris v. Sanderson, 178 S.W.2d 315, 320 (Tex.Civ.App., Eastland, 1944, error ref. w. o. m.); Ussery v. Hollebeke, 391 S.W.2d 497, 501 (Tex.Civ.App., El Paso, 1965, error ref. n. r. e.). It follows from what has been said that we are of the opinion that Barbara was entitled to recover upon the contract embodied in the divorce decree and that Burt neither tendered nor proved a defense thereto. Cf. Akin v. Akin, 417 S.W.2d 882 (Tex.Civ.App., Austin, 1967, no writ)'. While we may find ourselves personally sympathetic to the plight in which Burt now finds himself, the contract between the parties is clear and unambiguous. It has been embodied in the solemn judgment of a court of record. Our Supreme Court has said in Pollard v. Steffens, 161 Tex. 594, 343 S.W.2d 234, 239 (1961), “[A] consent judgment has the same degree of finality and binding force as does one rendered by the court at the conclusion of an adversary proceeding.” Courts cannot undertake to make a new contract for the parties in disregard of the plain and unambiguous language used by the parties. Maryland Casualty Co. v. Hudgins, 97 Tex. 124, 76 S.W. 745, 747, 64 L.R.A. 349 (1903). Nor may we avoid hard consequences by relaxing the rules governing proceedings such as the one before us. Barbara was entitled to judgment, as a matter of law, upon the matured installments. When we turn to a consideration of Barbara’s right to recover unmatured payments under the doctrine of anticipatory breach, we find that the law is that expressed in Universal Life & Accident Ins. Co. v. Sanders, 129 Tex. 344, 102 S.W.2d 405, 406 (1937) : “[Wjhen a party who is obligated by contract to make monthly payments of money to another absolutely repudiates the obligation without just excuse, the obligee is 'entitled to maintain his action in damages at once for the entire breach, and is entitled in one suit to receive in damages the present value of all that he would have received if the contract had been performed, and he is not compelled to resort to repeated suits to recover the monthly payments.’ ” (emphasis supplied) See also, Pollack v. Pollack, 39 S.W.2d 853, 855 (Tex.Com.App., 1931, holdings approved), id. 46 S.W.2d 292; Continental Casualty Company v. Boerger, 389 S.W.2d 566, 568 (Tex.Civ.App., Waco, 1965, error dism.). Recognizing Barbara’s right to recover under the theory of anticipatory breach, it is simply a matter of arithmetical calculation to determine the gross amount of her recovery. But, Barbara is entitled to recover only the present value of the unma-tured future support payments. In some instances, i. e., damages recovered under the Federal Employers’ Liability Act (45 U.S.C.A. § 51 et seq.), the present value of the pecuniary loss must be calculated by the trier of the facts based upon the highest net rate that can be had on money safely invested. See Kansas City Southern Railway Company v. Lawson, 435 S.W.2d 582 (Tex.Civ.App., Beaumont, 1968, no writ), and cases therein cited. Justice Stephenson was there applying a federal statute, the construction of which was governed by the decisions of the United States Supreme Court. However, the general rule applicable to cases governed by state law is to be found in Missouri Pacific Railroad Company v. Kimbrell, 160 Tex. 542, 334 S.W.2d 283, 286 (1960) : The jurors are assumed to be acquainted with prevailing rates of interest and it is not necessary to present evidence of the earning power of money. At this point in time, with interest rates at historical levels and constantly changing, it is somewhat unrealistic to attribute to jurors, or to judges, knowledge of the earning power of money. However, taking our cue from the general provisions of the laws relating to interest, and specifically from Articles 5069-1.03 and 5069-1.05, V.A.C.S., we are of the opinion that the rate should be fixed at six percent. Cf. Home Indemnity Company v. Mosqueda, 473 S.W.2d 456, 459 (Tex.1971), construing Art. 8306a, V.A.C.S., the lump sum discount applicable to workmen’s compensation benefits. The judgment of the trial court is now reversed and judgment rendered whereby Barbara shall recover judgment against Burt for the full amount of each past due monthly installment provided by the contract, less all payments made thereon, together with interest at the rate of six percent per annum from the date when such payment became due and payable until the date of this judgment. It is further ordered that she have and recover judgment against said defendant for each unmatured payment due in the future with each such payment being discounted at the rate of six percent per annum from the date of our judgment until such payment would become due under the terms of the contract; that our judgment shall bear interest at the rate of six percent per annum from the date hereof until paid. All costs are adjudged against the defendant. Reversed and rendered. . Neither party relies upon the findings of fact and conclusions of law which were filed by the trial judge sua sponte; and, we, too, have difficulty in finding support thereof in the record which we have under review. . Mobley and Hyman were two of the cases cited with approval in Hutchings v. Bates, 406 S.W.2d 419, 420 (Tex.1966). . This particular rule so announced by Justice Norvell was approved in Hutchings v. Bates, supra. . Even if fraud were present, which is not the case, it would have been intrinsic in nature and not even grounds for setting aside the judgment in a direct attack. See Bell v. Bell, 434 S.W.2d 699, 701 (Tex.Civ.App., Beaumont, 1968, error ref. n. r. e.), and cases therein cited. See also, Boley v. Boley, 506 S.W.2d 934, 938 (Tex.Civ.App., Port Worth, 1974, no writ). . We are not here concerned with the question of whether Burt’s lawyer made a mistake in announcing the law applicable to support orders. The rule he alluded to in his testimony is the general rule: Support orders which are enforceable under the statute are subject to being modified as conditions change. We have discussed the exception to this general rule applicable to contracts for support of children which are embodied in divorce decrees. At best, the lawyer’s testimony supported only a mistake of law — not of fact. . The two children were born, respectively, on May 18, 1957 and December 26, 1960; and, there is no dispute as to the amount which Burt has paid nor the dates thereof. Nor is there any dispute as to the amount past due and payments cease as to each such child when it reaches the age of eighteen years.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

GENERAL TELEPHONE COMPANY OF the SOUTHWEST, Appellant, v. CITY OF GARLAND, Texas, et al., Appellees. No. 18321. Court of Civil Appeals of Texas, Dallas. April 25, 1974. Rehearing Denied May 23, 1974. Patrick E. Higginbotham, Coke & Coke, Dallas, for appellant. Earl Luna, Luna, Murto & Sibley, Dallas, for appellees. GUITTARD, Justice. In this telephone-rate case, our principal question is whether a city may reasonably require the company to furnish information concerning the separate value of its property devoted to serving customers within the city as distinguished from its property serving all its customers within the metropolitan area. We hold that such information may be required in view of the trial court’s finding, which we find to be supported by evidence, that the information could be furnished at reasonable cost. Plaintiff General Telephone Company of the Southwest serves Garland and fifteen other municipalities in the Dallas metropolitan area. Southwestern Bell Telephone Company serves Dallas and other municipalities in the area. The two companies provide a flat-rate, toll-free service, termed “Dallas Metro Service,” throughout the metropolitan area. The present controversy arises out of an application for a rate increase made by General to the Garland City Council. In support of this application General included in its rate base all its property used and useful in providing service to its subscribers in the metropolitan area, after excluding that portion allocated to long-distance service, and made no attempt to show separately that portion of its property used and useful for providing service to subscribers in Garland. The City requested information separated and allocated to the Garland local exchange. General advised the City that no further information would be furnished and requested the City to act on its application on the basis of the area-wide data. The City Council then adopted a resolution denying the rate increase. The resolution recited that the information furnished was insufficient to support the proposed rate increase and that General had failed to furnish the additional information requested. The resolution also provided that in the event General should file the information requested, additional public hearings would be held. The present suit was filed by General for an injunction to restrain the City from enforcing the existing rate schedule and from interfering with its promulgation and charging of fair and reasonable rates. The City responded by a plea in abatement alleging that General had not exhausted its administrative remedies in seeking the rate increase in that it had not furnished information which the City had requested. After a protracted hearing the trial court sustained the plea in abatement and dismissed the suit. The court recited in its findings of fact that General had offered evidence showing that it had a rate base of more than seventy-seven million dollars for the sixteen cities it served in the area but had made no effort to determine what portion of that rate base was devoted to furnishing service to subscribers in Garland as distinguished from properties used in furnishing service to subscribers in the fifteen other cities, and that General “could, at a reasonable cost, if it diligently attempted to do so, and should furnish to the City Council of the City of Garland the amount of the fair value of the property of the said General Telephone which is devoted to furnishing service to such city.” The court found further that such information was necessary for the City to exercise its authority to establish telephone rates. General appeals. The central problem in the case is that public utility services are most efficiently provided on an area-wide basis, but the only agencies of government authorized by Texas law to regulate their rates are the governing bodies of the separate municipalities, which have proliferated in metropolitan areas. Power to regulate rates of public utility companies enjoying franchises is conferred on cities by Tex.Rev.Civ. Stat.Ann. art. 1119, and art. 1175, § 12 (Vernon 1963), and is more particularly defined in Tex.Rev.Civ.Stat.Ann. art. 1124 (Vernon 1963), which provides that cities having the authority to regulate the rates of a corporation enjoying a franchise “shall, in determining, fixing and regulating such charges, fares or rates of compensation, base the same upon the fair value of the property of such . . . corporation devoted to furnishing service to such city, or the inhabitatnts thereof.” Although General does not concede that the “Dallas Metro Service” is local service subject to the City’s statutory power of regulation, it recognizes that the franchise under which it operates in Garland gives that City a contractual power to regulate rates charged Garland subscribers for the area-wide service to the same extent that the City has statutory power to regulate rates for local service. Cf. General Tel. Co. v. City of Littlefield, 498 S.W.2d 375 (Tex.Civ.App. — Amarillo 1973, writ ref’d n. r. e.). We reserve to last the question of whether local regulation under the above statutes should be based on area-wide data, and we begin with General’s second point of error, which asserts that the trial court “erred in sustaining the plea in abatement because Garland failed to sustain its burden of proving that the requests it made of General were practical and reasonable.” This point is overruled. The only authority cited for casting this burden on the City is Flowers v. Steelcraft Corp., 406 S.W.2d 199 (Tex.1966), a case not involving public utility rates, in which the defendant was held to have the burden to prove the allegations in its plea in abatement. That decision sheds little light on our present problem. We recognize that a defendant has the general burden to establish the facts supporting a plea in abatement, but our question is whether reasonableness of the request is a part of the prima facie case which the City must present in support of its plea. We hold that reasonableness was not essential to the City’s prima facie case, but rather that General had the burden to establish unreasonableness under the general principle that the action of a municipal governing body is presumed to be valid and the party attacking such action has the burden to show it to be arbitrary and unreasonable. Town of Ascarate v. Villalobos, 148 Tex. 254, 223 S.W.2d 945, 950 (1949) ; Bexar County v. City of San Antonio, 352 S.W.2d 905 (Tex.Civ.App, — San Antonio 1961, writ dism'd). That principle applies here with peculiar force, since General was obviously in a better position than the City to supply information concerning its business and property and other matters affecting reasonableness of the City’s request. The City proved that it had requested additional information as a basis for considering General’s application for a rate increase, that General had failed to furnish the additional information requested, and that the City Council had denied the increase because of such failure, but had offered to hold further hearings in the event such information was furnished. This evidence established prima facie that General had failed to exhaust its administrative remedy of presenting additional information to the City Council in support of its application for a rate increase. Southwestern Associated Tel. Co. v. City of Dalhart, 254 S. W.2d 819, 825 (Tex.Civ.App. — Amarillo 1952, writ ref’d n. r. e.). The burden then shifted to General to establish that the City’s request was arbitrary and unreasonable. The question of reasonableness of the City’s request is raised in other points of error. General’s third point asserts that the trial court erred in concluding as a matter of law that General failed to exhaust its administrative remedies in that it failed to provide the data requested by the City in support of its application. Whether failure to furnish the data was a failure to exhaust General’s administrative remedies depends on whether the City’s request for the additional data was reasonable. This question depends on the propriety of the trial court’s fact finding that General could have furnished such data at reasonable cost. The fourth point complains that there is no evidence to support this finding, and the fifth point complains that it was against the overwhelming weight and preponderance of the evidence. Our review of the record has revealed ample evidence to support the finding. General’s evidence tends to show that according to rate-making practices in the industry, properties devoted to local service are separated from other properties on a usage basis and that the ability to retrieve data necessary to measure the relative usage of the common equipment by subscribers within the respective municipal boundaries was lost when the “Metro Service” was inaugurated. According to General’s witnesses, it has no records from which such separated usage data can be supplied and it cannot furnish such data without employing substantially the same type of equipment as that used for establishing toll charges for long distance calls, and installation of such equipment would require an expenditure of fifty million dollars, an amount that would clearly be unreasonable if it served no purpose other than to provide information for rate regulation. General’s witnesses explained that calls routed from Garland through Southwestern Bell’s area were handled by Bell’s highly efficient “tandem switch,” which made retrieval of any information concerning destinations impossible, and consequently, there was no way to determine whether such calls were destined for Bell’s area or other exchanges in the municipalities served by General. These witnesses provided little information on whether a less accurate method of measuring or estimating usage would be available without equipment capable of tracing each call, and said only that they knew of no means to measure such uses with reasonable accuracy. They admitted that General’s traffic department had “scanners for usage” and other equipment which provided traffic data for other purposes, such as determining the need for additional trunk lines, but they did not comment on whether this equipment could produce information that would be helpful in estimating proportionate usage by Garland subscribers of the common equipment. The City’s experts did not agree that General had no practicable method of furnishing separate usage data and gave their opinion that such a separation was feasible and reasonably necessary for rate-making purposes, but they presented no specific procedure for obtaining such data. They said that data for rate regulation did not need to be as accurate as would be provided by equipment capable of tracing each individual call. One of the techniques they suggested for such an approximate allocation was sampling, although they could not specify how that technique would be employed in this case. They explained that any method of estimating separated usage involved expense and that more accurate data would involve greater expense, so that the question boiled down to whether the cost of regulation based on separated usage data was economically justified. In their opinion a less expensive but less accurate method of obtaining such data could be worked out that would be acceptable to the City, and they estimated that an allocation with ninety-five percent accuracy could he made by use of sampling techniques and available traffic data. They suggested that they would need to know what usage and traffic information was available to General and what it would cost to provide such data before they could determine the degree of accuracy of the information that the City could reasonably require Genera] to furnish, but that General had not furnished enough information for them to make that determination. In their opinion, such an approximate allocation would be a fairer basis for rate making than the value of all General’s property in the sixteen cities it served. They pointed out that the interchange agreement between General and Southwestern Bell required General to furnish an allocation of costs as a basis for monthly settlements between the two companies and thus indicated that techniques existed for gathering some sort of usage data without the more elaborate equipment discussed by General’s witnesses. Members of the Garland City Council testified that General’s President Beck told them in a meeting that General could work out with the City and its technical advisers a method of providing separated data within sixty to ninety days, but that Beck insisted that the rate increase be put into effect before such an effort was undertaken. Beck testified at the hearing of the plea in abatement that he had told the City’s representatives that there was no existing procedure available and that four to six months would be required to develop a procedure that General could live with, but that General would want the agreement of all the cities involved. This testimony also indicates that General could have furnished the data requested without equipment capable of tracing each individual call. Since we hold that General had the burden to show that the City’s request for information was unreasonable and arbitrary, but presented no evidence concerning any available usage or traffic information and relied altogether on its inability to trace and account for each call destined for a receiver outside Garland, the trial judge was justified in adopting the conclusion of the City’s experts that less accurate but useful information could be furnished at reasonable cost. Even if the burden rested on the City to show that its request was not unreasonable, we conclude that evidence sufficient to support the court’s finding is provided by the opinions of the City’s experts, based on their experience and general knowledge, that some sort of approximation of the separate usage and traffic attributable to Garland subscribers could be presented which would be fair for rate-making purposes both to General and to its subscribers in Garland. Inability of these experts to define exact procedures for obtaining such information did not leave their opinions completely without probative force. Consequently, General’s third, fourth, and fifth points are overruled. We turn now to General’s first point, which asserts that the court erred in finding that Garland had not been furnished data upon which the City Council may properly set rates for telephone service in Garland. Under this point General argues that no separation was required because the information furnished concerning all its properties and operating expenses within the Dallas metropolitan area was sufficient for the purpose of rate making by each of the cities it serves, including Garland. In support of this argument, General cites General Telephone Co. v. City of Wellington, 156 Tex. 238, 294 S.W.2d 385 (1956). That case holds that no separation was required as between values of property used in serving a regulating municipality and those used in serving the surrounding rural area, where all subscribers were served through a single exchange. The court said that the single-community flaf-rate system was proper, regardless of city lines, since toll charges on all calls outside the city would be unacceptable to subscribers both within and without the city, and that any financial “breakdown” on city lines would be theoretical and unnatural. The court observed that it was almost impossible to find a sound and practical basis for splitting up for rate-making purposes one naturally indivisible business enterprise into subunits following city lines. Recognizing that its opinion would have implications for extended flat-rate service covering neighboring municipalities, the court was careful to avoid such implications by expressly disavowing any holding that where two competing regulatory bodies divide a single community between them, any attempt at separation by geographical area was necessarily improper or unnecessary, however theoretical and complicated the process might be. The court pointed out that the case under consideration was far from such a case. We conclude that the implications of Wellington should not be extended to a case involving service within several regulating municipalities. Under Texas law no authority exists for regulating rates of telephone service in rural areas, but to charge different rates to customers within and without city lines in such a case as Wellington would raise questions of unreasonableness and discrimination. City of Texarkana v. Wiggins, 151 Tex. 100, 246 S.W.2d 622, 626 (1952). The situation is different where extended service is provided to several regulating municipalities. Each is properly concerned about the interests of its citizens and no problem exists concerning discrimination against subscribers in an unregulated area. The propriety of requiring separated usage data in this context is a matter of reasonableness in view of the regulatory powers of the different municipalities involved. One factor affecting reasonableness is the cost of providing the separated data, and another is the relative accuracy of data available at reasonable cost. These factors were apparently not raised or considered in Wellington, but they are of crucial importance here, and for the reasons already given we hold that they presented fact questions for the trial court. The Wellington opinion cites State ex rel. Clarkston Chamber of Commerce v. Department of Public Utilities, 34 Wash.2d 141, 208 P.2d 882 (1949) for its holding that even where the telephone exchange or operating unit is geographically divided between two states, each with its own regulatory body, the community-wide operation on both sides of the state line was a proper unit for rate-making. That case did not hold, however, that the community-wide operation was the only proper unit for rate-regulatory purposes, regardless of the regulatory bodies involved. We do not hold here that Garland could not legally have based its rate ordinance on the area-wide data furnished by General rather than on separated data concerning usage of the common property by Garland subscribers. We hold only that Garland’s choice to regulate the rates charged to telephone subscribers within its borders on the basis of the fair value of properties devoted to furnishing that service, separated on a usage basis from the properties devoted to serving General’s other subscribers, was a choice within the discretion of the Garland City Council in absence of proof that such a choice was unreasonable and arbitrary. We recognize the force of General’s argument that to furnish separated data useful for no purpose other than regulation would be uneconomic, and that the principle of equal rates for equal service would more likely be realized within the metropolitan area if the same area-wide figures were used for rate regulation by each of the sixteen municipalities where General operates. These problems, however, are inherent in the Texas statutory scheme of rate regulation by local authorities as applied in metropolitan areas. Under that scheme, if the subscribers in one municipality are less habituated to telephone communication than subscribers in other municipalities in the area, they should be charged a relatively smaller portion of the common expense of providing the service. Whether the cost of the additional data necessary for city-by-city regulation is economically justified is a matter of reasonableness for determination by the respective governing bodies. The additional cost would be an expense to be included in the rates. Driscoll v. Edison Light & Power Co., 307 U.S. 104, 120, 59 S.Ct. 715, 83 L.Ed. 1134 (1939); West Ohio Gas Co. v. Public Utilities Comm’n, 294 U.S. 63, 73, 55 S.Ct. 316, 79 L.Ed. 761 (1935). Moreover, uniformity of rates in the metropolitan area would not necessarily be achieved, even if all sixteen of the municipalities sprved by General should decide to accept area-wide data as the basis for their regulation of rates, since each governing body would have authority to make its own evaluation of that data and also to employ experts to gather additional information. Regulation of public utility rates by each of several municipalities in the same metropolitan area may well result in increased costs and less uniformity than regulation by a statewide agency, but the remedy for these problems lies with the legislature rather than with the courts. Consequently, General’s first point is also overruled. Affirmed.

sw2d_509/html/0934-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

CACTUS FEEDERS, INC., Appellant, v. Marvin D. WITTLER, Appellee. No. 8434. Court of Civil Appeals of Texas, Amarillo. April 22, 1974. Lovell, Lyle, Cobb & Renfer, Michael P. Metcalf, Dumas, for appellant. Sheehan & Dubuque, Inc., Michael D. Meredith, Dumas, for appellee. ELLIS, Chief Justice. In this appeal of a wage claim case arising out of an employee’s discharge, the employer-appellant challenges the trial court’s judgment allowing the employee’s recovery of certain wages and a bonus under an oral employment contract. Reversed and rendered. Marvin D. Wittier, plaintiff-appellee, herein sometimes called “Wittier,” was an employee of Cactus Feeders, Inc., defendant-appellant, herein sometimes called “Cactus,” a local feedyard which was in the business of feeding cattle and preparing them for market. Wittier, at the time of his discharge, on January 18, 1972, was a mill foreman. Cactus had a policy of paying its employees a bonus equal to the employee’s average monthly salary for the last year on the anniversary date of each year of satisfactory employment by the employee. The record indicates that for several months prior to his discharge, Wittier had become dissatisfied with his employment because of his failure to receive certain contemplated increases in salary. There had been various discussions between Wittier and members of management concerning salary matters. He alleged that on January 15, 1972, he gave notice that he would resign his employment with Cactus on February 15, 1972. On the morning of January 18, 1972, Wittier made a telephone call to Gale Turner, the manager of Cactus Feeders. According to Turner, Wittier advised him during the telephone conversation that he had heard that he (Wittier) was about to be replaced by another man, and that if he got “canned” or if he left Cactus’ employment, there would be three or four other employees quit or leave at the same time. Later, during that same morning, Wittier was discharged from the employment of Cactus Feeders by W. K. Burgess, the appellant’s feedlot manager. A paycheck was given to Wittier which covered approximately three days’ pay, the period of time from the last pay period of Wittier through January 18, 1972. Wittier claims that he was entitled to be paid for the balance of one month’s salary and for his yearly bonus. In this case, the anniversary date with respect to a possible bonus was February 9, 1972, while Wittler’s termination was on January 18, 1972, approximately three weeks prior to such anniversary date. There were no written contractual agreements between Cactus and Wittier. Wittier instituted suit for the balance of one month’s pay and for the yearly bonus. He claims that his employment was wrongfully and unjustly terminated, thus depriving him of the right to work and the balance of his salary for 27 days, until February 15, 1972, in accordance with the notice he had given to Cactus, and a bonus of $800 to which he claims he was entitled on February 9, 1972. Cactus claims there were no formal contractual arrangements between Cactus and Wittier; that Wittier was hired strictly as an employee at will; and that either party was free to terminate the employment at any time for any reason. The case was tried before a jury. Prior to the submission of the cause on special issues, the court overruled appellant’s motion for instructed verdict. After the verdict was received from the jury, the court also overruled the appellant’s motion for judgment non obstante veredicto. In substance, the grounds for the appellant’s motion for instructed verdict and for judgment non obstante veredicto were that (1) under the evidence, the plaintiff Wittier was an employee at will, without written contractual obligation on either party, and that plaintiff’s employment could be terminated with or without cause by either party at any time, and thus, as a matter of law, plaintiff is not entitled to recover on his claim for compensation for the additional 27 days following the date of termination; and (2) under the evidence, the bonus sought by the plaintiff was not earned until a full year period of satisfactory employment had been completed by the employee, and that the plaintiff who had not so served or remained in defendant’s employment for such entire year was not entitled to any bonus as a matter of law. The issues submitted to the jury and the respective answers are: “SPECIAL ISSUE NO. 1 “Do you find from a preponderance of the evidence, the Plaintiff’s employment was terminated for just cause by the Defendant’s manager W. K. Burgess, on January 18, 1973 ? “Answer: ‘It was not.’ “If you have answered the above Special Issue No. 1 ‘It was not’ then answer the following Special Issues, otherwise you need not answer any of the following Special Issues. “SPECIAL ISSUE NO. 2 “Do you find from a preponderance of the evidence the payment of a bonus to employees by the Defendant, Cactus Feeders, Inc., was a discretionary matter, resting with the feedlot manager, W. K. Burgess? “Answer: ‘It was.’ “SPECIAL ISSUE NO. 3 “Do you find from a preponderance of the evidence that the Plaintiff, Marvin D. Wittier was required to serve one complete year of satisfactory service before he could receive a bonus, (sic) “Answer: ‘It was required.’ “SPECIAL ISSUE NO. 4 “Do you find from a preponderance of the evidence an employee could earn a bonus by serving less than one complete year with the Defendant, Cactus Feeders, Inc. (sic) “Answer: ‘It could be earned.’ “SPECIAL ISSUE NO. 5 “Do you find from a preponderance of the evidence that Plaintiff was entitled to a bonus from Defendant ? “Answer: ‘We do.’ “SPECIAL ISSUE NO. 6 “Do you find from a preponderance of the evidence the Plaintiff is due wages, if any, for an additional 27 days after termination of his employment ? “Answer: ‘He is.’ ” The court entered judgment for Wittier on the jury’s verdict on the basis of a stipulation by the parties as to the respective amounts involved regarding the wages and bonus in question. From this judgment Cactus has brought this appeal on five points of error. Basically, the contested matters are whether Wittier is entitled to recover on his claims for (1) wages for an additional 27 days following his discharge, and (2) a bonus equal to one month’s pay as additional compensation. In its first point of error, appellant asserts that the trial court erred in failing to grant appellant’s motion for instructed verdict or its motion for judgment non ob-stante veredicto as related to the wage claim of appellee for 27 days of compensation after appellee’s discharge. Appellant urges that the evidence establishes the very general and informal nature of the employment agreement; that no definite term of employment was fixed by the oral employment contract and that either party could terminate the employment relationship at will with or without cause. Wittier was paid through January 18, 1972, the date of termination, and appellant insists that no further compensation was due to him as a matter of law. It has been held that in the absence of contractual limitations, the employer has the authority to discharge an employee at will, and with or without cause. Scruggs v. George A. Hormel & Company, 464 S.W.2d 730 (Tex.Civ.App. — Dallas 1971, writ ref’d n. r. e. ). Horn v. Builders Supply Company of Longview, 401 S.W.2d 143 (Tex.Civ.App. — Tyler 1966, writ ref’d n. r. e. ). Also, see 38 Tex.Jur.2d Master and Servant § 12. The basic rule was stated by the Supreme Court in the early case of E. L. & R. R. R. Co. v. Scott, 72 Tex. 70, 75, 10 S.W. 99, 102 (1888) as follows: “It is very generally, if not uniformly, held, when the term of service is left to the discretion of either party, or the term left indefinite, or determinable by either party, that either may put an end to it at will, and so without cause.” The appellee insists that, although the contract in question was verbal and employment granted at will, the contract was based upon satisfactory employment, and thus the employer could not discharge an employee while he was performing satisfactorily without just cause. In support of such contention, the appellee has cited the cases of Porter v. United Motels, Inc., 315 S.W.2d 340 (Tex.Civ.App. — Waco 1958, no writ) and Hardison v. A. H. Belo Corp., 247 S.W.2d 167 (Tex.Civ.App.— Dallas 1952, no writ), holding that in the event there was an agreement whereby the employee would be employed for so long as he satisfactorily performed the duties for which he was hired, the employer may not discharge the employee without showing good faith dissatisfaction. The verbal contract of employment between Cactus and Wittier did not specify a definite term of employment. Wittier admitted that he was in no way restricted from leaving appellant’s employment or that Cactus was in any way restricted from terminating the employment relationship. Warren K. Burgess, appellant’s feedlot manager, testified that there were no contractual restrictions between Cactus and Wittier. Burgess testified that “. he (Wittier) was hired as we hire routinely all our employees, he agreed to come to work and we agreed to hire him.” We note that the employment contracts involved in both the Porter and Hardison cases cited by the appellee contained specific agreements to the effect that the employee would be employed for so long as he satisfactorily performed his duties. In the instant case, we find no contractual limitation or qualification which would limit appellant’s right to discharge Wittier at will, with or without cause. It is therefore our opinion that the rules set out in the Porter and Hardison cases are not controlling here. In the instant case, the record discloses no evidence of any provision in the employment contract between Cactus and Wittier for a definite period of employment or which would limit appellant’s right to discharge Wittier at will without liability for unearned or future wages. See Horn v. Builders Supply Company of Long-view, supra, and authorities cited therein. We hold, therefore, that there was no evidence to sustain the submission of the issue concerning the appellee’s entitlement to his claim for wages for the 27 day period after his employment was terminated, and that the court erred in failing to grant appellant’s motion for instructed verdict or its motion for judgment non obstante vere-dicto as it pertained to such wage claim for the 27 day period. Schad v. Williams, 398 S.W.2d 603 (Tex.Civ.App. — Dallas 1965, writ ref’d n. r. e.) ; Rule 301, Texas Rules of Civil Procedure. Appellant’s first point of error is sustained. In appellant’s second point of error, it contends that the trial court erred in failing to grant appellant’s motion for instructed verdict or judgment non obstante veredicto as related to the bonus claim of appellee for compensation after appellee’s discharge. The appellant insists that the evidence and jury findings establish that Wittier was not entitled to the bonus in question as a matter of law. To support such contention appellant relies upon the evidence and the jury findings in answer to special issues numbers two and three that the payment of the bonus was discretionary with the feedlot manager and that Wittier was required to serve one complete year of satisfactory service in appellant’s employment before he was entitled to receive such bonus. In this connection appellant asserts that it was within the feedlot manager’s personal discretion whether or not to pay a bonus and, if, in the opinion of the manager, an employee’s service was not satisfactory, the bonus need not be paid. Appellant contends that in this case, the manager determined that, in his opinion, Wittler’s service became unsatisfactory and discharged him prior to the one year’s service required to receive the bonus; thus Wittier was ineligible to receive the bonus. The evidence discloses that the bonus in question, while it had been paid to all employees who had remained in appellant’s employment for the required twelve months, was paid at the discretion of the feedlot manager. Wittier testified that he knew that he had to remain in appellant’s employment for the full twelve month period before he was entitled to receive the bonus. Burgess, the feedlot manager, testified that the bonus was established as an incentive to keep the employees on a year-to-year basis, provided they were good and loyal workmen. He further stated that the bonus was not earned, but was a gift to employees “in gratitude to services well rendered.” The payment of the bonus was apparently not related to profits. Burgess further testified that when the feeding operation was unprofitable, appellant nevertheless paid the bonus to the employees who had done a “good job” and stayed a full year, but that payment of the bonus was at Burgess’ personal discretion and Cactus was not obligated to pay the bonus. Harold Doug Florence, Vice President of Stratford of Texas and General Manager of the Feedyard Division of the Cactus organization, testifed there was no guarantee of payment of a bonus to any employee, and the payment of such a bonus was discretionary with the individual feedyard management. The appellee contends that, even though the bonus was discretionary, the equities of the situation would require that the employer should not be allowed to profit by its action of termination without just cause. As previously noted, in the light of the recognized authorities, the relationship between Cactus and Wittier was of the type that may be terminated at will, with or without just cause. The bonus was paid only at the completion of one full year of satisfactory service and was in the nature of a gratuity granted at the sole discretion of the manager. The sole discretion was vested with the employer to make the determination as to the matter of satisfactory service. There is no showing that an employee had earned or could earn a bonus by serving less than the complete year. From a review of the record, we have determined that the evidence establishes that the matter of granting a bonus was discretionary with the feedlot manager and that the employee was required to complete the full year’s satisfactory service to be entitled to a bonus. In the opinion of the feedlot manager, Wittler’s services had become unsatisfactory, and he was discharged prior to the anniversary of the full year of satisfactory service. It is, therefore, our opinion that in this case, it has been established as a matter of law that the appellant is not obligated to pay the claim for the bonus in question. Appellant’s second point of error is sustained. The remaining numbered points of error are that (3) the answers to special issues nos. two and three establish as a matter of law that appellee was not entitled to a bonus; (4) the court erred in submitting special issue no. five as a double submission of the bonus question; and (5) there was no evidence to support the jury’s special issue no. four answer, which the trial court erroneously failed to disregard. Suffice it to state that the evidence heretofore reviewed dictates that these points of error should be, and are, sustained, and further discussion would be superfluous. For the reasons above stated, the judgment of the trial court is reversed and judgment rendered that the appellee take nothing by his suit.

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HARTFORD ACCIDENT & INDEMNITY CO., Appellant, v. Karen Sue Richardson CROWLEY, Appellee. No. 5305. Court of Civil Appeals of Texas, Waco. April 25, 1974. Rehearing Denied May 30, 1974. Garrett, Settle & Callaway, Fort Worth, for appellant. Daniel J. Smith, Grand Prairie, for ap-pellee. OPINION McDONALD, Chief Justice. This is a Workman’s Compensation case in whch appellee Karen Sue Richardson Crowley, married daughter of a deceased workman, filed claim for one-half of the death benefits. Appellant Insurance Company had previously paid the full death - benefits to the widow of the deceased workman (who was stepmother of appel-lee). Trial was to a jury which found: 1) At the time of the injury of Billy H. Richardson, Karen Sue Richardson Crowley was dependent for support, in whole or in part, on Billy H. Richardson for any contributions, services, or other things of value she was receiving from him. 2) Karen Sue Richardson Crowley did not inform Martha Ann Richardson that Karen Sue Richardson Crowley was making no claim for benefits under the Workman’s Compensation Act for the death of Billy H. Richardson. 3) Karen Sue Richardson Crowley did not know prior to the payment of the claim of Martha Ann Richardson by Hartford Accident & Indemnity Company, that Martha Ann Richardson was claiming all death benefits due under the Workmen’s Compensation Act for the death of Billy H. Richardson. The trial court entered judgment finding that Billy H. Richardson was injured in the course and scope of his employment; that appellee was dependent for support, in whole or in part on deceased, and awarded appellee ½ the Workman’s Compensation benefits found to be due. Appellant Insurance Company has appealed on IS points presenting 5 basic contentions. Appellant’s 1st contention is the District Court lacked jurisdiction to hear the case because the Industrial Accident Board had approved a settlement of claim for death benefits of the deceased workman, and such order had not been appealed from or set aside. The Industrial Accident Board approved settlement of claim for death benefits of the deceased workman made by deceased widow (stepmother of appellee). But ap-pellee was not a party to such action, and did not have intrinsic knowledge nor carry on negotiations with appellant prior to appellant paying her stepmother, a third party. Appellee did make timely application for death benefits as provided by the Workman’s Compensation Act and timely perfected her appeal therefrom. In such situation the District Court had jurisdiction. National Loan & Investment Co. v. Pelphrey & Co., Tex.Civ.App., 39 S.W.2d 926, NWH; Gentry v. Travelers Ins. Co., Tex.Civ.App., 459 S.W.2d 709, NRE; Home Indemnity Co. v. Edwards, Tex.Civ.App., 488 S.W.2d 561, NRE. Appellant’s 2nd contention is that Issue 1 finding appellee dependent on deceased at the time of injury of deceased cannot support the judgment. Appellant asserts dependency status at the time of death is required by Article 8306, Sec. 8A Vernon’s Ann.Tex.Civ.St. The deceased workman was injured on January 23, 1970, and he died from his injuries on February 13, 1970. The evidence shows and the jury found that appellee was dependent for support in whole or in part on deceased at the time of his injury. Appellee had moved into deceased’s home in October 1969, and resided there until after deceased died. Deceased provided her with a place to stay, food and maternity clothes among other things. There was no material change of condition from the date of deceased’s injury until the time of his death. Appellant’s 3rd contention is that the jury’s answer to Issue 1 is against the great weight and preponderance of the evidence. There is evidence that deceased was contributing to the support of appellee, and that she was dependent upon him at the time of his injury. Deceased provided rent, food, clothing, automobile, gasoline, oil and maternity clothes for appellee. She was physically living in deceased’s home and eating at his table. The jury’s finding is supported by ample evidence. Appellant’s 4th contention is that there is no-evidence to support the jury’s answers to Issues 2 and 3, and/or such answers are against the great weight and preponderance of the evidence. Issue 2 found appellee did not inform her stepmother she was making no claim to death benefits for the death of her father; and Issue 3 found appellee did not know prior to payment of the stepmother’s claim that the stepmother was claiming all of the death benefits. There is evidence appellee did not know what the stepmother was claiming, and never knew she received the money. Appellee never made any statement to appellant that would constitute a waiver of her rights. Appellant’s 5th contention is that appellee, an adult married daughter of deceased, could not he dependent on her father as a matter of law. An adult dependent child is entitled to death benefits under the compensation act. Turner v. Travelers Ins. Co., Tex.Civ. App., 401 S.W.2d 618, NRE; Turner v. Travelers Ins. Co., Tex., 406 S.W.2d 897. All appellant’s points and contentions are overruled. Affirmed.

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FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF LUBBOCK, Texas, et al., Appellants, v. W. Sale LEWIS, Savings and Loan Commissioner of Texas, et al., Appellees. No. 12117. Court of Civil Appeals of Texas, Austin. May 15, 1974. Rehearing Denied June 5, 1974. James A. Walters, Walters & Associates, Lubbock, for appellants. John L. Hill, Atty. Gen., John H. Banks, Asst. Atty. Gen., Austin, Dudley D. McCalla, Heath, Davis & McCalla, Austin, for appellees. SHANNON, Justice. Equitable Savings Association of Fort Worth, Texas, filed an application with the Savings and Loan Commissioner .for a branch office to be located in the vicinity of 50th Street and University Avenue in Lubbock. Three area savings and loan associations filed written protests in opposition to the branch application. After hearing, the Commissioner granted the application. Appellants, Briercroft Savings and Loan Association of Lubbock and First Federal Savings and Loan Association of Lubbock, filed suit in the district court of Travis County to set aside the order of the Commissioner. By its judgment the trial court sustained the order of the Commissioner. We will affirm the judgment of the trial court. In the order granting the branch application, the Commissioner set out the “underlying facts” supporting his findings. The pertinent portions of that order are set forth in the footnote. By several points of error appellants claim that the Commissioner’s findings of public need for the branch and of no undue harm to other associations in the vicinity are not supported by substantial evidence. At the Commissioner’s hearing, Equi-table Savings Association presented two witnesses in support of its branch application while the appellants produced six who testified in opposition. Equitable’s witnesses were H. Earl Hall, Jr., its president, and George W. Berry, its economic expert. Equitable’s witnesses testified to facts concerning the economic condition in Lubbock. In this connection, reference is made to that part of the Commissioner’s order in the footnote which sets out much of Equitable’s evidence. No purpose would be served by restating that proof in this opinion. Appellants' witnesses were Laura Louise Lucksinger, a professor of Marketing at Texas Tech University; Harold Chapman, a realtor; Stanley Allen Self, a professor in the business school at Texas Christian University; Lester Sartorius, a professor in the business school at Georgia State University; Jerome M. Gutheinz, an employee of Briercroft; and Claude Riley Meadows, president of Briercroft. The testimony of appellants’ witnesses tended to show that there was no public need for the proposed branch, and that its operation would unduly harm their functioning. For example, Meadows testified that the competition in Lubbock is “very excessive and very intense” and that the existing associations experience difficulty in “holding their own.” Despite Meadows’ augury of imminent evils, his association has “held its own,” and, in addition, has experienced a healthy growth since its inception. Its savings increased from $2,-222,609 in 1963 to $25,967,081 in 1971. From the end of 1971 through June of 1972 its savings deposits increased by $5,430,640. Appellants also stress that Lubbock Savings and Loan Association has experienced a decrease in the undivided profits account. This was so even though the savings accounts of that association had increased from $15,700,753 in 1961 to $31,149,252 by June of 1972. It is of some moment, we think, that Lubbock Savings and Loan Association did not regard the possibility of harm to it by the establishment of the branch to be sufficiently grave so as to warrant an appearance in protest of the application. Appellant First Federal’s position that the Lubbock area has reached a “saturation” point with respect to savings institutions is somewhat less convincing in view of the fact that it filed for a branch office on 50th Street about two miles from Equitable’s proposed location about a month after it learned of Equitable’s branch application. In its application for its branch, First Federal stated, “For the past six years there has been a steadily increasing demand for single family and multi-family mortgages in Lubbock.” As often written, the findings of the Savings and Loan Commissioner may not be arbitrary or capricious, but instead must have support in substantial evidence. Gerst v. Cain, 388 S.W.2d 168 (Tex.1965). The Commissioner’s order is presumed to be valid and reasonably supported by substantial evidence, and the burden is appellants to show that the order was not supported by facts existing at the time of the entry of the order. Isbell v. Brown, 196 S.W.2d 691 (Tex.Civ.App.1946, writ ref’d). From a review of the record as a whole, we are of the opinion that the judgment of the trial court is correct, and that the order of the Commissioner is supported by substantial evidence. Appellants also insist by an appropriate point of error that the judgment of the court and the order of the Commissioner should be reversed because the hearing officer permitted appellees’ expert witness to testify from hearsay sources. During appellees’ direct examination of George W. Berry, its economist, appellants’ counsel objected to Berry’s testimony referring to a compilation of figures in his economic report. That compilation concerned bank debits for the City of Lubbock from the years 1964 through 1971, and was obtained from the Texas Business Review, a publication of the Bureau of Business Research at the University of Texas. Appellants claimed the right to require appellees to present the “original source document” for examination by authority of Lewis v. Southmore Savings Association, 480 S.W.2d 180 (Tex.1972). The hearing officer permitted Berry to testify concerning figures in the Texas Business Review provided that should appellants desire to examine the pertinent issues of that publication, appellees would be required to produce them. The hearing concluded without a demand from appellants upon appellee to examine the pertinent issues of the Texas Business Review. The Texas Business Review is neither secret nor private, but instead is available to the general public upon a subscription basis. As such, we are doubtful that Lewis v. Southmore, supra, required appellees to present the pertinent issues of that publication for appellants’ examination. If, however, the hearing officer erred in admitting the evidence, we are convinced that the error was not such a denial of the rights of appellants as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. The judgment is affirmed. Affirmed. . “The Commissioner further finds there is a public need for the proposed branch office, that the volume of business in the community in which the proposed branch office will conduct its business is such as to indicate a profitable operation to the applying association within a reasonable period of time, and that the proposed operation of the branch office applied for will not unduly harm any other association operating in the vicinity of the proposed location. In support of these findings, the Commissioner states and finds the following underlying facts: Lubbock and Lubbock County have experienced substantial growth in recent years and the evidence indicates that such growth is continuing. The population of Lubbock increased from 71,390 in 1950 to 128,691 in 1960 and to 149,101 in 1970. The population of Lubbock County increased from 101,048 in 1950 to 156,271 in 1960 and to 179,295 in 1970. Estimates of population for the City of Lubbock and Lubbock County, as presented by the protesting assoeia-tions, approximated 153,464 and 184,283, respectively, as of June of 1972. The branch office hereby approved would be located in one of the higher income areas of Lubbock, near the intersection of 50th Street and University Avenue. 50th Street and University Avenue are major traffic arteries in Lubbock. 50th Street has experienced substantial commercial development, as shown by the branch application filed by First Federal Savings and Loan Association of Lubbock, for a branch office to be located in the southwest portion of Lubbock. The evidence shows without dispute that the trend of development in Lubbock is toward the southwest and the branch office here approved would be located in such portion of town and thus be accessible to such development. In addition to commercial development in the area, the evidence álso shows that the majority of the residential construc- • tion in Lubbock in recent years has been to the west, south and southwest parts of town, and that current trends indicate that an estimated 75% of new residential subdivisions are located to the southwest of the downtown area of Lubbock. The area of the proposed location also was shown to be accessible from other portions of the City of Lubbock although it obviously will serve the closely surrounding area to a greater degree. The greater community to be served by the branch office will approximate Lubbock County. Many economic indicators of Lubbock and Lubbock County have shown good growth in recent years. The population increases have been noted above. The population per savings and loan facility in Lubbock has been declining in recent years as management of the local associations have acted to meet the needs of the savings and borrowing public for additional facilities. In addition, new banks have been chartered in Lubbock in recent years. Although protestants of the branch applied for made reference to ‘water problems’ stated to exist in recent years, the evidence shows increasing economic growth and addition of new financial institutions and facilities in the Lubbock area during the past ten years. Time deposits of Lubbock banks have increased from $67.5 million at the end of 1961 to $264.8 million at the end of 1971. Time deposits of individuals in six Lubbock banks increased from $104,892,000 in 1967 to $190,906,000 in 1971. Demand deposits of individuals in the same banks for the same period of time increased from $125,038,000 to $156,969,000. Time and savings deposits of individuals, partnerships and corporations in Lubbock County banks increased from $40,906,000 in 1960 to $224,-096,000 in 1972. Savings of Lubbock savings and loan associations increased from $79,638,000 in 1965 to $140,788,000 in 1971. Savings of Briercroft Savings and Loan Association increased from $2,222,609 in 1963 to $25,967,081 in 1971. From the end of 1971 through June of 1972, savings deposits at Briercroft increased by $5,430,640. Savings of the other protesting association which appeared at the hearing, First Federal Savings and Loan Association of Lubbock, increased by $5,900,640 at the end of 1971 through June of 1972, from $65,176,231 to $71,076,871. The savings of Lubbock Savings and Loan Association increased from $15,700,753 in 1961 to $28,042,066 in 1971 to $31,149,252 in June of 1972. The savings of State Savings and Loan Association of Lubbock increased from $3,451,650 in 1961 to $21,602,646 in 1971, to $24,661,706 in June of 1972. These increases in savings deposits and bank deposits have resulted from increased employment and incomes in the Lubbock area, and also from changing economic conditions. Total employment in Lubbock County increased from 63,295 in 1964 to 75,620 in 1972; during these years, non-agricultural employment increased from 57,295 to 69,630. The economy of Lubbock County is influenced by agriculture and the fine educational institution of Texas Tech University, and while the area obviously suffered from the tornado which occurred in 1970, that the economy has recovered is shown by the savings and lending figures cited above and hereafter. The growth figures recited above compels a finding that the economy of the Lubbock area is strong. The evidence in this record also shows strong loan demand in Lubbock and Lubbock County. The branch application of First Federal states: ‘For the past six years, there has been a steadily increasing demand for single family and multifamily mortgages in Lubbock.’ Increasing loan demand in Lubbock County is shown by the deeds of trust filed by applicant and the Lubbock County associations during 1970, 1971 and the first six months of 1972. These records show that deeds of trust filed by such associations totalled $16,081,000 in 1970, $41,167,000 in 1971, and $35,793,000 in the first six months of 1972. Equitable Savings and Loan Association has been active in Lubbock County since 1930 and has loaned approximately $34,-000,000 in Lubbock in the past ten years. At the time of hearing Equitable Savings and Loan had approximately $23,000,000 in outstanding loan balances in the Lubbock area and approximately $138,000 in savings accounts. The budget projections presented by applicant are conservative and attainable, especially in light of applicant’s past lending activities in the area, and in light of protestants’ evidence indicating that a sizeable percentage of householders interviewed in the immediate vicinity of the proposed location indicated there was a need for a savings and loan branch office at 50th and University, and that a large number of such householders stated they would use a savings and loan office so located. This evidence, the growth of the existing associations noted above, and the state of the area economy preclude a finding that any existing association would be unduly harmed by operation of the branch office applied for.”

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GENERAL MOTORS CORPORATION, Appellant, v. James E. FRANKS et al., Appellees. No. 7560. Court of Civil Appeals of Texas, Beaumont. March 28, 1974. Rehearing Denied April 18, 1974. Daniel A. Hyde, Houston, for appellant. Waldman & Smallwood, Orgain, Bell & Tucker, Beaumont, for appellees. STEPHENSON, Justice. This is an appeal from an order of the trial court’s overruling pleas of privilege filed by General Motors Corporation (G. M.C.). Findings of fact and conclusions of law were filed by the trial court. The parties will be designated by name. James E. Franks filed this suit in Orange County naming Petro Chemical Transport (P.C.T.) as defendant. P.C.T. filed no plea of privilege. By amended petition G.M.C. was made a party defendant, and the first plea of privilege was filed. P.C.T. then filed a cross-action against G. M.C., and the second plea of privilege was filed. Franks relied upon Sections 9a, 27, and 29a of Article 1995, Vernon’s Ann. Civ.St., to maintain venue in Orange County. P.C.T. relied upon Sections 23 and 27 in its controverting plea. Frank’s petition alleges a cause of action for damages for personal injurie”s arising out of an accident which occurred on I.H. 10 in Orange County. The automobile he was driving struck a tire and wheel which came off of a truck operated by P.C.T. Franks’ cause of action against P.C.T. was based upon negligence and, against G.M.C. was based upon products liability. P.C.T.’s cross-action against G.M.C. was for contribution and indemnity. The findings by the trial court include the following: That the left front wheel came off of a 1972 G.M.C. truck driven by P.C.T.’s employee. That plaintiff's automobile struck the wheel lying in the highway. That two of the five lugs on the left front wheel had broken off. That prior to the accident that wheel had not been removed by maintenance personnel, and no maintenance work had been performed on it. That such truck was no more than four or five months old at the time of the accident. That Franks had raised evidence of a latent defect or defective design of such wheel, which manifested itself in Orange County. That there is evidence of overtorquing or undertorqu-ing by G.M.C. The trial court’s conclusions of law included: That Franks established a prima facie case of negligence in Orange County, and venue lies in Orange County under Section 9a. That Franks showed that the cause of action or a part thereof arose in Orange County, and venue lies in Orange County under Sections 23 and 27. That G.M.C. is a necessary party and the venue of the case against P.C.T. lies in Orange County, that under Section 29a venue against G.M.C. also lies in Orange County. G.M.C. has points of error that the trial court erred in concluding it had venue under Section 9a, because there was no evidence of negligence; and the trial court erred in concluding it had venue under Sections 23 and 27, because there was no evidence that a cause of action or part thereof arose in Orange County. We pass upon their no evidence points by considering only the evidence favorable to such findings. One of the essential elements of Franks’ case in order to prove a cause of action against the manufacturer based upon the law of products liability was proof that he was injured because the truck was in a defective condition when it left G.M.C.’s hands. Jack Roach-Bissonnet, Inc. v. Puskar, 417 S.W.2d 262 (Tex.1967). Later in Pittsburg Coca-Cola Bottling Works v. Ponder, 443 S.W.2d 546 (Tex.1969), in an opinion written by Chief Justice Calvert, this was added : “This is not to say that proof of the defect must be made by direct or opinion evidence; it usually can only be made by circumstantial evidence. As an example, see Darryl v. Ford Motor Co., supra. “While the theories of liability predicated upon res ipsa loquitur and strict liability are different, the problems of making proof confronting plaintiffs who seek to impose liability under the differing theories are quite similar. In an article in 23 Sw.L.J. 1, Dean Page Kee-ton University of Texas School of Law, states: “ ‘When seeking a recovery on a theory that a product was defective when sold by the defendant, plaintiff has substantially the same proof problems for recovering on a theory of strict liability as he does on a theory of negligence. Under both theories plaintiff must establish to the satisfaction of a jury a defect at the time of sale. Once the proof is sufficient to get to the jury on the existence of a defect, there is generally a basis for an inference of negligence.’ ” (443 S.W.2d at 548, 549) The question in the case before us is whether the evidence will support a reasonable inference that the defects described by the witnesses, the broken lugs, were on the truck when sold and that nothing happened to cause such defects after the truck was sold by G.M.C. The evidence does not support such an inference. There is no direct evidence that P.C.T. purchased a new G.M.C. truck with a defective wheel; consequently, we must look to see if those matters are proved by circumstantial evidence. The evidence shows the truck involved was a 1972 G.M.C. truck not over four or five months old. Beaumont White Truck and Trailer Company was doing the inspection work on P.C.T. trucks, and the acting service manager had not seen that truck before this accident. Rogers Tire Company did the tire work for P.C.T. Assuming the evidence supports a finding that the accident in issue was caused by the defective wheel, it is apparent that the evidence falls short of making the proof necessary to connect G.M.C. with a cause of action based upon products liability. Cf. Coca Cola Bottling Company of Houston v. Hobart, 423 S.W.2d 118, 125 (Tex.Civ.App., Houston — 14 Dist., 1967, error ref., n. r. e.). There is no showing that P.C.T. purchased a truck from G.M.C., in spite of the fact that the evidence shows P.C.T. was operating a late model G.M.C. truck. Even though the evidence may show that Beaumont White Truck and Trailer Company did the inspection work and this repair work for P.C.T., they did not do the tire work for P.C.T. There is no evidence that the wheel in question had not been off their truck before to repair a tire or for some other reason; and, consequently, there is no proof that the lugs were not broken after the truck came into P.C. T. hands. Reversed and remanded with instructions to the trial court to transfer the case as to G.M.C. to Harris County. Reversed and remanded.

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John REED, Jr., Appellant, v. W. S. EAKINS and Brooks Wilson, Independent Executor of the Estate of Alfred Glenn, Deceased, Appellees. No. 8450. Cour.t of Civil Appeals of Texas, Amarillo. April 29, 1974. Logan, Steib, Lewis & Symes, Curt F. Steib, San Angelo, for appellant. Sanders, Scott, Saunders, Brian & Fin-ney, Joseph M. Pritchard, Amarillo, for appellees. ELLIS, Chief Justice. Defendant-lessee appeals from an order of the district court of Potter County, Texas, overruling his plea of privilege to be sued in Tom Green County, Texas, the county of his residence, on a written lease contract. Reversed and rendered. John Reed, Jr., lessee, entered into a written lease contract for the lease of unimproved property located in Potter County, with W. S. Eakins and Alfred Glenn, now deceased, as lessor. Lessor brought suit in Potter County alleging that lessee had abandoned the property and sought recovery of $3,150 for past and future unpaid rentals; $97.88 expended for taxes levied upon the improvements; and expenses of $150 incurred and $1,000 to be incurred for maintenance, repairs and clean-up. Lessee filed a plea of privilege to be sued in Tom Green. County, Texas, the county of his residence, and lessor filed a timely controverting affidavit seeking to sustain venue in Potter County under subsection 5, Article 1995, Vernon’s Ann. Civ.St. A copy of the written lease was incorporated into lessor’s original petition and the original petition was incorporated in the controverting affidavit. The lease does not specify any place or any county where the designated rent is payable. Lessor, by his controverting affidavit, relies upon two provisions in the written lease to sustain venue in Potter County under subsection 5. Those lease provisions are: (1) “ . . . lessee shall pay as they become due all taxes that are levied by the various taxing authorities upon all improvements that he shall place upon said lots, and upon all personal property on said premises.” (2) “Lessee further covenants that he will promptly execute and fulfill all the ordinances of the City of Amarillo applicable to said premises and all orders imposed by the Board of Health and/or the Police Department for the correction, prevention and abatement of nuisances in or upon or connected with said premises during the said term, at Lessee’s expense.” In addition, the property is described in the lease as being located in Potter County. Therefore, lessor contends that the subsection 5 exception is satisfied. The trial court overruled the lessee’s plea of privilege, and this appeal has been perfected from that ruling. It is well established that exceptions to Article 1995 must be strictly construed and clearly established before a defendant can be deprived of the right to be sued in the county of his domicile. National Life Company v. Rice, 140 Tex. 315, 167 S.W.2d 1021, 1025 (1943). The burden is upon the plaintiff to bring himself within one of the exceptions to overcome that right. Burtis v. Butler Bros., 148 Tex. 543, 226 S.W.2d 825 (1950); Newlin v. Smith, 136 Tex. 260, 150 S.W.2d 233 (1941). There is only one venue fact necessary under subsection 5 to sustain venue in the county where suit is brought. This single fact is that defendant has contracted in writing to perform the alleged obligation in the expressly named county or some definite place therein. Petroleum Producers Co. v. Steffens, 139 Tex. 257, 162 S.W.2d 698 (Tex.Comm’n.App.1942, opinion adopted); Southwestern Investment Co. v. Allen, 160 Tex. 258, 328 S.W.2d 866 (1959). Under the provisions of the written lease it is apparent that the lessee is obligated to pay (1) the stipulated amount of rental, (2) the taxes levied by various governmental entities upon the property placed on the premises by the lessee, and (3) expenses relating to compliance with city ordinances and health regulations. By points one and two, appellant contends that the trial court erred in overruling his plea of privilege because the obligations regarding the payment of taxes and expenses of compliance with city ordinances as sued upon by the plaintiff were not expressly contracted to be performed in Potter County. After carefully examining the written lease agreement and the testimony, we are of the opinion that the provisions for payment of taxes by lessee are not sufficient to maintain venue in Potter County. By the written lease lessee is not obligated to pay the taxes to the lessor; the obligation, within the lease, runs from lessee to the respective taxing authorities. Lessor, upon default in payment of the taxes by lessee, chose to pay such taxes and seek reimbursement from lessee; hence, the obligation which is sued upon then arose. There is no provision within the written lease requiring reimbursement in Potter County, Texas. Lessor also seeks to maintain venue under subsection 5 by the provision in the lease whereby lessee is allegedly obligated to comply with the city ordinances and city health codes. It is contended that the description of the property as being located in Potter County necessarily means that such compliance can only be performed within such county. By the written lease, incorporated into the controverting affidavit, lessee is obligated for the expense of compliance with the City of Amarillo ordinances. The original petition of lessor seeks recovery of expenses incurred in cleaning up the property and making repairs; therefore, the primary obligation sued upon in this respect is that of refund of those expenses paid by lessor. Since the written agreement contains no provision for place of payment of those expenses, venue based on such reimbursement cannot be maintained in the county in which suit was brought. Texas Bank & Trust Co. of Dallas v. Custom Leasing, Inc., 402 S.W.2d 926 (Tex.Civ.App. — Amarillo 1966, no writ); Rorschach v. Pitts, 151 Tex. 215, 248 S.W.2d 120 (1952). The obligations of lessee to pay the taxes and expenses of compliance with the city ordinances and health regulations run from lessee to the respective governmental authorities. The obligations running from lessee to lessor are for reimbursement for taxes and other expenses paid by lessor, along with the unpaid rental, and from lessor’s petition and the evidence these obligations for payment to the lessor constitute the foundation of his suit. The written contract contains no provision regarding a specific place of payment of the rent or for payment of such expenses which may become reimbursable to the lessor. Only by implication and a somewhat strained construction, can the obligations sued upon be made performable in a county expressly named in the written lease contract. Venue cannot be fixed under subsection 5 by implication or doubtful construction. Saigh v. Monteith, 147 Tex. 341, 215 S.W.2d 610 (1948). The very obligation sued upon must be made performable only in the county expressly named within the written contract. Southwestern Investment Company v. Shipley, 400 S.W.2d 304 (Tex.1966); Rorschach v. Pitts, supra. Therefore, we hold that plaintiff-lessor has not met the burden of bringing himself within subsection 5. We sustain appellant’s points one and two. In his third point, appellant contends that since the principal and essential obligation of the defendant is one for the payment of the stipulated sum for “rental,” with the other obligations being only incidental thereto, and since no place of performance of such obligation is stated in the lease contract, no exception to the general rule of venue at the domicile is involved. Our determination that venue in plaintiff’s suit seeking recovery against defendant for unpaid rent and reimbursement for expenses cannot be maintained in Potter County under subdivision 5 pretermits our further consideration of appellant’s third point. Accordingly, the trial court’s order overruling defendant’s plea of privilege is reversed and judgment is here rendered ordering the cause transferred to Tom Green County, Texas.

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E. F. HUTTON, Appellant, v. William S. ZAFERSON, Appellee. No. 15301. Court of Civil Appeals of Texas, San Antonio. May 8, 1974. Rehearing Denied June 5, 1974. Don M. Baucum, King, Joseph & Bau-cum, San Antonio, for appellant. Charles C. Wright, San Antonio, for ap-pellee. BARROW, Chief Justice. Appellant, a licensed stockbroker, has appealed from a take-nothing summary judgment entered in its suit to recover for stock allegedly purchased for appellee pursuant to his telephone order. The trial court held that the claim was barred by the Statute of Frauds, towit: Article 8.319, Texas Business & Commerce Code, Tex. Rev. Civ. Stat. Ann. V.T. C. A. The summary judgment is based on the pleadings, written interrogatories, and affidavits of appellee, of Michael Muns, an account executive of appellant, and of Daniel Howell, assistant vice-president of appellant. Although appellee denied under oath that he ordered the stock, he concedes that on this appeal from the granting of the summary judgment we must accept as true the testimony of Muns and Howell regarding the transaction. The following facts are thus established. Prior to March 2, 1973, appellee had frequently telephoned Muns and obtained quotes on various stocks, including Lake Shore Mines (LKK). The two persons had never personally met, although appellee had purchased through Muns 2,000 shares of Henry’s Drive Inn stock on January 31, 1973, for approximately $1,100.00. About 8:50 a. m. on March 2, appellee telephoned Muns and asked the latter to secure a quotation on LKK in that he wanted to buy 2,000 shares. Muns returned the call about 9:05, and appellee requested Muns to buy 2,000 shares at $4.00. The order was placed to appellant’s New York office, and such representatives purchased the stock on a stock exchange. Upon receiving confirmation of the purchase, Muns telephoned appellee and confirmed the sale. At such time, appellee requested Muns to secure an additional 2,000 shares at 3⅝-This order was filled that day, and in confirming same to appellee, Muns, at the suggestion of Howell, requested an $8,000.00 deposit from appellee. Appellee declined and reminded Muns that a purchaser had five business days in which to pay for the stock secured by a broker. Appellee acknowledged that he would bring the money in on March 9. On March 9, 1973, appellee received written confirmation from appellant’s Houston office confirming the purchase of 4,000 shares of LKK and billing him for the cost plus commission. On March 12, 1973, appellee telephoned Howell and advised that he had never ordered such stock. The 4,000 shares of stock were then sold by appellant at a net loss of $4,383.05. Suit was filed by appellant against appellee to recover the amount of such loss together with exemplary damages for appellee’s fraud in procuring said stock. It was alleged by appellant that ap-pellee intentionally defrauded appellant by taking advantage of the five day grace period rule for covering a transaction, and that appellant did not intend to pay for the stock unless it increased in value within the grace period. It was alleged that ap-pellee had used this same scheme on other occasions. Section 8.319, supra, provides in part: “A contract for the sale of securities is not enforceable by way of action or defense unless (1) there is some writing signed by the party against whom enforcement is sought or by his authorized agent or broker . . . ; or (2) delivery of the security has been accepted or payment has been made . . . ; or (3) within a reasonable time a writing in confirmation of the sale or purchase and sufficient against the sender under Subdivision (1) has been received by the party against whom enforcement is sought and he has failed to send written objection to its contents within ten days after its receipt; or (4) the party against whom enforcement is sought admits in his pleading, testimony or otherwise in court that a contract was made. ...” Appellant concedes on this appeal that its claim is based on the telephone request by appellee and that none of the statutory exceptions is applicable. Therefore, the question before us is whether or not the contract between a stockbroker and his customer, whereby the broker is engaged on a commission basis to buy shares of stock for the customer, is subject to this statute of frauds. We have not been cited to a Texas case which considered this question, or found one by our independent research. It is seen that the Uniform Commercial Code Comment No. 2, under this section states in part that Subdivision (3) is important in the relationship of broker and customer; and, thus, inferentially at least, indicates that Subdivision (3) is applicable. Furthermore, in Weiss v. Dempsey-Tegler & Company, 443 S.W.2d 934 (Tex.Civ.App. — Amarillo 1969, writ ref’d n.r.e.), the court, by dicta, assumed this statute was applicable to the relationship between broker and customer. Nevertheless, the court there held that the broker was acting as the agent of the customer in purchasing 30 shares of common stock pursuant to the customer’s telephone request. Four cases from other jurisdictions have considered the question and all held that the statute of frauds is not applicable to a transaction where the customer authorizes his broker to purchase stock for him on a commission basis, in that this is not a contract for the sale of securities, but merely a contract of agency. See Lindsey v. Stein Brothers & Boyce, 222 Tenn. 149, 433 S.W.2d 669 (1968); Reinhart v. Rauscher Pierce Securities Corp., 83 N.M. 194, 490 P.2d 240 (New Mexico Court of Appeals 1971); Stott v. Greengos, 95 N.J.Super. 96, 230 A.2d 154 (1967); DiJulio v. Digicon, Inc., 339 F.Supp. 1284 (United States District Court of Maryland 1972). This same rule is recognized by all the textbook writers who have considered the question. In Israels and Guttman, Modern Securities, Transfers, Appx. pp. 70-71 (1967), it is stated: “As between a broker and his customer the applicability of this section will depend upon whether or not the broker acts as agent, or (as in some transactions on the over the counter market), as principal sells to or purchases from his customer. . . . Where the broker acts as agent the contract between broker and customer is not ‘for the sale of securities.’ . . . [Ejven where . the transaction is conducted entirely orally (perhaps entirely by telephone), the contract should be completely enforceable under the general provisions of the Statute of Frauds permitting enforcement of oral contracts performable within one year. ... In strict terms, this section would not be applicable in such a case.” (4 UCC Reporting Service, p. 215). See also 3 Anderson, Uniform Commercial Code, Investment Securities, Second Ed., Section 8-319:5, p. 789; 21 A.L.R.3d 964, 977, Section 4(d). This rule is logically sound and clearly within the purpose of the Uniform Commercial Code by bringing the law governing commercial transactions into accord with actual commercial practice. It would not be logical or practical for a customer to call a broker and tell him to buy or sell some shares of stock and then have up to ten days in which to confirm or deny such action. Furthermore, the customer’s contract with the broker is not a sale as defined by our Code. See Section 2.106, supra. Rather, the status of the broker is clearly that of an agent. See Restatement of the Law, 2nd Ed., Agency, p. 7; 12 C. J.S. Brokers § 11. The trial court erred in holding that the contract between appellant and appellee was barred by the Statute of Frauds. The take-nothing summary judgment is therefore reversed and the cause remanded for trial on the merits. . See A. T. Brod & Co. v. Perlow, 375 F.2d 393 (2nd Cir. Court of Appeals 1967).

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Lawrence E. WRIGHT, Appellant, v. Chester MODDRELL, Appellee. No. 7577. Court of Civil Appeals of Texas, Beaumont. May 16, 1974. Motion for Rehearing Overruled June 6, 1974. Stanley M. Kaufman, Dallas, for appellant Joe Colbert, Austin, for appellee. DIES, Chief Justice. This is a rear-end automobile collision case. Plaintiff, below, was driving the lead car and was struck from the rear by an automobile driven by defendant below. Trial was to a jury which found defendant negligent but also found that plaintiff failed to keep a proper lookout to the rear and that this was a proximate cause of the collision. The trial court sustained plaintiff’s motion to disregard these findings (as being supported by no evidence) and entered judgment for plaintiff in the amount of $1,227.00, from which defendant has appealed. The trial court is authorized to disregard these findings only if they have no support in the evidence. Rule 301, Texas Rules of Civil Procedure, Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273 (1958). So, in this review we search this partial record to ascertain if there is any evidence of probative force to support the jury findings disregarded by the trial court. In rush hour traffic, plaintiff was behind a large truck on Airport Boulevard in the City of Austin. Plaintiff’s car was small, and he couldn’t see the traffic signal above the truck height. When he could see, it was on yellow. The truck went on through; plaintiff stopped and was struck from behind by defendant. Plaintiff says he may have stopped a little more abrupt than usual, but it wasn’t an emergency stop. He admitted that as he approached the intersection he did not look into the rear-view mirror and did not see defendant. Defendant admitted the light was red before the accident occurred but contended plaintiff should have gone through the yellow light because “[tjhat’s just a caution light.” He described plaintiff’s stop as “a little creeping stop.” He saw plaintiff’s rear stop lights come on. We feel constrained to follow the late, great Judge Norvell in Bass v. Stockton, 236 S.W.2d 229, 230 (Tex.Civ.App., San Antonio, 1951, no writ) where he wrote: “There is no circumstance here, other than the fact that Mrs. Bass stopped on a yellow light, which can he relied upon to support the finding that she failed to keep a proper lookout for the automobile following her. It was not shown that she was speeding immediately prior to arriving at the intersection, nor that she failed to signal her intention to stop. She simply failed to run the yellow light as Stockton perhaps thought she would. It seems to us that in view of the wording of the statute, as well as for considerations of personal safety, a cautious person would stop on a yellow light, and evidence showing that a motorist did that and nothing more is insufficient to support a finding of negligence. The law does not require one to employ split-second timing in determining whether to cross a street intersection on a yellow light or not. “It seems that Mrs. Bass’ omission, if ' any, was in failing to observe the Stockton car in her rear vision mirror. Since she stopped her car in conformity with the provisions of the law and it was not shown that she failed to give a proper signal to the car following her, it is clear that the jury’s answer to the proximate cause issue is likewise without sufficient support in the evidence,” See also Colom v. Vititow, 435 S.W.2d 187 (Tex.Civ.App. Houston — 14 Dist., 1968, error ref. n. r. e.) ; Kuykendall v. Doose, 260 S.W.2d 435 (Tex.Civ.App., Amarillo, 1953, error ref. n. r. e.); Yellow Cab Company v. Davila, 454 S.W2.d 266 (Tex.Civ.App., Amarillo, 1970, error ref. n. r. e.); Art. 6701d, § 33, Vernon’s Ann.Civ. St. To hold otherwise would require motorists to proceed on a yellow light or face possible conviction of contributory negligence. We regard this as being unwise. The trial court’s judgment is affirmed. Affirmed.

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DELHI GAS PIPELINE COMPANY, Appellant, v. E. C. HEDDIN et ux., Appellees. No. 753. Court of Civil Appeals of Texas, Tyler. April 25, 1974. Rehearing Denied May 30, 1974. Jackson, Walker, Winstead, Cantwell & Miller, Jack Pew, Jr., Dallas, for appellant. Wynne & Wynne, Wills Point, Elliott & Bass, Clyde Elliott, Jr., Canton, for appel-lees. DUNAGAN, Chief Justice. This is a condemnation case. This cause bears the same style as another decision recently announced by this court, bearing Docket No. 736, and reported in 508 S.W. 2d 417. Both are condemnation cases but pertain to different tracts of land. This is one of a number of appeals brought about by the condemnation of a strip of land through Van Zandt County, Texas, for the purpose of laying a gas transmission pipeline. Delhi Gas Pipeline Company, appellant-condemnor, brought this suit against E. C. Heddin and wife, Lillie Belle Hed-din, -appellees, to determine the amount of loss, if any, in market value of the Heddin property, suffered after a 1.5 acre easement from their land was taken to construct a gas transmission pipeline. The Heddins own an almost square-shaped 80 acre tract of land in Van Zandt County, Texas. The easement runs generally north to south through the western edge of the property. The land actually condemned for purposes of the easement is 50 feet wide and 1,644 feet long, leaving a remainder of 78.5 acres. The right-of-way easement houses a pipeline 12% inches in outside diameter, buried thirty-six inches under the ground. Admittedly, the gas transported contains approximately 3.2 percent hydrogen sulfide, a lethal poison. It is the dangerous nature of the contents of this line and the fear created by its presence on the land which generate the entire controversy of this appeal. In answer to special issues the jury found: (1) the per acre value of the property actually taken for the easement before the taking was $400.00; (2) the per acre value of the property actually taken for the easement after the taking was $50.00; (3) the per acre value of the remainder before the taking was $400.00; and (4) the per acre value of the remainder after the taking was $275.00. Upon this verdict— that the 1.5 acre easement was damaged $350.00 per acre and the 78.5 acre remainder was damaged $125.00 per acre, the trial court rendered judgment for appellees in the amount of $10,287.50, less deposits. Appellant alleges the large diminution in market value stems from an error on the part of the trial court in allowing in evidence certain inflammatory and inadmissible testimony which improperly influenced the jury. We reverse the trial court and remand the cause for a new trial. We have previously decided two cases involving this same pipeline through property located in the same general area of the property in question. Although the trial strategy seems to have remained constant during the three trials, basic differences have arisen which dictate independent outcomes. Appellant, through its Point of Error No. 2, asserts that it was error on the part of the trial judge to permit witness La-hecka to testify to a rupture of a Pan American pipeline in 1971, over its objection “that such rupture could have no relevance to the market value of the property involved in the present case as of the date of taking, December 8, 1970.” We feel this point to be controlling. This point was not presented to us in either of the other two cases appealed to this court by Delhi Gas Pipeline Company. During the course of this trial, three of the witnesses for the appellees, Robinson, Lahecka and Parkinson, were permitted to give testimony concerning damage caused by a rupture in a Pan American pipeline located approximately two miles away near Edgewood, Texas. This evidence was offered for the purpose of showing how the market value of the Heddin property had been diminished as a result of fear in the minds of the buying public created by the Pan American rupture. Appellees’ own witnesses testified the Edgewood rupture occurred in July of 1971, some eight months after condemnation of the Heddin property easement. When the witness, La-hecka, was attempting to testify about the Pan American rupture, the following took place: “MR. HARTMAN: Now, your Hon- or, I am going to make the objection that it being 1971, it is immaterial to any issue in this lawsuit because this Court has before it only the questions of the value of the property involved here immediately before and immediately after the date of December 8, 1970. And 1971 is not either immediately before or immediately after the date of December 8, 1970. And the Court has already ruled here that the only issue here on which this testimony can be received is on the question of market value. And the only question, of market value before this Court is immediately before annd immediately after December 8, 1970. “For that reason this testimony is completely irrelevant to any issue before the Court and jury, and we object to it for that further reason. MR. ELLIOTT: If the Court please, we also have sales of property which were used to determine the market value which ranged from ’69 to ’72, so obviously the word immediately before and immediately after doesn’t mean the minute before and the minute after. For instance Delhi pipeline wasn’t even installed until February or March of 1971, so if we are going to use December 8 as the determining factor, we couldn’t possibly know what the effect would be until the line was installed. So I am suggesting to the Court that the word immediately doesn’t mean the minute before and the minute after but a reasonable time before and a reasonable time after-wards. We are talking about the effect of this pipeline on this property from now on. “THE COURT: You may proceed. Objection overruled.. “MR. HARTMAN: Your Honor, may I make the further point by way of my objection, the question here before the Court is what a willing buyer would be willing to pay and what a willing seller would be willing to sell for regarding the date of December 8, 1970. “Now if the purpose of this testimony is to show how this Pan American line experience affects the market, then I submit to you that something that happened in 1971 could have had no effect at all on a willing buyer or willing seller around December 8, 1970, when neither of them knew about it or had heard about it because it hadn’t taken place. And that’s the objection we are making. “The Court having ruled, I would like to have all of the objections which we have made carried as a running bill of exceptions. “THE COURT: Granted, the running bill of exceptions.” The compensation for land taken by eminent domain is measured by the market value of the land at the time of the taking. Vernon’s Ann.Tex.Const., Art. 1, sec. 17; Vernon’s Ann.Civ.St., Art. 3268; Fuller v. State, 461 S.W.2d 595 (Tex.Sup.1970); City of Fort Worth v. Corbin, 504 S.W.2d 828 (Tex.Sup.1974). The record reveals that the requirements of Article 3268, Vernon’s Ann.Civ.St. were satisfied and the order of possession entered on December 8, 1970. Therefore, the Pan American pipeline ruptured after the date upon which the condemnor lawfully took possession of the easement. This being so, an event which occurred approximately eight months later could not affect the market value of the Heddin property determined as of the 8th day of December, 1970. The trial court erred in overruling the objection .of the appellant. The damaging nature of testimony concerning the Pan American pipeline rupture is clearly evident from the record as a whole. When another of appellees’ witnesses, Parkinson, testified over the same objection, he related how the Reid family, occupants of a nearby house, smelled an odor during the night, hurriedly left home, leaving their pets behind, and when they returned, they found two dogs and a cat dead, ten head of cattle dead in the adjoining pasture, and their home ruined. To further illustrate the destructive nature of this pipeline rupture, the same witness introduced into evidence pictures of the animals killed by the poisonous gas. Due to the impressive character of the testimony dealing with the Pan American pipeline rupture, we feel it was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Rule 434, Texas Rules of Civil Procedure. We are aware of the fact that another witness for the appellees, Robinson, testified about the Pan American • rupture prior to Lahecka and Parkinson without this same objection being raised. His testimony was similar to the witnesses which followed, covering most of the damaging aspects of the eruption. This testimony was objected to on the ground that it was hearsay, which objection was overruled. Had no objection been made to Robinson’s testimony, then we would have been constrained to rule that any error committed by the trial court in allowing into evidence the facts of the Pan American rupture to be harmless. The rule is well established in this State that the trial court’s admission of evidence over objection is deemed to be harmless when similar evidence to the same effect is offered and received without objection. Rowe v. Liles, 226 S. W.2d 253 (Tex.Civ.App., Waco, 1950, writ ref.); 23 Tex.Jur.2d, sec. 208, p. 320. We feel the foregoing rule of law to be inapplicable. The testimony of Robinson pertaining to the pipeline rupture was properly objected to on the grounds of hearsay. Had the trial court made the correct ruling, the evidence would not have been admitted. Under these facts it cannot be said that similar evidence was offered and received without objection. Judgment of the trial court is reversed and the cause is remanded.

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2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

David L. HOOPER, Appellant, v. MORGAN LEASING CORPORATION, Appellee. No. 17499. Court of Civil Appeals of Texas, Port Worth. May 3, 1974. Hooper, Perry & Bradshaw, and David L. Hooper, Abilene, for appellant. Gibson, Darden & Hotchkiss, Tony Hotchkiss, Fillmore, Lambert, Farabee & Purtle, and Glynn R. Purtle, Wichita Falls, for appellee. OPINION LANGDON, Justice. This is a suit by the plaintiff, Morgan Leasing Corporation, against David L. Hooper and Jimmy Underwood, d/b/a Underwood Pit Bar-B-Q, for damages arising out of an automobile leasing agreement between it and Hooper. Hooper and Underwood answered by way of general denial and Hooper also filed in connection therewith a counterclaim. In his counterclaim against plaintiff, Hooper asserts that he sustained damages because the plaintiff made Underwood a party defendant. This, he alleged, was because for more than ten years prior to this suit he and Underwood had been close friends and business associates, and that such relationship was strained or harmed because of the action of the plaintiff in naming Underwood as a defendant. (Under the record it appears that Underwood was the assignee of some of Hooper’s benefits under the leasing agreement. This undoubtedly was the reason the plaintiff named him as a party defendant.) Because of failure to comply with Rule 379, Texas Rules of Civil Procedure, the entire record in this case is not before the Court. The court granted plaintiff’s motion for summary judgment and awarded it a judgment against Hooper in the amount of $3,333.30. It was stipulated by the parties that the amount of the judgment was accurate. No judgment was entered against Underwood and Underwood is not a party to this appeal. The judgment contained the provision that, “All relief not herein granted is hereby denied,” which, in effect, disposed of Hooper’s counterclaim and plaintiff’s suit against Underwood. Hooper on this appeal contends that there is a genuine issue of fact in this cause and that the court erred in entering a final judgment which did not dispose of all parties and issues before the court. Hooper’s position in the trial court and in this Court is that his counterclaim against plaintiff for damages caused by making defendant Underwood a party requires the determination of a fact issue. We disagree. Hooper in his brief states that, “. . . Appellee maliciously went ahead with the filing of this litigation and caused Mr. Underwood to be made a Defendant. Appellee’s action in this regard damaged Appellant and gives right to Appellant’s counterclaim.” Malicious prosecution, as defined by the Texas courts, is an action for damages brought by a person against whom a civil suit or criminal prosecution has been instituted maliciously and without probable cause. The rule in Texas was established by the Supreme Court in Pye v. Cardwell, 110 Tex. 572, 222 S.W. 153 (1920). There the Court held that damages will not be awarded for the prosecution of civil suits with malice and without probable cause, unless the party sued suffers from interference by reason of the suits with his person or his property. See also Daughtry v. Blanket State Bank, 60 S.W.2d 272, 273 (Austin Tex.Civ.App., 1933, no writ hist.); Shapleigh Hardware Co. v. Keeland Bros., 60 S.W.2d 510 (Galveston Tex.Civ.App., 1933, no writ hist.); Beaurline v. Smith, 426 S.W.2d 295 (Corpus Christi Civ.App., 1968, ref., n. r. e.); 37 Tex.Jur.2d, p. 529, and the authorities there cited. We find and hold that Hooper’s cross-action failed to state a cause of action against the plaintiff, Morgan Leasing Corporation, and that the judgment entered by the trial court is sufficient to dispose of the counterclaim filed by defendant Hooper as well as the plaintiff’s suit against the defendant. Thus, all of the parties and the issues were disposed of by such judgment. The two points of error are overruled. The stipulation in support of the motion for summary judgment provided that upon payment of the sum adjudged against Hooper, the latter would be entitled to receive the original certificate of title to the automobile in question and to the transfer thereof. In view of this stipulation, we reform the judgment entered below so as to provide the delivery and transfer of the certificate of title to the appellant Hooper upon payment by him in full of the amount adjudged against him. The judgment as reformed is affirmed.