text:
    Clyde Cecil WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 40347.
    Court of Criminal Appeals of Texas.
    May 17, 1967.
    Norman Kinne, Dallas, (on appeal only), for appellant.
    Henry Wade, Dist. Atty., Scott Bradley, Robert Stinson, Jr., and Kerry P. Fitz-Gerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is Rape; the punishment, twenty-five (25) years confinement in the Texas Department of Corrections.

Appellant’s sole ground of error is the insufficiency of the evidence to sustain the conviction.

The complaining witness, a widow, 63 years of age, testified she lived alone at 216 West Main in Dallas, Texas; that on February 2, 1966, at approximately 3 P.M., she was raking debris in her yard when the appellant, whom she identified in Court, stopped in her yard and started petting her dog, a German Shepard, which was chained in the yard. When appellant ignored her requests not to pet the dog, the complainant informed him she was going to call the police and went into her house. Appellant followed her inside, made advances to her, and pushed her down on the bed which was covered by a blanket. Appellant took off his clothes, and forced the complainant to play with his private parts, and proceeded to tear off the complainant’s clothes. She begged him' to let her go, and at one point ran out of the house nude, crying and screaming, but was subdued by appellant and brought back into the house.

When the complainant refused to engage in sexual intercourse, appellant struck her a “staggering” blow to her head until she “saw stars”, and told her, “You had better do it.” She revealed that she continued to scream and beg to be released, and slapped appellant on his buttocks, but to no avail; that appellant actually penetrated her female organs and “continued until he got to his destination”; that appellant reached a climax; that following the attack, appellant cleaned himself off with a child’s T-shirt, which was being used as a dusting cloth.

The complainant testified that sometime before the appellant left her house, he jerked her telephone from the wall; that when he left she quickly dressed, found her partially loaded .22 caliber pistol and followed appellant, and when she located him nearby with a group of other men, she fifed the pistol, but it hit upon an empty chamber. A truck driver drove her five or six blocks to a Gas Company where she called police. Soon thereafter, the police arrested the appellant at the location to which the complainant directed them.

Complainant further revealed that she was ST" tall and weighed 119 pounds, and she had been placed in fear of her life by appellant, and that she had resisted as best she could appellant’s attack. The record does not reveal the age or size of the appellant.

Officer G. A. Thomason “testified that upon investigation of the rape complaint on February 2, 1966, he observed complainant’s telephone pulled loose from the wall and took into his possession complainant’s torn skirt, blouse, a child’s T-shirt, and the blanket from complainant’s bed. The chain of custody of such items was established, and Chemist Louie Anderson, testified he found blood and seminal stains on the blanket and T-shirt, as well as seminal stains on the men’s shorts taken from appellant at the time of his arrest.

Dr. Turner A. Wharton, testified he examined the complainant on February 2, 1966, and found her sexual organs bruised and torn, and sperm in her vagina.

Appellant did not- testify, but offered several witnesses to substantiate his defense of alibi. Such testimony showed that for most of the time, from before ten o’clock in the. morning on February 2nd until shortly before the time of the attack, appellant was across the street from the complainant’s house where he and three others drank $30.00 worth of liquor.

The jury'by their verdict rejected the defense of alibi, and we find the evidence sufficient to sustain the conviction.

Killingsworth v. State, 154 Tex.Cr.R. 223, 226 S.W.2d 455, and Canova v. State, 151 Tex.Cr.R. 252, 207 S.W.2d 404, are relied upon by appellant in his brief to support his ground of error. These cases are clearly distinguishable from the case at bar on the facts alone. In Killingsworth, the record revealed no evidence of an attempt to escape or that prosecutrix’s clothes were torn or any marks of violence on her body. The appellant there claimed consent.

Likewise in Canova, there was no evidence of resistance, no torn clothes or bruises or marks on prosecutrix’s body. The Court held there that the mere fact that appellant held both of complainant’s hands during the attack was not sufficient to show rape by force.

The judgment is affirmed.


source: Caselaw Access Project

author: MORRISON, Judge.

license: Public Domain

text:
    Austin Norris KING, Appellant, v. The STATE of Texas, Appellee.
    No. 40316.
    Court of Criminal Appeals of Texas.
    April 26, 1967.
    Rehearing Denied May 31, 1967.

      C. C. Divine, Houston, for appellant.
    D. Brooks Cofer, Jr., County Atty., William R. Vance, Asst. County Atty., Bryan, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is murder; the punishment, 14 years.

Our prior opinion reversing a conviction of this appellant for this offense is reported in King v. State, 396 S.W.2d 409.

In view of the fact that the evidence will be discussed only briefly, we will discuss the grounds of error as they appear in appellant’s brief filed in the trial court.

The first ground is that the witness Debra Jean Carter was not a competent witness. She was one of the witnesses who was not called in the prior trial, which, under the facts, brought about a reversal of the conviction. She testified that she was nine years old and in the third grade. She testified that as she and the other children were playing in the yard and while her mother and her aunt were in the house, appellant drove up to her home and called to her aunt to come out to his automobile. When she refused, he went in the house. She stated that some time later he came out and argued with her aunt and drew a knife on her while they were on the porch and that later he went to his automobile, got a gun and shot her mother as he was standing on the front porch. She stated further that her aunt was down the street at Mrs. Green’s at the time of the shooting. She stated that Officer Henry Johnson came to the house after her mother was shot.

We have examined Debra’s entire testimony and find that it meets the test set out in Hines v. State, 160 Tex.Cr.R. 284, 268 S.W.2d 459, in that her testimony was logical and probably true.

His second ground of error is based upon his contention that the State offered proof as to his difficulties with persons other than the deceased and relates to the asking of the following question propounded to appellant on cross examination. “Q. Isn’t it a fact that you thought she had gone in to call the police because that is what had happened before?” The general objection to the question was sustained, and it was not answered. Even if the record were clear as to whom the question referred, and it is not, it would not have been error to have permitted the question to be answered in view of the fact that deceased and her sister, Elgene, lived together.

His third ground is that the court erred in not instructing a verdict in his favor because of the insufficiency of the evidence. At this trial the witness who had testified at the former trial, as well as the children and the appellant testified. His contention seems to be that the witness Debra Carter was not competent, and that there was no evidence to disprove appellant’s claim of self defense. With this contention we do not agree. Earlier in this opinion we have found Debra to be competent, and Williams v. State, 88 Tex.Cr.R. 214, 225 S.W. 173, mentioned in appellant’s brief would support an affirmance of this conviction. See also Santillian v. State, 147 Tex.Cr.R. 554, 182 S.W.2d 812, 159 A.L.R. 1098.

His fourth ground of error is that appellant’s wife was brought into the courtroom for the purpose of identification. She was not placed on the stand and no questions were propounded to her. No error is reflected by this occurrence. See Jackson v. State, 136 Tex.Cr.R. 574, 126 S.W.2d 965, and Medina v. State, 163 Tex.Cr.R. 247, 289 S.W.2d 932. He also complains of the question propounded to appellant as follows: “Q. Don’t you know that you can put your wife up here and let her tell this story to the jury?” Duran v. State, 144 Tex.Cr.R. 614,165 S.W.2d 192, is authority for the rule that an allusion to a defendant’s failure to place his wife on the stand is not error. Under this same ground of error appellant complains of the introduction of State’s Exhibit #6, which the prosecutor testified was delivered to him by Vernell King, whom “other witnesses testified is the wife of the Defendant.” This was in rebuttal of appellant’s testimony that he had delivered the object to the police himself, and the jury was instructed that they might consider the same solely for the purpose of impeachment.

Ground of error five grew out of the cross examination of appellant’s reputation witness, who, with the permission of the court, was called out of order. He was asked if he had heard that the defendant had been convicted of negligent homicide in Washington County, to which the witness replied that he had not. In Vance v. State, Tex.Cr.App., 365 S.W.2d 182, we said, “A character witness who has attested the good reputation of an accused may, as affecting the weight, “credibility, and sincerity of his testimony, be asked on cross-examination if he had heard of acts of misconduct of the accused which were inconsistent with that reputation.” When a question concerning such charge was addressed to appellant on cross examination, the objection was sustained, and the jury was instructed not to consider the same.

Appellant’s sixth ground of error relates to the court’s charge. We find no objections to the charge in the record before us, and therefore nothing is presented for review.

Finding no reversible error, the judgment is affirmed.


text:
    Norman Douglas CARVER, Appellant, v. The STATE of Texas, Appellee.
    No. 40178.
    Court of Criminal Appeals of Texas.
    March 15, 1967.
    No attorney on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

This is an appeal from an order revoking probation.

On May 18, 1965, appellant was convicted for driving while intoxicated as a second offender; his punishment was assessed at three years in the Department of Corrections, and he was placed on probation, one of the conditions of which was that he avoid drinking alcohol during such period of probation.

At the revocation hearing appellant joined in a stipulation that his probation officer had twice found him in a state of intoxication from drinking alcohol to excess.

The trial court did not abuse his discretion in revoking probation.

The judgment is affirmed.


author: DICE, Judge.

text:
    Doris Thomas MATTHEWS, Appellant, v. The STATE of Texas, Appellee.
    No. 40324.
    Court of Criminal Appeals of Texas.
    April 26, 1967.
    Rehearing Denied May 31, 1967.
    Stanley I. Weinberg (on appeal only), Dallas, Charles W. Tessmer (on appeal only), Dallas, for appellant.
    Henry Wade, Dist. Atty., John H. Stauf-fer, Scott Bradley and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is under Art. 802b, Vernon’s Ann.P.C., for the subsequent offense of drunk driving; the punishment, forty-two months in the Texas Department of Corrections.

Trial was before a jury upon appellant’s plea of not guilty.

The issue of appellant’s guilt was first submitted to the jury, and upon return of the verdict of guilty appellant requested that the punishment be assessed by the jury. A hearing was then held on the question of punishment, as provided by Art. 37.07, subd. 2 of the 1965 Vernon’s Ann.Code of Criminal Procedure.

Five grounds of error are urged by appellant in his brief filed with the clerk of the trial court.

In his first two grounds, appellant insists that the court committed fundamental error in admitting evidence — at the main trial on the issue of guilt or innocence — of his prior misdemeanor conviction for driving while intoxicated, and in admitting evidence — at the separate hearing on the question of punishment — of a prior felony conviction against him for driving while intoxicated. Appellant insists that the court’s action was error because the evidence was admitted upon unwritten stipulations in which he did not personally join or waive his right to confrontation of the witness and right against self-incrimination.

The record reflects that at the trial on the issue of appellant’s guilt or innocence, counsel for the state and for appellant entered into a stipulation whereby it was agreed that if Judge Shelby Cox were present in court he would identify appellant as a person who was convicted in the County Criminal Court of Dallas County on May 13, 1957, of the misdemeanor offense of driving while intoxicated.

The record further reflects that at the time the stipulation was made the court inquired : “Does the defendant in person agree to the stipulation? And waive any rights in that regard?” Appellant’s counsel answered: “Yes, Your Honor, he does. I have explained his rights to him and he has waived this right.”

It is further shown that at the hearing on the question of punishment, counsel for the state and for appellant stipulated that if a certain deputy district clerk and deputy sheriff were present in court they would testify to certain facts which showed that appellant was convicted of the felony offense of driving while intoxicated, in Criminal District Court No. 2 of Dallas County, on July 21, 1961. Certain records and documents were also admitted in evidence under the stipulation.

The record shows that when the court inquired if the latter stipulation “may be entered as a part of the record” and if appellant “agrees and waives any rights in that regard,” his counsel answered in the affirmative.

At no time did appellant object to either of the two stipulations. Under the record it appears that he acquiesced in the stipulations and is bound thereby. See: Spencer v. State, 154 Tex.Cr.R. 427, 227 S.W.2d 552; Locke v. State, 168 Tex.Cr.R. 507, 329 S.W.2d 873; and Alexander v. State, Tex.Cr.App., 401 S.W.2d 818.

We do not agree that it was necessary that appellant consent to the stipulations in writing, as would be required under Art. 1.15 of the Code where a jury is waived in a non-capital case and evidence is stipulated.

The grounds of error are overruled.

In his grounds of error #3 and #4, appellant urges fundamental error in that portion of the court’s charge which instructed the jury with reference to its consideration of the evidence adduced showing appellant’s prior misdemeanor conviction for driving while intoxicated.

No objections were made by appellant to the charge.

In paragraph 3 of the charge, the court instructed the jury that it could not consider the evidence of appellant’s prior misdemeanor conviction for driving while intoxicated “as in any manner proving or tending to prove that the defendant did or did not drive a motor vehicle upon a public highway while under the influence of intoxicating liquor on or about the 2nd day of October, 1965.”

In paragraph 4 of the charge, the jury was instructed that if it found and believed from the evidence beyond a reasonable doubt that on or about October 2, 1965, appellant drove and operated a motor vehicle upon a public road while intoxicated and further found from the evidence beyond a reasonable doubt that he had theretofore been convicted of the misdemeanor offense of driving while intoxicated charged in the indictment, to find him guilty of a felony, as charged in the indictment.

The court’s instruction in paragraph 3 properly limited the jury’s consideration of the evidence introduced relative to appellant’s prior conviction. The instruction in paragraph 4 was a proper application of the law to the facts. The instructions, as given, were not contradictory and conflicting as to the burden of proof, as contended by appellant.

We perceive no fundamental error in the charge which would call for a reversal of the conviction.

We overrule appellant’s remaining ground of error, #5, in which he insists that the court committed reversible error “in failing to grant a hearing on appellant’s application for probation and in not considering said application or ruling thereupon.”

While the record reflects that after return of the jury’s verdicts in the case appellant made his application for probation of sentence, there is no showing that the court failed or refused to grant a hearing thereon or to consider the same. It was within the court’s discretion to grant or to deny appellant’s application for probation. Art. 42.12. 1965 Code.

The judgment is affirmed.


author: PER CURIAM. ONION, Judge.

text:
    Lonnie CLEMONS, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 40287.
    Court of Criminal Appeals of Texas.
    April 12, 1967.
    Motion to Reinstate Appeal Denied May 17, 1967.

      Wm. H. Hamblen, Edna, for appellant.
    Sam L. Gayle, Jr., County Atty., Edna, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

PER CURIAM.

The conviction is for a violation of the liquor laws; with punishment assessed at a fine of $500.

Notice of appeal was given after January 1, 1966.

The record on appeal does not include sentence pronounced by the court, as required by Arts. 40.09(1) and 42.02 Vernon’s Ann.C.C.P.

The appeal is dismissed.

OPINION ON APPELLANT’S MOTION TO REINSTATE APPEAL

ONION, Judge.

In dismissing his appeal, appellant insists that the Court overlooked the sentence contained in the record. The instrument to which he now directs our attention is the judgment of the Court, not the sentence. Since the effective date of the 1965 Code of Criminal Procedure, a sentence must be pronounced in every felony case and in every misdemeanor case, except where the maximum possible punishment is by fine only. Article 42.02, V.A.C.C.P. Further, Article 42.04, V.A.C.C.P. requires that the sentence in a case like that at bar shall be pronounced before the appeal is taken.

We observe that the written notice of appeal contained in the record expressly states that sentence was imposed. If such a sentence was pronounced and entered of record, but was not included in the record on appeal as required by Article 40.09, Section 1, V.A.C.C.P., it may be forwarded to this Court under proper certification. See Culbert v. State, Tex.Cr.App., 415 S.W.2d 646.

If a sentence was in fact pronounced in the case at bar but there was a failure for some reason to enter such sentence it may be entered nunc pro tunc. Article 42.06, V.A.C.C.P.

If, on the other hand, no sentence was ever pronounced, the trial court may now pronounce sentence and appellant may then appeal from that sentence if he so desires.

Appellant’s motion to reinstate his appeal is overruled.


author: MOORE, Justice.

text:
    S. A. (Sol) RHOADES, Appellant, v. J. B. (Tot) MILLER, Appellee.

      No. 280.

    Court of Civil Appeals of Texas. Tyler.
    April 27, 1967.

      W. D. Brown, Quitman, for appellant.
    I. E. Beavers, Winnsboro, for appellee.
   MOORE, Justice.

Appellee, J. B. Miller, sued appellant, S. A. Rhoades, for debt and for foreclosure of a materialman’s lien upon Lots 10-18, Block 10 of the Gray B. King Survey, in the City of Winnsboro, Texas. Appellee alleged that he contracted to sell and appellant agreed to buy 25½ cublic yards of ready-mix concrete at the agreed price of $429.17, to be used in the construction of a building situated upon the above described premises owned by appellant; that he performed the contract by delivering and pouring the concrete for appellant on February 21, 1966, but that appellant in total disregard of the agreement failed and refused to pay for the concrete; that as a result, appellee was compelled to place the account in the hands of an attorney for collection; that on March 8, 1966, he filed his affidavit for a lien with the County Clerk of Wood County, Texas, and thereafter delivered two copies thereof to appellant. His prayer was for a recovery of the debt, with an attorney’s fee in the amount of $200.00, and for foreclosure of the materialman’s lien. Appellant answered with a general denial and specially denied that he had entered into such contract with the appellee.

Trial was before the court, without the aid of a jury, after which the trial court entered judgment in favor of the appellee, Miller, for the debt in the amount of $429.-17, together with attorney’s fees in the amount of $150.00 for a total of $579.17 and for foreclosure of the lien.

Findings of fact and conclusions of law were not requested. Consequently, the record before us consists of only the transcript and statement of facts.

Appellant has brought forward three points of error. By the first two points, he contends that the trial court erred in admitting the lien affidavit into evidence over his objection because (1) the lien affidavit did not comply with the provisions of Article 5453, Vernon’s Ann.Civ.St., in that it failed to state the date when the material was furnished, and (2) that the court erred in admitting the affidavit for lien into evidence because there was no showing that two copies of the affidavit for lien had been served on appellant as required by Section 1 of Article 5453, supra.

By an appropriate counter-point, appel-lee contends that even though the lien affidavit was not admissible in proving a statutory lien, such would not affect the judgment because appellee was entitled to a constitutional lien under the provisions of Article XVI, Sec. 37 of the Constitution of Texas, Vernon’s Ann.St. We think this contention must be sustained.

Article XVI, Sec. 37 of the Constitution of Texas provides:

“Mechanics, artisans and material men, of every class, shall have a lien upon the buildings and articles made or repaired by them for the value of their labor done thereon, or material furnished therefor; and the Legislature shall provide by law for the speedy and efficient enforcement of said liens.”

Thus, if the owner contracts with a person to furnish labor or materials to improve his property and does not pay for it, then the laborer or materialman is entitled to assert his right against the property which he improved by his efforts or materials.

It is without dispute that the concrete was delivered by appellee, accepted by appellant, and used by him in the construction of a building upon the above described premises.

While appellee’s petition did not specifically allege the existence of a constitutional lien, this is not necessary to support the judgment. The section of the Constitution, above quoted, creates a lien whenever there is a contract to repair or construct a building and material or labor is furnished by the original contractor to the owner. Said Section 37 of Article XVI is self-executing and the lien created thereby exists independently of Article 5453, supra, enacted by the Legislature providing for the enforcement of liens. Moore v. Carey Bros. Oil Co., (Tex.Com.App.) 269 S.W. 75, 39 A.L.R. 1247; Aston v. Allison, (Tex.Civ.App.) 91 S.W.2d 852; Continental Radio Company v. Continental Bank & Trust Company, (Tex.Civ.App.) 369 S.W.2d 359. Thus, even though the legislative statute has provided a method by which such a lien may be perfected, as between the owner and the original contractor, the latter is not required to perfect a statutory lien but may rely upon the constitutional lien.

Since the record is before us without findings of fact and conclusions of law and the judgment contains no finding, we have no way of knowing whether the judgment is based upon a constitutional lien or upon a statutory lien. In these circumstances, the well-settled rule is that it is the duty of the reviewing court to affirm the judgment of the trial court if it can be affirmed upon any theory of the case finding support in the evidence. La Force v. Bracken, (Tex.Civ.App.) 163 S.W.2d 239, aff’d 141 Tex. 18, 169 S.W.2d 465; Texarkana Water Supply Corporation v. L. E. Farley, Inc., (Tex.Civ.App.) 353 S.W.2d 885.

There being no question of homestead involved, the judgment can be sustained upon the theory that a constitutional lien existed in favor of appellee irrespective of whether appellee properly perfected a statutory lien. Thus, in any event the action of the trial court in admitting the affidavit for a statutory lien would be harmless under Rule 434, Texas Rules of Civil Procedure.

By the third and final point of error, appellant contends that the court erred in rendering judgment against him for $150.00 attorney’s fees because there was no evidence showing that such a fee was reasonable. This contention must be sustained.

Appellee offered no proof of any kind as to the reasonableness of the attorney’s fees sought to be recovered. He contends that the trial judge was authorized to adjudicate the reasonableness of the attorney’s fees without the benefit of the evidence and cites numerous decisions of the Courts of Civil Appeals supporting his contention.

Under a recent ruling by the Supreme Court of this state, the question of the reasonableness of attorney’s fees was held to be a question of fact to be determined by the court or jury as any other fact issue and as such is required to be supported by competent evidence. Great American Reserve Insurance Company v. Britton, (S.Ct.) 406 S.W.2d 901, citing Johnson v. Universal Life & Accident Ins. Co., 127 Tex. 435, 94 S.W.2d 1145. Since the finding of the reasonableness of the attorney’s fees was not supported by any evidence, that portion of the judgment awarding attorney’s fees must be reversed.

In this connection, it is noted that the judgment not only foreclosed the lien for the amount of the debt, but also for the amount of the attorney’s fees. This is not permitted. The constitutional lien exists only for labor done or materials furnished. The lien provided for therein does not include attorney’s fees. 38 Tex.Jur.2d, Sec. 103, page 667; Hennemuth v. Weatherford, (Tex.Civ.App.) 278 S.W.2d 271.

Consequently, it becomes our duty to reform the judgment so as to permit ap-pellee a recovery only upon the debt in the sum and amount of $429.17 and for foreclosure of the lien thereon. In view of the fact that the claim for attorney’s fees is a severable claim, we are authorized to sever the claim and reverse the judgment as to it only, which we do. Great American Reserve Insurance Company v. Britton, supra. Accordingly, the severed cause as to attorney’s fees is remanded to the trial court for a new trial. The remainder of the judgment, as reformed, will be affirmed.


author: STEPHENSON, Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Arthur BROOKS, Appellee.
    No. 6887.
    Court of Civil Appeals of Texas. Beaumont.
    April 6, 1967.
    Rehearing Denied May 5, 1967.
    Fuller, Fuller & McPherson, Port Arthur, for appellant.
    Carl Waldman, Beaumont, for appellee.
   STEPHENSON, Justice.

This is a suit brought under the Workmen’s Compensation Law. Trial was by jury and judgment was rendered for plaintiff to recover 19 weeks total disability and for permanent partial disability. The sole question before this court is whether the trial court erred in not granting defendant’s motion for mistrial. The parties will be referred to here as they were in the trial court.

Testimony was heard upon such motion for mistrial and the record shows the following : One of the jurors came up to plaintiff and his wife the first day of the trial and asked them if she could ride to Port Arthur with them at the end of the day if she missed her bus. She was told that she could and the juror did ride with them from the courthouse in Beaumont to her home in Port Arthur. The second day of the trial once again this same juror asked for a ride, and was again given a ride by plaintiff’s brother-in-law with plaintiff and his wife also being in the automobile.

Plaintiff contends that inasmuch as the record shows that the case was never mentioned, and defendant has not demonstrated that it suffered probable harm, that the trial court properly overruled the motion for mistrial citing Rules 327 and 434, Texas Rules of Civil Procedure. Plaintiff also cites many cases involving jury misconduct holding that “probable harm” must be shown, however, none of these cases involve the precise point raised in this case.

We do not consider this to be the typical jury-misconduct case in which an improper communication is made to the jury or in which the jury received other testimony, or an incorrect answer was given on voir dire examination. The direct point involved here is whether a party to a suit may confer some special favor upon a juror, even though the favor is solicited by the juror. We have concluded that the sanctity of trial by jury must be protected and that the act complained of here cannot be condoned nor permitted. It is human nature that a special favor results in a special obligation and jurors must be free of any obligation to either party.

This decision is in line with all of the cases cited to this court, which are as follows : Beazley v. Denson, 40 Tex. 416, a case in which a juror was treated to cheese, crackers and a drink by the prevailing party. Albers v. San Antonio & A. P. Ry. Co., 36 Tex.Civ.App. 186, 81 S.W. 828, a case in which a juror spent the night in the home of a witness for one of the parties accompanied by that party’s attorney. Texas Milk Products Co. v. Birtcher, 138 Tex. 178, 157 S.W.2d 633, a case in which plaintiff bought a juror a coca-cola. Cloudt v. Hutcherson, Tex.Civ.App., 175 S.W.2d 643, a case in which 2 or 3 jurors played golf with an attorney representing one of the parties. Campbell v. Struve, Tex.Civ.App., 30 S.W.2d 344, a case in which a juror requested and secured a ride in an automobile with the prevailing party a distance of about 5 blocks.

Plaintiff insists that defendant has shown nothing more than that the juror was given transportation and that defendant has not shown any probable harm. We hold that defendant has gone as far as the law requires it to go in this type of case. “Our constitution provides that ‘The right of trial by jury shall remain inviolate.’ Article 1, §15, Constitution. * * * This means a trial by a jury unaffected by bribes, promises of reward and improper requests to ‘do all you can to help me.’ ” Texas Employers’ Ins. Ass’n v. McCaslin, 159 Tex. 273, 317 S.W.2d 916.

We hold as a matter of law that probable prejudice to defendant was shown under Rules 327 and 434, T.R.C.P.

Reversed and remanded.


author: WILSON, Justice.

text:
    Arch B. MARSHALL, Appellant, v. NORTHEAST HOUSTON INDEPENDENT SCHOOL DISTRICT et al., Appellees.
    No. 4613.
    Court of Civil Appeals of Texas. Waco.
    April 20, 1967.
    Rehearing Denied May 11, 1967.

      Red & Kemp, John F. Gay, Houston, for appellant.
    Bracewell & Patterson, Harvin C. Moore, Jr., Joe Jaworski, Houston, for appellees.
   OPINION

WILSON, Justice.

In an ad valorem tax action the taxpayer appeals from a take-nothing judgment on an instructed verdict. He sought cancellation of the school district’s tax assessment, an injunction, and recovery of taxes on realty paid under protest.

The taxpayer’s whole case is that two neighboring tracts of other owners were assessed at $400 per acre, whereas his own land was assessed at from $400 to $520 per acre. He says that although his two neighbors’ lands “were worth 30% more than appellant’s property they were assessed at 12% to 13% less.” He contends the constitutional requirements of equality and uniformity of taxation are thereby denied.

The taxpayer adduced no evidence of the market value of either his own land or the other two tracts. His evidence was confined to showing detrimental factors concerning his own land and advantageous points about the other. To disparage his own he introduced evidence of flooding, inaccessibility, oil wells, and the proximity of ditches, a sewage disposal plant and railroad tracks. The two nearby properties, it is argued, are not thus blemished.

The taxpayer alleged in general terms that the school district “conceived of an illegal scheme and plan of valuation” by assessing “without regard to fair market value as reflected by sales between willing sellers and willing buyers”; that the assessment “did not take into consideration the fair market value” of his lands; that other lands in the district were assessed “at a smaller percentage of fair market value” than his; and that his land was assessed at more than its fair market value. His points assert the instructed verdict was unauthorized for these reasons.

There are decisions which apparently support the rule that to show substantial injury from discrimination based on alleged inequality it is first necessary to prove market value as a basis for comparison, to show that the land in question is taxed at a higher percentage “of market value” than others. Whelan v. State, 155 Tex. 15, 22, 282 S.W.2d 378, 385; Milligan v. Corsicana Independent School Dist., Tex.Civ.App., 381 S.W.2d 97, no writ; Jackson v. Maypearl Independent School Dist., Tex.Civ.App., 392 S.W.2d 892, no writ. Appellant concedes he did not introduce such evidence, but says he accomplished the same goal by showing the other two tracts were. 30% more valuable than his, and were assessed at a smaller amount.

It is not necessary for us to here decide this question or to turn the case on a narrow ground. It “is not sufficient to show, comparatively, that in other isolated instances, property of equal or greater value than that in suit, was valued at less.” State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569, 573; Dallas County v. Dallas Nat. Bank, 142 Tex. 439, 179 S.W.2d 288, 289; Hutchinson v. City of Dallas, Tex.Civ.App., 290 S.W.2d 253, 257, no writ. This is the full extent of appellant’s proof. It fails. It is “not necessary that the taxpayer make a comparative showing with all other property in the county,” the Supreme Court said in the last cited cases, “but he must make at least a reasonable showing in that respect.” The judgment is affirmed.


author: WERLEIN, Justice.

text:
    C. V. RORIE, Appellant, v. AVENUE SHIPPING CO., Ltd., et al., Appellees.
    No. 14986.
    Court of Civil Appeals of Texas. Houston.
    On Rehearing April 27, 1967.
    Rehearing Denied May 18, 1967.

      Mandell & Wright, Arthur J. Mandell, Houston, for appellant.
    Royston, Rayzor & Cook, Bryan F. Williams, Jr., Galveston, for appellees Avenue Shipping Co., Ltd. and Trinder Anderson & Co., Ltd.
    McLeod, Alexander, Powell & Apffel, V. W. McLeod, Galveston, for appellee City of Galveston.
    Eikel & Goller, Theodore Goller, Houston, for appellee Strachan Shipping Co.
   On Motion for Rehearing

WERLEIN, Justice.

On motion for rehearing appellant’s motion for leave to file supplemental transcript is granted and this Court’s opinion handed down on March 30, 1967 is withdrawn and the following opinion is substituted therefor.

This is an appeal from a judgment entered July 12, 1966 dismissing for want of prosecution appellant’s cause of action brought to recover damages for personal injuries sustained by him on September 6, 1960 while working as a longshoreman in the hold of the SS Armagh assisting in unloading bulk ore from such vessel. Appellant filed suit on March 24, 1961 against the City of Galveston and the owners and operators of the ship, Avenue Shipping Co., Ltd. and Trinder Anderson & Company, Ltd., both foreign corporations, sometimes herein called Avenue, inasmuch as their positions in this litigation are identical. Said appellees were duly served with citation and answered. On March 27, 1961 appellant demanded a jury and on April 13, 1961 filed his first amended original petition. On petition of Avenue, the suit was removed to the United States District Court.. It was remanded to the State court on motion of the City of Galveston on May 29, 1961. On September 14, 1961 Strachan Shipping Company, appellant’s employer, the contract stevedore, sometimes called herein Strachan, filed its answer to the cross-action filed against it by the City of Galveston. The court’s docket sheet shows that no action whatever was taken in the case from May 29, 1961 until August 5, 1965.

On August 5, 1965, the court sent out notices to counsel for all parties except Stra-chan that the case would be dismissed for want of prosecution at the call of the dismissal docket on October 6, 1965 unless good cause was shown in open court at such time why said cause should not be dismissed. Upon receipt of said notice appellant’s counsel in writing on September 27, 1965 requested the court not to dismiss the cause of action for the reason that the case was not brought to trial prior to the date of such notice because of the then existing pending claim for compensation under Title 33, Section 901 et seq., generally known as the Longshoremen’s & Harbor Workers’ Act. It was also stated, “It was felt that this would seriously jeopardize plaintiff’s case if a compensation claim would not be disposed of first. This is to advise you that this claim had been disposed of by an award by the Honorable C. D. Cal-beck, United States Deputy Commissioner, and, therefore, the case can now go to trial without prejudice to the rights he had under the Act. Our Mr. Kirtley is now requesting the case for trial for your next jury assignment. Every effort is being made to dispose of this case by that date.” As a result of such communication, the court retained the case upon the docket of the court. There was no objection or exception to the court’s action by any of the parties to the suit. Thereafter there was great activity in connection with the prosecution of the suit up to the time it was dismissed.

On December 14, 1965, as shown by the court’s docket sheet, appellant requested a setting of the case for trial on the jury docket in the December, 1965, term of court, and sent copies of such request to appellees, City of Galveston and Avenue. On December 23, 1965, the suit was continued by agreement. Appellant did not sue Strachan since such company was his employer and he was covered under the United States Longshoremen’s & Harbor Workers’ Act. Dismissal notices were again sent out by the court in March, 1966. On March 28, 1966 appellant requested a setting for the April term. On April 1, 1966 the attorney for the City of Galveston notified appellant’s attorneys that the court had set a pretrial hearing of the case for April 8, and that the .case was at the top of the docket for trial during the week of April 25, 1966. On April 8, 1966, the case was continued on motion of appellees. In said letter of April 1, 1966, counsel for the City of Galveston also stated that he would appreciate appellant’s counsel picking a day within the next two weeks that he could furnish appellant for the purpose of taking his deposition. On April 4, 1966, counsel for appellant notified counsel for appel-lees that he could present appellant for deposition at any time upon giving appellant’s counsel two to three days’ notice.

On May 10, 1966, counsel for appellant wrote the court advising that the last time he appeared before the court, the court had set the case down for trial on June 27, 1966 and for a pretrial hearing on June 10, 1966, and also advising that appellant would be ready to try the case on June 27, 1966. On June 10, 1966, the plea in abatement filed by the City of Galveston was overruled. On the same day the City filed its motion to dismiss and such motion was set for hearing on June 17, 1966. Strachan’s and Avenue’s motions to dismiss also came up for hearing on June 17, 1966. After hearing such motions and appellant’s motion to reconsider such motions to dismiss, filed by appellant on June 23, 1966, the court entered an order on July 12, 1966 dismissing the cause of action and all cross-actions.

The record shows further that on April 6, 1966 appellant filed what is denominated “Plaintiff’s First Amended Original Petition” which in fact was his second amended original petition, since his first amended original petition was filed April 13, 1961. On May 12, 1966, appellant filed his request for admissions addressed to the City of Galveston and/or its attorneys by name, and on the same day made request of Avenue for admissions. On May 12, 1966, appellant’s counsel filed an answer to the plea in abatement of the City of Galveston. On May 20, 1966, the City of Galveston filed its reply to appellant’s request for admissions. On May 27, 1966, appellant filed his third amended original petition. On June 10, 1966, Strachan filed its answer to the cross-action of Avenue. On May 16, 1966, there was filed in the court a stipulation of a compensation lien which was executed by the lawyers representing all the parties in the suit; on April 8, 1966, Avenue filed its first amended original answer and cross-action against the City of Galveston, and impleaded Strachan; on May 12, 1966 appellant filed his exceptions to the answer of Avenue, which appellant asserts in his brief were discussed with the attorneys for Avenue who agreed that the exceptions were good and who stated they would file an amended answer setting out specifically acts of contributory negligence on the part of appellant. The case was set for trial three times and at each setting appellant announced ready for trial. On April 12, 1966, appellant’s deposition was taken. On May 18, 1966, the deposition of the witness, W. L. Patterson, was taken.

At the hearing of the motions to dismiss, evidence was adduced consisting of the testimony of the attorneys representing appellant and appellees. The attorney for the City of Galveston testified in substance that this suit grew out of an accident involving a crane which was owned by The Galveston Wharves and that the operator of the crane, Frank McPeters, died on May 8, 1965; that he had not talked to McPeters but had obtained a statement made by him; that he received a notice that the case was set for dismissal in October, 1965, and as he remembered the court allowed it to stay on the docket at that time and that he did not object to the court’s order doing so.

The attorney for Strachan testified in substance that shortly after the cross-action was filed against Strachan he made a trip to Galveston and talked to a gentleman named Calvin Floeck who was at that time an assistant stevedoring superintendent "for Strachan, and obtained from him his evaluation and the circumstances of the accident; that after this case was set on the dismissal docket in February, 1966, Mr. Floeck died; that he had been informed approximately six weeks ago that Mr. H. Weber, who was gang foreman of Strachan at the time of the accident, died during the latter part of 1965.

The attorney for Avenue testified in substance that according to the records he had investigated, the SS Armagh was sold in 1961 and according to Lloyd’s List Reports on June 2, 1966 such vessel was in the Far East operating between Hong Kong and Japanese ports; that in his opinion there was no practical or feasible way to have reliable people board the vessel to ascertain certain conditions of her structure, especially in connection with Hold No. 5 in which appellant was working on the occasion in question; that after the deposition of appellant was taken on April 12, 1966 it became obvious to Avenue that the physical setup in the hold and its height and dimensions were material in the case inasmuch as the attorney for appellant and appellant were primarily basing their cause of action against Avenue on the ground of failure of the stevedores to use mechanical equipment in the hold, which Avenue had reason to believe would not have been practical because of the size of the hold and the shaft alley which bisected it; that they were not given notice in appellant’s original and first amended petitions that this was a specific ground of liability, and it was only after appellant gave his deposition that they felt such physical conditions were pertinent; that he had written his clients in England but that he had not as yet been successful in getting any response; that they had no statements with information from the officers aboard the ship; that in order to show that the operations in question were not performed in any manner which would render the ship liable, it would be necessary to look to the testimony of employees of the City of Galveston and employees of Strachan, because it was clear from appellant himself that the vessel’s personnel did not participate in any of the operations alleged to have caused appellant’s injury.

He also testified that Lloyd’s Registry states the place where the ship was built, but he had not contacted the vessel’s builder to determine whether the blueprints and diagrams of the vessel were available; that in December he did not object to the case remaining on the docket; that he did not attend the hearing of the setting of the case in March or April, 1966, when it was set again for dismissal, and that it was his impression that the April 6 setting was taken off the show-cause docket; and that the attorney for Strachan had obtained a capacity plan of the vessel, or a sister vessel, from the ship builders and had given him a copy of that, but it did not supply the information with respect to the dimensions of the cargo hold in question or of the shaft alley which bisects it or any longitudinal bulkheads in the hold which he considered material to the question as to the manner of discharging the particular cargo.

After hearing appellees’ testimony, the court stated that no action was taken in the case from May 29, 1961, until August, 1965, when dismissal cards were sent to all parties informing them that all cases which had been on the docket more than three years would be set up for dismissal on October 6, 1965, and that when such docket was called on that date Mr. Mandell or a member of his firm was present and stated that they did not wish the case dismissed and would proceed with it in the near future, and requested a setting for the December term; that on December 14, 1965, at the call of the docket it appeared to the court from the information available and discussions with the attorneys that the case was not ready for trial, and it was continued by agreement. The court further stated that no action was taken thereafter until the dismissal docket was set up in March, 1966, for April 6, and that in the meantime appellant’s firm submitted a request for setting on March 28 for the April term; that the case was put on the docket for the April term and upon the call of the docket on April 8 was continued again after considerable discussion among the lawyers and the court, and thereupon appellant again requested it be set for the June term of court; and that at the call of the docket on June 10, 1966, appellant announced ready. The court then found as a matter of law that the case had been on file for an unreasonable length of time but stated it would permit appellant to offer testimony to explain the delay.

One of appellant’s attorneys testified as to other litigation of his firm and as to appellant’s claim under the Longshoremen’s & Harbor Workers’ Act. He undertook to explain the delay prior to the dismissal notice of August, 1965, by saying that appellant’s counsel deemed it advisable to secure appellant’s compensation rights before proceeding with the third party case, although he admitted there was no legal reason why both claims could not be prosecuted at the same time.

At the conclusion of the hearing on June 17, 1966, the court stated that it granted the motions for dismissal and found that appellant had failed to show good grounds for the delay in the trial of the case, and also that appellees had been prejudiced thereby. On June 23, 1966, appellant filed his motion to reconsider appellees’ motions to dismiss for want of prosecution, which motion was inadvertently omitted by the District Clerk of Galveston County from the transcript filed herein although the affidavit of Mr. Mandell, counsel for appellant, attached thereto, was included in the transcript. Such motion is contained in the supplemental transcript now before us.

Appellant’s point of error is: “In passing on a motion to dismiss for want of prosecution, the lack of action at a time of or shortly before presentation of the motion to dismiss governs the court’s action.” Appellant in his brief does not assert, other than by implication, that the court erred or abused its discretion in dismissing the. case. Nevertheless, appellant has made it clear in his brief that he is complaining of the court’s action in dismissing his cause of action and in denying him the valuable right to a trial on the merits under the facts and circumstances developed at the hearing of appellees’ motions to dismiss and his motion for rehearing.

It is appellant’s contention, as set out in his brief that neither the trial court nor this Court should consider any delay in the case at bar from May 29, 1961 until October 6, 1965, since the court at such latter date retained the case on its docket, thereby indicating that it found there was good cause for the delay up to such date. In Chapman v. Gibson, 8 S.W.2d 711, Tex.Civ.App. 1928, the court said: “The want of action at the time of or just before the dismissal would control on the question of abandonment of the prosecution.” Also in David Graham Hall Foundation v. Highland Park Independent School District, 371 S.W.2d 762, Tex.Civ.App.1963, ref., n.r.e., the court, citing Chapman v. Gibson, stated: “In passing on a motion to dismiss on the grounds of abandonment the lack of action at the time of the presentation of the motion or just before the presentation will govern the court’s decision.” That case was an action for delinquent ad valorem taxes. When the suit was originally filed in 1942 only the taxes for the year 1941 were in question. When the school district and the town filed their amended pleadings in 1958 they sued for additional taxes which had accrued up to the year 1958. The State and County appeared by intervention for the first time in 1959.

Based upon the case of Ayers v. D. F. Quillen & Sons, Inc., Del.Sup., 188 A.2d 510, the following statement is made in 24 Am.Jur.2d 51, § 59: “A motion to dismiss for want of prosecution should not be granted if at the time of the motion plaintiff is diligently prosecuting his claim, even though at some prior period of time he had been guilty of gross negligence or neglect.” It is our view that after appellees filed their motions to dismiss the case for want of prosecution, the court in considering such motions was not restricted to what had occurred subsequent to October 6, 1965, but could also consider any delay which occurred prior to that date as well as all of the evidence adduced upon the hearing of such motions.

Our Supreme Court has held that a suit may be dismissed for lack of diligence in its prosecution in the past, although the plaintiff’s objections to the dismissal at the hearing thereon manifest his intention to prosecute it to judgment. Reed v. Reed, 158 Tex. 298, 1958, 311 S.W.2d 628; Bevil v. Johnson, 157 Tex. 621, 1957, 307 S.W.2d 85; Denton County v. Brammer, Tex.Sup. 1962, 361 S.W.2d 198. In the early case of Roemer v. Shackelford, Tex.Civ.App., 23 S.W. 87, however, Justice Williams, in speaking for the Court of Civil Appeals, stated: “There was no error in the refusal of the court to dismiss the suit in 1889 for want of prosecution. The plaintiffs were prosecuting it, continuances being entered from term to term, generally by agreement. If sufficient diligence was not being used, defendants’ remedy was to force plaintiffs to a trial, and not to dismiss for want of prosecution when plaintiffs appeared to represent their cause.” Appellant, in relying on Roemer v. Shackelford, supra, and Beasley v. Keck, 280 S.W. 855, Tex.Civ.App.1926, asserts that appellees’ remedy was to force appellant to trial, and not to have the suit dismissed for want of prosecution.

In Bevil v. Johnson, supra, the court, speaking through Chief Justice Hickman, used the following language with respect to dismissal of a motion for new trial or an independent suit:

“The matter rests in the sound discretion of the trial court. It is not an unbridled discretion, but a judicial discretion subject to review. Upon review, the question is whether there was a clear abuse of discretion by the trial court. That is a question of law. It is thought that only two decisions by this court need be cited in support of the rule just announced. However, there are many Texas cases cited in support thereof in 15-A Texas Jurisprudence, p. 383, § 41. In the First National Bank of Houston v. Fox, 121 Tex. 7, 39 S.W.2d 1085, 1086, this court held:
‘It is a well-established rule that in the absence of a statutory prohibition, every court has the power to dismiss a suit for want of prosecution. 9 R.C.L., p. 206, § 25; 18 C.J. 1191, 1192, § 110; Hall v. City of Austin, 31 Tex.Civ.App. 626, 73 S.W. 32.’”

The court further stated, with respect to such motion for new trial: “The fact that respondents had no intention to abandon it, or that their attorney had hopes of settling the case, cannot be made a ground for charging an abuse of discretion by the trial court. * * * Petitioners owed no duty to seek a hearing on respondents’ motion.”

In Callahan v. Staples, 139 Tex. 8, 161 S.W.2d 489, our Supreme Court announced the general rule in this language:

“Such rule as so developed and applied may be explained in these words: Where the defendant in a suit is called to answer and has responded to the call, the duty devolves on the plaintiff to proceed in prosecuting the suit to a conclusion with reasonable diligence, and whenever a delay of an unreasonable duration occurs, such delay, if not sufficiently explained, will raise a conclusive presumption of abandonment of the plaintiff’s suit, and a discontinuance results.”

See also Crosby v. DiPalma, 141 S.W. 321, Tex.Civ.App.1911, error refused.

It is our view that the instant case is factually distinguishable from the cases of Reed v. Reed, supra; Bevil v. Johnson, supra, and Denton County v. Brammer, supra. In Reed v. Reed, supra, the court stated in substance that a suit may properly be dismissed for past lack of diligence in its prosecution notwithstanding that the plaintiff’s objection to the dismissal at the time of the corresponding hearing was in effect a manifestation of his intent to prosecute the suit to judgment. In the Reed case citation was not issued for a period of almost fifteen months after the suit was filed. In the instant case citation was promptly issued and served. Furthermore, appellant did not merely express an intention to prosecute the case. Appellant had been diligently prosecuting the case for approximately eight months prior to its dismissal. In Bevil v. Johnson, supra, there was no activity in the case for a period of some eight years. In Denton County v. Brammer, supra, a condemnation suit, there was an unexplained delay of seven years in the issuance and service of citation upon the condemnor, and an unexplained delay of five years following the condemnees’ withdrawal of the award before the con-demnees obtained a setting and trial of the case.

It is our view that it was error and an abuse of discretion to dismiss appellant’s cause of action under the peculiar facts and circumstances of this case. The testimony of counsel for the City of Galveston shows that the operator of the crane, Mc-Peters, died on May 8, 1965. No attempt had been made to take the deposition of McPeters. Moreover, all of the 8 months' activity in the suit occurred after the death of McPeters without objection on the part of such counsel.

Counsel for Strachan did not make any attempt to take the deposition of Floeck or Weber. It is true that it has been held in this State that where a defendant has been called upon to answer in a law suit, the duty devolves upon the plaintiff to prosecute the suit diligently. This does not mean that the defendant should not also prepare his defense diligently by procuring the testimony of witnesses upon whom he relies. There is no reason why appellant should be charged with the loss of Strac-han’s witnesses as he had no more reason to expect their deaths than did appellees. Nor was it shown that other witnesses were not available who could give substantially the same evidence as Floeck and Weber.

Counsel for Avenue failed to show that the evidence concerning the structure of the ship and its hold could not be obtained from the builders of the ship. Again no effort was made to take the depositions of any of the owners or operators of the ship. Furthermore, the ship left Galveston sometime after the occurrence in question and was sold in the year 1961. The departure of the ship from Galveston and its sale in all probability made it just as difficult to obtain evidence from the owners and operators thereof in 1961 as in 1965 or 1966. It was not shown when counsel wrote his clients to obtain information. He requested no postponement nor did he file any application for continuance in order to have time to procure evidence from the owners or operators with respect to the structure of the vessel and its hold and the nature and condition of the equipment used on the occasion in question.

We have examined the cases cited by appellee. In none of them was there any activity for a substantial period of time prior to the filing of the motion to dismiss. In the instant case there was not only great activity for a period of nearly eight months prior to the time the suit was dismissed, but there was a diligent effort on the part of appellant to bring the case to trial. He announced ready for trial on three different occasions. This fact distinguishes the instant case from the cases relied upon by appellees.

The record indicates that appellant’s counsel was acting in good faith in an effort to best serve his client by not sooner pressing for trial. Although this suit might have been tried prior to the settlement of appellant’s claim for compensation in 1965 under the United States Longshoremen’s and Harbor Workers’ Compensation Act, appellant’s attorney felt that it would be in the best interest of his client not to try the case until his client had reached the maximum state of recovery and the compensation claim had been disposed of. We are also of the opinion that appellant showed reasonable grounds for not sooner pressing for trial in that there was a serious question prior to 1965 as to the liability of a ship owner for injuries to a longshoreman resulting from the use of shore-based equipment. It had been held by several Federal courts that a longshoreman could not recover for injuries sustained by him against the owner of the ship when the equipment causing the injury was shore-based and not of the type commonly found as a part of the gear that the ship would be expected to furnish. In McKnight v. N. M. Paterson & Sons, Ltd., 181 F.Supp. 434, the court held that where an independent contractor used a crane that was not an appurtenance of the ship, and the ship owner had no control over the choice of the crane, the defect in the crane which resulted in injury did not render the vessel unseaworthy and the longshoreman was not entitled to recover from the vessel owner on the basis of unseaworthiness. This judgment was affirmed by the U. S. Circuit Court of Appeals, 6th Cir., 286 F.2d 250.

Appellant’s counsel states that he was aware of the fact that there was pending in the U. S. District Court of California the case of Huff v. Matson Navigation Co., 225 F.Supp. 72 (1963). The judgment in such case was reversed by the U. S. Circuit Court of Appeals, 338 F.2d 205, 9th Cir. 1964, and certiorari was denied by the Supreme Court of the United States, 380 U.S. 943, 85 S.Ct. 1026, 13 L.Ed.2d 963, on March 15, 1965. This case held that the liability of the owner of the vessel to the stevedore’s longshoreman who was injured when hit in the hold of a vessel by a scraper which was a part of the stevedore’s dockside crane used to unload bulk sugar from the vessel, could be predicated on a claim of unseaworthiness. Thus, the question as to the liability of the ship owner for shore-based equipment was not resolved until 1965. Appellant’s counsel states that his duty to his client would have been substantially impaired had he prosecuted his client’s suit prior to the time that such law question had been finally decided by the Supreme Court of the United States. See Spann v. Lauritzen, 344 F.2d 204 (3rd Cir. 1965) reversing the judgment of the U. S. District Court, 237 F.Supp. 569, certiorari denied 382 U.S. 1000, 86 S.Ct. 531, 15 L.Ed.2d 489 (1966), holding the ship owner responsible for a longshoreman’s injuries caused by a shore-based crane. See also Deffes v. Federal Barge Lines, Inc., 361 F.2d 422 (Ct. of App., 5th Cir. 1966).

It is our view that appellant showed reasonable grounds for delay in bringing the case to trial in view of the unsettled state of the law prior to 1965. We are of the opinion also that the case should not have been dismissed for want of prosecution in view of the tremendous amount of activity in the case for some eight months prior to its dismissal, during which time none of the appellees or their counsel objected but instead measurably participated.

Judgment of the Trial Court is reversed and the cause is remanded for trial on its merits.

COLEMAN, J., not sitting.


author: CADENA, Justice.

text:
    Martine LEE, Sr., and Louvenia Lee, next friends of Martine Lee, Jr., Relators, v. James A. McKAY, Jr., District Judge et al., Respondents.
    No. 14603.
    Court of Civil Appeals of Texas. San Antonio.
    April 5, 1967.
    Rehearing Denied May 10, 1967.
    Evans & Marshall, San Antonio, for relators.
    Miles Johnson, Asst. Dist. Atty., San Antonio, for respondents.
   CADENA, Justice.

This is an original application for writ of mandamus filed by Martine Lee, Sr., and wife, Louvenia Lee, as next friends of their minor son, Martine Lee, Jr., who has been adjudged a delinquent child under the provisions of Art. 2338-1, Vernon’s Ann.Civ. St. (1964), and who has been committed to the State School for Boys at Gatesville. Respondents are the Honorable James A. McKay, Jr., Judge of the District Court, 150th Judicial District, in Bexar County, sitting as a Juvenile Court, Elton R. Cude, Clerk of the District Courts of Bexar County, and Harriet Tringle, court reporter for the 150th Judicial District Court. The purpose of the application is to compel said Clerk and court reporter to furnish, without cost, a transcript and statement of facts, although no appeal bond or deposit in lieu thereof has been filed, so that review may be had of the judgment rendered by Judge McKay revoking the probation of the minor and ordering him committed to the State School for Boys.

On May 14, 1966, the Juvenile Court entered an order declaring the minor to be a delinquent child and ordering him committed to the custody of the Texas Youth Council. However, such commitment was suspended and the child was placed on probation. On November 22, 1966, the Criminal District Attorney of Bexar County filed a petition seeking revocation of such probation. On December 22, 1966, Mr. and Mrs. Lee, as next friends of the minor, filed a petition praying that the judgment of May 14, 1966, be set aside and that the petition for revocation of probation be abated until the question of delinquency should be retried on its merits. On December 28, the Juvenile Court entered judgment denying the petition that the judgment of May 14, 1966, be set aside, revoking the probation of the minor and ordering him committed to the State School for Boys. No guardian ad litem was appointed to represent the interests of the minor, but the judgment reflects that his parents were present in the courtroom during the hearing which resulted in the judgment of December 28, 1966. Notice of appeal was given on December 29, 1966.

Under the provisions of Rule 385, Texas Rules of Civil Procedure, the time for filing a transcript and statement of facts in this Court expired on Monday, February 27, 1967, but this Court granted a motion, timely filed, to extend the time for such filing for a period of thirty days.

It is undisputed that no appeal bond or deposit in lieu thereof has been filed within thirty days after the rendition of the judgment, as required by Rule 356, T.R. C.P.

Except for the fact that notice of appeal from a judgment rendered in a delinquency proceeding must be filed within five days after entry of the judgment, Sec. 21 of Art. 2338-1 provides that appeals from such judgments “may be taken by any party aggrieved to the Court of Civil Appeals, and the case may be carried to the Supreme Court by writ of error or upon certificate, as in other civil cases.” It is clear that, despite the “last antecedent” rule of statutory construction, the qualifying phrase, “as in other civil cases,” cannot be held applicable only to the clause, “and the case may be carried to the Supreme Court by writ of error or upon certificate.” If the qualifying phrase is restricted in application to the last antecedent to which it may properly be applied, the result would be that the statute provides for appeals to the Court of Civil Appeals without specifying the rules governing such appeals. Clearly, then, “as in other civil cases” must be held applicable to appeals from Juvenile Courts to the Court of Civil Appeals, and, in determining whether an appeal bond or deposit in lieu thereof is required, we must look to the statutes and Rules of Civil Procedure governing appeals in civil cases.

Rule 44, T.R.C.P., provides that where a minor appears by next friend, such next friend must give security for costs or file an affidavit of inability to do so. However, as is evident from the express language of such rule, it is applicable only to cases where the minor appears as the plaintiff in a civil proceeding. A minor who stands before the bar of a Juvenile Court in a proceeding which may result in placing restraints upon his liberty and his actual physical detention, finds himself in a position which resembles that of a defendant much more than it resembles that of a plaintiff. Under Rule 173, T.R.C.P., when a minor is a defendant and has no guardian within this State, the court must appoint a guardian ad litem to represent the minor’s interests. In such cases, it is error for the trial court to enter judgment against the minor without appointing a guardian ad litem. Wallis v. Stuart, 92 Tex. 568, 50 S.W. 567 (1899); Jaynes v. Lee, 306 S.W.2d 182 (Tex.Civ.App., 1957, no writ).

Throughout the country, proceedings in juvenile courts are marked by an air of informality. Studies reveal that attorneys participate in no more than 5% of the cases. This informality is defended not only by labelling the delinquency proceeding a “civil” proceeding, but also by insisting that the juvenile court has as its purpose the meeting of the child’s “needs” and the serving of his “best interests,” rather than punishing him. That is, the purpose of the proceeding is to do something “for” the child, not “to” him.

It has been held that where the child’s parents are present during the proceedings in a juvenile court, the appointment of a guardian ad litem to represent the interests of the minor is not required. In re Gonzalez, Tex.Civ.App., 328 S.W.2d 475. This conclusion, which was reached without discussing Rule 173, T.R.C.P., is based on the fact that Art. 2338-1 contains no language requiring the appointment of a guardian. However, it must be noted that the statute contains no language dispensing with the necessity for such appointment. Nor does the Gonzalez decision stand for the proposition that, in the absence of the parents or of some adult appearing to protect the interests of the child, the court could proceed without the appointment of a guardian ad litem. To hold that a child who stands before a juvenile court alone is not entitled to the protection of Rule 173 would be to say that the statute deprives him of a valuable right in exchange for a promise of treatment or education rather than punishment. See Glucek, Some “Unfinished Business” in the Management of Juvenile Delinquents, 15 Syracuse L.Rev. 628-40 (1964).

Sec. 9 of Art. 2338-1 requires the personal service of summons on the parent, guardian or person having custody of the child. Certainly, the reason for this requirement is that the person served is expected to participate in the proceedings in some meaningful way. Paulsen, Juvenile Courts, Family Courts and the Poor Man, 54 Calif.L.Rev. 694, 704 (1966). The holding in Gonzalez must be limited to cases where the parents or guardian are present, and this holding can only be based on the notion that the presence of such persons will afford the child the same degree of protection as would result from the appointment of a guardian ad litem. This assumption can be valid only if the parents, who were present in this case, have the same rights and obligations as those extended to and imposed on guardians. Under Article 2276, Vernon’s Ann.Civ.St. (1964), a guardian ad litem appointed to represent a minor in a civil proceeding may appeal without filing an appeal bond. King v. Payne, 156 Tex. 105, 292 S.W.2d 331 (1956). Unless this same right is afforded to the parents of a minor in a proceeding under Article 2338-1, the assumption which forms the only basis for the Gonzalez decision is false, and we must be prepared to hold that Article 2338-1, which bristles with language expressing tender solicitude for the minor, has the effect of depriving him of a right which would be his if he were being sued for damages resulting from the very act which has brought him to the attention of the juvenile court in a proceeding which may result in his “detention” in a “school” for a period which may extend until his 21st birthday.

We hold that relators have the right, on behalf of the minor, to appeal from the judgment of the Juvenile Court of Bexar County to this Court without filing an appeal bond. Cf. In re Brown, 201 S.W.2d 844 (Tex.Civ.App., 1947, writ ref’d n. r. e.).

The application for writ of mandamus, insofar as the District Clerk and the court reporter are concerned, is granted. Elton R. Cude, District Clerk of Bexar County, Texas, is hereby ordered to prepare a transcript, as requested, on behalf of the minor Martine Lee, Jr., in this case, without charging therefor. Harriet Tringle, court reporter for the District Court, 150th Judicial District of Bexar County, is hereby ordered to prepare a statement of facts, as requested, on behalf of said minor, Martine Lee, Jr., without charge therefor. There being no reason to believe that said District Clerk and court reporter will refuse to comply with the orders of this Court, it is directed that the writ of mandamus not issue and be served upon them, unless they refuse to comply with this order.

We know of no action which the Honorable James A. McKay, Judge of the District Court, 150th Judicial District of Bexar County, Texas, need perform in connection with the preparation of the transcript and statement of facts. Therefore, the application for writ of mandamus, insofar as the respondent Honorable James A. McKay is concerned, is denied.

      . “Courts have held this proceeding to be a civil, and not a criminal, proceeding having as its purpose to protect the dependent or delinquent child at the most critical time of his life, and is not intended to convict and punish juveniles, but to guide and direct them. The judicial or legal concept here, therefore, is a matter of civil construction, rather than the concept or rules governing crimes and criminal trials.” In re Gonzalez, 328 S.W.2d 475, 477 (Tex.Civ.App., 1959, writ ref’d n.r.e.) Courts have permitted legislatures to classify juvenile proceedings as “civil” rather than “criminal” because the objectives of the court were rehabilitative and protective, designed to educate rather than to punish. Paulsen, Kent v. United States: The Constitutional Context of Juvenile Cases, 1966 Sup.Ct.Rev. 167, 168. The following language from the opinion of Mr. Justice Portas in Kent v. United States, 383 U.S. 541, 555-556, 86 S.Ct. 1045, 1054, 16 L.Ed.2d 84 (1966), has caused some concern among supporters of present procedures in juvenile courts: “While there Can be no doubt of the original laudable purpose of juvenile courts, studies and critiques in recent years raise serious questions as to whether actual performance measures well enough against theoretical purpose to make tolerable the immunity of the process from the reach of constitutional guaranties applicable to adults. There is much evidence that some juvenile courts * * ⅜ ]ack the personnel, facilities and techniques to perform adequately as representatives of the State in a parens pa-triae capacity, at least with respect to children charged with law violation. There is evidence, in fact, that there may be grounds for concern that the child receives the worst of both worlds: that he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.”


author: COLLINGS, Justice.

text:
    BANCO LONGORIA, S. A., Appellant, v. EL PASO NATIONAL BANK, Appellee.
    No. 4124.
    Court of Civil Appeals of Texas. Eastland.
    April 14, 1967.
    Rehearing Denied May 5, 1967.

      Potash, Cameron, Bernat & Studdard, Don Studdard, El Paso, for appellant.
    Hardie, Grambling, Sims & Galatzan, Thornton Hardie, El Paso, for appellee.
   COLLINGS, Justice.

Banco Longoria, S. A., brought suit against El Paso National Bank to recover funds deducted from plaintiff’s bank account to pay for an insufficient fund check drawn by Ganado y Carnes, S. de R. L. on its Chihuahua branch. The defendant contends that payment of the check had been protected in a telephone conversation between officers of the two banks and that there was an equitable assignment to the El Paso bank of funds in the amount of $10,000.00 represented by a check drawn by Phil Stadtler & Son. The case was tried before the court without a jury and judgment rendered decreeing that plaintiff take nothing. Banco Longoria, S. A., has appealed.

The record shows that on or about February 2,1965, Enrique Romay and Gene Sykes, officers of Ganado y Carnes, presented to Mr. Rutledge, an officer of the El Paso National Bank in El Paso, and attempted to cash the check of Phil Stadtler & Son in the sum of $10,796.45 dated February 1, 1965, and signed by Phil Stadtler, Jr. The check was payable to Ganado y Carnes, S. de R. L., and drawn on Wells-Fargo Bank of Modesto, California. Mr. Rutledge refused to cash the check. Romay then told Mr. Rutledge that he could get immediate credit on the check at a bank in Chihuahua, Mexico and that when he had done so he would come back to El Paso and open an account in the El Paso National Bank out of the account opened on said check in the Chihuahua bank. Rutledge suggested that if such immediate credit was obtained in the Chihuahua bank that Romay should bring a certified check from that bank for deposit in the El Paso bank. On that same day Romay went to Chihuahua, contacted Mr, Laguette, manager of appellant Banco Longoria, and opened an account in that bank in the name of Ganado y Carnes, S. de R. L., with a deposit of the $10,796.45 Stadt-ler check. This check was subsequently honored and paid by the bank in California.

Enrique Romay testified in substance that at the time he opened the account in the Chihuahua bank Mr. Laguette called Wells-Fargo Bank in Modesto in his presence and then gave immediate credit on the Stadtler check, gave him a deposit slip and took his signature card on the account of Ganado y Carnes. Romay testified that he told Mr. Laguette that he would deposit a check on that account for $10,000.00 in the El Paso National Bank; that Mr. Laguette told him that he would guarantee payment of that check to the El Paso National Bank. Romay further testified that he drew the check for $10,000.00 and sent it to his associate, Gene Sykes, in El Paso to be deposited in the El Paso bank. The $10,-000.00 check in question with endorsements thereon was introduced in evidence. It was not a certified check. Romay testified that he heard Mr. Laguette guarantee the $10,000.00 check to Mr. Rutledge on the telephone. He stated that he told Mr. Laguette he needed the check guaranteed because he had to pay duties on cattle. He further stated that he paid Banco Longoria through checks on his personal accounts and the account of Ganado y Carnes in that bank all the money he owed Banco Longoria, including what he owed on drafts for $17,500.00, $7,000.00 and $5,-000.00, except $10,000.00 check on the Gana-do y Carnes’ account. Ganado y Carnes drew out of its account in El Paso National Bank on February 4, 1965, $8,000.00 to pay duties on cattle.

There was a conflict in the evidence. Mr. Laguette testified that at the time the deposit of the Stadtler check was made in his bank no special instructions were given to him by Romay concerning the deposit; that the deposit was not for any specific purposes and there was no mention at that time that Romay would draw a check for $10,000.00 to start a new account in the El Paso National Bank. He testified that Mr. Rutledge called him about the matter and that he told Rutledge that he could not protect or guarantee the check because Ganado y Carnes had merely left some checks for collection. He stated that the $10,000.00 check in question was received in Chihuahua on February 11th and was returned with the notation made by him as follows: “drawn against uncollected funds.” He stated that he did not know at that time that the Stadtler check had been paid.

Mr. Rutledge testified in substance that he first saw the Phil Stadtler check on the 1st or 2nd of February, 1965; that Mr. Romay and Mr. Sykes wanted to deposit the check in the El Paso National Bank for immediate credit so they could pay for some cattle. He testified that when he refused to give immediate credit on the Stadtler check Mr. Romay said he would fly to Chihuahua and get immediate credit on the check at Banco Longoria or Banco Provincial, and that he Rutledge, informed them to bring a certified check and that he would then open the account in El Paso National Bank and take care of transferring the money for the cattle. Mr. Rutledge further testified that on February 3, 1965, Mr. Sykes brought him the $10,-000.00 check in question which was not certified; that he told Mr. Sykes that certified funds would be required; that Mr. Sykes told him that he could call Mr. Laguette about the matter; that he then called Mr. Laguette by telephone and Mr. Laguette assured him that the account had been opened in Banco Longoria with an immediate credit on the Stadtler check and that he would protect the $10,000.00 check if the signature was good; that Laguette later in the day called back and said he was giving Romay immediate credit on the Stadtler check because he had called Wells-Fargo Bank in Modesto and had been informed that he could get immediate credit because the check was good, that the signature on the $10,000.00 check had been verified and that he would honor the check. Mr. Rutledge testified that he took this as an assignment of funds on the deposit of the Stadtler check. He further testified that the Stadtler check was paid by the drawee bank in California on February 8, 1965, as shown by the stamp thereon; that appellee advised Banco Longoria on the 8th and on the 10th of February of such payment; the deposit slip for $10,000.00 in El Paso National Bank was introduced in evidence; this deposit was made after hours on February 3rd but went through the bank as of February 4th, 1965; the statement of Ganado y Carnes with El Paso National Bank was also introduced by appellee. Rutledge testified that on February 9, 1965 appellee received from appellant’s Juarez branch credit advisor dated February 8th showing credit to ap-pellee for the $10,000.00 check; that the $10,000.00 check was charged to the account of Banco Longoria in the El Paso National Bank on February 9th out of the Stadtler check. Mr. Rutledge stated that the $10,000.00 check was protected, that the Stadtler. check was paid and that Banco Longoria knew it. In response to the request of appellee the court filed the following findings of fact and conclusions of law:

“FINDINGS OF FACT
A. On or about February 2, 1965, Enrique Romay and Gene Sykes, who were officials of Ganado y Carnes, S. de R.L., presented to the El Paso National Bank a draft in the sum of $10,796.45. This draft was drawn against a bank in Modesto, California, and was payable to Ganado y Carnes, and the El Paso National Bank refused to give immediate available credit on such draft to such Mexican Company.
B. Thereafter, Mr. Romay opened an account with Plaintiff’s Branch Bank in Chihuahua, Mexico, using the draft mentioned in paragraph A. above. This draft was subsequently honored and paid by the drawee bank in California. The Mexican Bank, through its officials, notified the El Paso Bank that they were giving immediate credit to Mr. Romay on the bank draft mentioned in paragraph A. above, and thereafter, Ganado y Carnes drew a check on the account opened with the Chihuahua, Mexico, Bank. This check was presented on or about February 3, 1965, to the El Paso National Bank with the request that the El Paso Bank open an account in favor of the Mexican firm, in the amount of such check, which was $10,-000.00; and that the account with the El Paso National Bank be made immediately available in the amount of said check.
C. Mr. Rutledge, an official of the Defendant Bank, on two occasions was assured by telephone by officials of the Mexican Bank that the $10,000.00 check was good and that the Mexican Bank would ‘protect’ the El Paso National Bank; accordingly, the account was opened in the El Paso National Bank and credit in the amount of $10,000.00 was made immediately available to Ganado y Carnes, the Mexican Firm.
D. Thereafter, on February 8, 1965, the branch of the Mexican Bank in Juarez, Mexico, credited the El Paso National Bank for the $10,000.00 above mentioned, and on February 9, 1965, the account of the Plaintiff Bank with the Defendant Bank was charged with the amount of said check, that is, $10,000.00.
E. The Court further finds that the $10,000.00 check was returned by the Mexican Bank to the Defendant Bank ora February 17, 1965 (Within the time provided by law) with the notation ‘drawn on uncollected funds.’
F. The $10,000.00 check thereafter was on or about February seventeenth returned to the Plaintiff Bank by the Defendant Bank with the understanding that the Mexican Bank would recognize its oral promises mentioned above respecting such check.
G. About March 23, 1965, the $10,000.00' check was once again sent back to the-Defendant Bank by the Mexican Bank as a collection item, to be collected by the Defendant Bank for the account of the Mexican Bank. In the meantime, the Mexican Bank had on two different-occasions agreed to the charge of $10,— 000.00 against it in its account with the El Paso National Bank, made on February ninth on account of said check.. The Court finds as a fact that the Mexican Bank on many occasions recognized that it was the owner of the $10,000.00’ check and that the defendant Bank was holding such check in an effort to collect it for the Mexican Bank.
CONCLUSIONS OF LAW
“The Court concludes as a matter of law that under the facts as found by the-Court in this case, there was an equitable assignment of the funds represented by the Phil Stadtler check. That, therefore, the Defendant, El Paso National Bank, was justified in charging the account of the Plaintiff Bank with the amount of $10,000.00 (the Ganado y Carnes check in question here), and that, accordingly, the Plaintiff should take nothing in its suit against the Defendant Bank.”

Appellant urges points contending that the court erred in holding that a drawee bank who has neither certified a check nor promised to pay the same in writing is liable on the check based on the theory of equitable assignment of funds arising out of a. telephone conversation in which it is contended that the drawee bank made an oral guarantee or promise to protect the check out of funds on deposit and erred in holding that appellant, under the facts found in paragraph F and G of the court’s finding of fact, accepted the charge made against its account in appellee bank on February 9, 1965, because the check remained a negotiable instrument, and in order to accept such charge and become liable therefor appellant must have met the requirements of the uniform negotiable instruments act, and neither by the facts found in the findings of fact or the evidence herein presented did appellant as a matter of law so do.

These points are not well taken. Appellant correctly contends that the mere ■drawing and delivery of a check upon a bank does not constitute an assignment of any part of the funds of the drawer in the bank even though the bank has orally promised to pay the check. Article 5941, Section 132 and Article 5947, Section 189, Vernon’s Ann.Texas Civ.St., provide in effect that a check of itself does not constitute an assignment of any part of the funds of the drawer in the bank; that the bank is not liable to the holder “unless and until it accepts or certifies the check”, and that the acceptance must be in writing and signed by the bank. In this connection see the following cases: Kilgore National Bank v. Moore Bros. Lumber Company, 129 Tex. 92, 102 S.W.2d 200, (Com.Apps.1937); Bradley Grain Company v. Farmers & Merchants National Bank, Tex.Civ.App., 274 S.W.2d 178, (Ref. n. r. e. 1954) ; Huffman v. Farmers’ National Bank of Cross Plains, 10 S.W.2d 753, (Ct.Civ.Apps., 1928, no writ history); First National Bank of Mathis v. Dickson, 59 S.W.2d 179 (Ct.Civ.Apps., 1933, no writ history.).

It is well settled, however, that the parties may agree orally or otherwise that the transaction shall operate as an assignment and where it is shown that it was the intention of the parties that the check was to be paid out of a particular fund there is an equitable assignment of that much of the fund. Hatley v. West Texas National Bank, 284 S.W. 540, (Com.Apps.1926); Slaughter v. First National Bank of Lamesa, 18 S.W.2d 754, (Ct.Civ.Aps., 1929, writ ref.); E. C. Palmer & Company v. First National Bank, 2 S.W.2d 939, (Ct.Civ.Apps., 1928, no writ history) ; Moran Bros., Inc. v. Yinger, Trustee, 10 Cir., 323 F.2d 699. It is held that an “equitable assignment” does not depend upon any particular form of words, but a court of equity constructs the assignment out of the agreement and situation of the parties as shown by either direct or circumstantial evidence. Sorenson v. Dawdy, 196 S.W.2d 687, (Ct.Civ.Apps.1946, no writ history), and cases cited therein.

In the instant case the evidence shows that Romay opened an account in Banco Longoria in the name of Ganado y Carnes by depositing the $10,796.45 Stadtler check and received immediate credit thereon; that the Stadtler check was thereafter honored and paid; that the $10,000.00 check in question drawn on Banco Longoria was given by Ganado and received and credited by El Paso National Bank to the account of Ganado with the representation and statement by Ganado’s representatives that the check would be paid out of Gana-do’s account in Banco Longoria opened with the Stadtler check and out of the proceeds of that check. The evidence further shows that Banco Longoria was advised of this agreement between the El Paso Bank and the representatives of Ganado and agreed to comply therewith and to honor the $10,000.00 check. This was in effect a direction from Ganado to Banco Longoria to make the Stadtler check a special deposit to the extent of $10,000.00. Under this evidence the court did not err in holding that there was an equitable assignment of $10,000.00 of the funds in Ganado’s account represented by the Stadtler check. See Bradley Grain Company v. Farmers and Merchants National Bank, supra. Ban-co Longoria was therefore not entitled to recover and judgment was properly rendered for the El Paso bank.

Appellant’s points are overruled. The judgment is affirmed.