author: NORVELL, Justice.

text:
    Farrie DANCER, Petitioner, v. CITY OF HOUSTON, Respondent.
    No. A-10176.
    Supreme Court of Texas.
    Nov. 25, 1964.

      Tynes & Turk and Paul D. Filer, Jr., Houston, for petitioner.
    R. H. Burks, City Atty., Houston, G. Gordon Whitman and Plomer T. Bouldin, Asst. City Attys., for respondent.
   NORVELL, Justice.

Farrie Dancer recovered a judgment for $1500.00 against the City of Houston in the District Court. The Court of Civil Appeals reversed and rendered judgment that Dancer take nothing. 377 S.W.2d 858. We reverse the judgment of the Court of Civil Appeals and remand the cause to said Court for its consideration of the points of error contained in the brief of the prevailing party therein which are within the exclusive jurisdiction of the Court of Civil Appeals. James P. Hart, “Appellate Jurisdiction of the Supreme Court”, Appellate Procedure in Texas § 20.2.

The following statement is taken from the trial court’s findings of fact and conclusions of law.

Farrie Dancer was convicted of a traffic violation in one of the corporation courts of Houston, Texas. He was fined twenty dollars and upon his failure to pay such sum, he was imprisoned and transferred to the Municipal Prison Farm to work out his fine at the rate of three dollars per day.

On September 26, 1961, Dancer was transported along with fifty other prisoners to the various public parks of the City of Houston for the purpose of cleaning up the debris in such parks caused by Hurricane Carla. Upon arriving at the John T. Mason Park, Dancer, along with the other prisoners, was ordered to leave the City owned bus and proceed with cleaning operations in the park. There was an axe lying in the aisle of the bus and in passing toward the exit, Dancer stepped on this axe and sustained injury to his right foot.

The trial court found that the City was negligent in failing to provide a safe place to store the tools used in the clean-up operations and in failing to properly inspect the aisleway of the bus; that such failures constituted negligence which were proximate causes of Dancer’s injuries. The trial court concluded that the City of Houston was engaged in a proprietary function as distinguished from a governmental function at the time Dancer sustained his injury and accordingly the City was liable to Dancer in damages.

The Court of Civil Appeals held that the City of Houston in transporting prisoners from the penal farm to the public park was acting in a sovereign and governmental capacity and hence was not liable for the damages sustained by Dancer occasioned by negligence.

The appellate court pointed out that no controlling Texas case had been cited or discovered but reasoned by analogy from the cases of Stinnett v. City of Sherman, Tex.Civ.App., 43 S.W. 847, no wr. hist. (1897), and Valdez v. Amaya, Tex.Civ.App., 327 S.W.2d 708, no wr. hist. (1959) that the activity in which the City was engaged when Dancer was injured was governmental in nature. In Stinnett, it appears that the plaintiff was injured by a fellow prisoner, said to be demented, while incarcerated in the city jail. See also, Strickland v. City of Odessa, Tex.Civ.App., 268 S.W.2d 722, no wr. hist. (1954), a similar case. In Valdez it was held that the City of San Diego could not be held liable under the doctrine of respondeat superior for the alleged negligence of its City Marshal in failing to furnish a prisoner with immediate emergency medical treatment at the time he was placed in the city jail. In none of these cases was a prisoner being used to do manual labor in connection with the maintaining of a public park and this circumstance was recognized by the Court of Civil Appeals. Under the decisions of this state, the establishment and maintenance of a public park is a municipal proprietary function. City of Waco v. Branch, 117 Tex. 394, 5 S.W.2d 498 (1928); City of Fort Worth v. Wiggins, Tex.Com.App., 5 S.W.2d 761 (1928); Scroggins v. City of Harlingen, 131 Tex. 237, 112 S.W.2d 1035, 114 S.W.2d 853 (1938); Claitor v. City of Comanche, Tex.Civ.App., 271 S.W.2d 465, no wr. hist. (1954).

In Hillman v. City of Anniston, 214 Ala. 522, 108 So. 539, 46 A.L.R. 89 (1926), the-Supreme Court of Alabama in a four to-three decision recognized an exception to> the rule of nonliability for injuries to prisoners when it appeared that the City was. using the prisoner in furtherance of a proprietary function. W. A. Hillman, a prisoner, suffered injuries from which he died while he was engaged in repairing the City’s, streets. The majority of the Alabama court held that the complaint stated a cause of action against the City for wrongful death, despite the contention that the City at the-time Hillman’s death occurred was exercising a governmental function, “in work--ing convicts repairing a street or public highway in said city.”

The issue drawn in the Hillman case is. similar to that involved here and for that reason we quote from both the majority and' minority opinions.

The majority stated that:

“The doctrine of immunity in favor of municipal corporations is grounded in public policy. Mr. McQuillan, § • 2642, speaks of the injustice of the rule-announced as to prisoners in jails and workhouses. We are not inclined to. extend it. We can see no basis of justice for holding the municipality liable • for the acts of its agents engaged in the - construction or operation of public-works, or other corporate function, at the suit of a third person free to avoid danger, or an employee who voluntarily engages in the service and deny the same protection to one put to involuntary labor under like conditions.
“We therefore hold that, where the prisoner is sentenced to work upon an •enterprise defined by our law as corporate in character, the municipality is liable for injury or death proximately resulting from the wrongful act of its agent in the course of such employment; that, if injury results from the negligence or wrongful act of the superintendent of the work, and the prisoner’s employment therein, the municipality is not exempt because such corporate agent was also a police officer having custody of the prisoner.”

In the dissent it was said that:

“Had plaintiff’s intestate met his •death by the wrongful act of the guard while in prison or being guarded at a workhouse, confessedly, under all the decisions, the rule of nonliability of the •city would apply. The mere fact, therefore, that he was being worked on the •streets, rather than at a workhouse or elsewhere, as a penalty for the offense, was a mere incident, and cannot be of controlling influence here. The mere incident of the place of work should not be made to operate a destruction of the well-recognized rule of nonliability in cases of this character.”

In 1936, the Supreme Court of Florida followed the decision of the Alabama court in Hillman v. Anniston. In Ballard v. City of Tampa, 124 Fla. 457, 168 So. 654 (1936), the Florida court, while recognizing that the weight of authority at that time was to the contrary, stated that “we are disposed to take our stand with the Supreme Court of Alabama on this question, even though it was a four to three decision.”

While it appears from the reports of the Hillman and Ballard cases that the prisoners involved in both cases were assaulted by guards who were in charge of the prisoners while they were working upon the public streets, it was not shown that such assaults resulted from escape attempts or some action taken by the guards to preserve and control custody of the prisoners. Both cases involved the legal sufficiency of petitions or complaints and, as could be expected, there were no facts alleged which could justify the assaults complained of.

The case of Reierson v. City of Minneapolis, 264 Minn. 153, 118 N.W.2d 223 (1962) is more in point upon the facts than either Hillman or Ballard in that negligence rather than an assault by a guard was involved. It was contended that the City of Minneapolis breached a duty it owed to a workman who was a municipal prisoner in that it failed to properly instruct the prisoner as to the use of a machine called an edger which lacked safety devices or guards of any nature. This edger was part of the equipment in a municipally owned sawmill in which the labor of those convicted of municipal offenses was employed.

The City moved for summary judgment in the case. The trial court overruled the motion, but in accordance with the Minneapolis practice certified the controlling question to the Supreme Court as being important and doubtful. In affirming, the Supreme Court of Minnesota said:

“In making our determination, we should recognize a distinction between the status of the plaintiff as a prisoner and his status as a workman employed in a business enterprise conducted by the municipality. It should readily be conceded that the incarceration of law violators is for the common good; that the maintenance of a workhouse is a governmental function; and that the municipality is not liable for injuries occurring to a prisoner as a result of activities which are reasonably related to the execution of his sentence. On the other hand, it should be admitted that the operation of a sawmill which, produces a manufactured product for sale involves an element of,special.corporate benefit which characterizes it as a proprietary activity. * * * We are therefore of the opinion that, where the municipality undertakes in the operation of its workhouse to use the labor of a prisoner in a competitive business enterprise, it should be held to the same standards of responsibility and required to exercise the same degree of care for the safety of such person as is required of others who engaged in a like private enterprise. We accordingly hold that the complaint states a valid claim for relief and that the order of the trial court should be affirmed.”

In our.opinion the Alabama, Florida and Minnesota cases indicate the rule which should be followed in this case. A sound distinction between the Minnesota case discussed and the one now before us cannot be based upon the circumstance that the operation of a municipal sawmill was involved in one and the maintenance of a public park is involved in the other. Both activities arc clearly proprietary in nature.

In the present case it can be said that the City was exercising both proprietary and governmental functions at the time Dancer was injured. Undoubtedly a guard in maintaining custody and control' over prisoners is exercising a governmental' function. However, one giving direction as; to the activities incident to cleaning up the-debris in the public park is in essence acting as a supervisor or foreman and in a. nongovernmental capacity. There is no intimation here that Dancer was injured as a. result of a city police officer’s exercise of a power designed to maintain custody or control over his person. The transfer of the prisoners to the park and the presence of' the axe in the bus were in furtherance of the design to clear the park of the debris: deposited by the hurricane.

As pointed out by the Court of Civil Appeals there seems to be no decision of this. Court which controls the case now before-us and we must rely upon analogy in arriving at a decision. In the case of San Antonio & Aransas Pass Ry. Co. v. Gonzales, 31 Tex.Civ.App. 321, 72 S.W. 213, wr. ref. (1903) it appears that Gonzales was a member of a convict gang working for the railway company under a contract with the state. He was injured when struck on the head by a bent brake rod which extended over the platform where he was working. Gonzales and the other convicts were under the control of a sergeant in the employ of the State of Texas. This sergeant, however, occupied a dual position in that he was. also employed by the railway company as. an assistant section foreman in working the-gang of convicts. At the time of his injury Gonzales -was engaged in placing a sack of peas, furnished as rations by the-State, upon a flat car of a passing train as. directed by the sergeant in charge. In hold-mg the railway company liable for negligence, the Court said:

“Though a convict may be acting un■der the orders and instructions of an officer placed over him by the state, if while so acting he is injured by the negligence of a railway company, he is entitled to recover from it such damages as flow from the injuries inflicted by such negligence. It was the negligence of the appellant, and not appellee’s ■obedience or disobedience to the order of the sergeant, that caused him to be "knocked down and run over by the wheels of appellant’s train.”

When Dancer was employed by the City to perform labor incidental to the proprietary activities of the City, he occupied much the same position as did Gonzales when his services were contracted for in an ■agreement between the State and the railway company. Actually Dancer was a workman engaged in removing debris and trash from a city park. The fact that he was also a prisoner working out a fine for a traffic violation should not absolve the City from the duty of exercising ordinary care to protect him from injury. The injury which is the basis of this cause arose out of his activities as a workman and not out of the circumstance that' he was a prisoner.

We would affirm the judgment of the trial court except that certain points ■contained in the City’s brief in the Court of Civil Appeals are beyond the jurisdiction ■of this Court. Article 5, §§ 3 and 6, Texas •Constitution, Vernon’s Ann.St.

In our opinion Dancer’s notice of claim filed with the City was in substantial compliance with Section 11 of the City’s Charter. The notice of claim given was not misleading and gave the City full opportunity to investigate the circumstance out of which the claim arose. The evidence was sufficient in law to raise fact issues for the trial judge’s determination. The points asserting that there is no evidence to support the trial court’s finding are without merit. The evidence does not raise the issue of voluntary exposure to risk. We overrule Points of Error Nos. One, Two, Three, Five and Six contained in the City’s brief filed in the Court of Civil Appeals.

Points Nos. Four, Seven and Eight contained in said brief raise fact questions. They assert that the evidence is insufficient to support the trial court’s findings of negligence, proximate cause and damages and that the award of damages is excessive as to amount. Such points are for the Court of Civil Appeals.

The judgment of the Court of Civil Appeals is reversed and the cause remanded to that Court for consideration of said Points Nos. Four, Seven and Eight.

      . The trial court found that at the time Dancer was injured, his fine had actually-been paid to the City by some third person. However, no point or counterpoint based upon this circumstance was contained in the briefs filed in this Court or in the Court of Civil Appeals.

      . In Hargrove v. Town of Cocoa Beach, Fla., 96 So.2d 130, 60 A.L.R.2d 1193 (1957), the Supreme Court of Florida receded from a number of its prior decisions and held that a municipality could be held liable in damages for the action of a police officer in leaving a prisoner in an unguarded jail with the result that he was unprotected against fire and was .suffocated. This case goes far beyond the rule of Hillman v. Anniston and Ballard v. City of Tampa.
      As relating to the repudiation of the -doctrine of governmental immunity for torts, see Molitor v. Kaneland Community Unit Dist. No. 302, 18 Ill.2d 11, 163 N.E.2d 89, 86 A.L.R.2d 469 (1959); Muskopf v. Corning Hospital Dist., 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457 (1961); Williams v. City of Detroit, 364 Mich. 231, 111 N.W.2d 1 (1961); Holytz v. City of Milwaukee, 17 Wis. 2d 26, 115 N.W.2d 618 (1962); Spanel v. Mounds View School Dist., 264 Minn. 279, 118 N.W.2d 795 (1962) and Stone v. Arizona Highway Commission, 93 Ariz. 384, 381 P.2d 107 (1963).


source: Caselaw Access Project

author: McDonald, judge. WOODLEY, Presiding Judge

license: Public Domain

text:
    Pedro Camacho LOPEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 35267.
    Court of Criminal Appeals of Texas.
    Nov. 11, 1964.
    Rehearing Denied Dec. 16, 1964.

      Joseph Chacon, San Antonio, Carlos C. Cadena, San Antonio, for appellant.
    James E. Barlow, Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

Appellant was convicted of the offense of murder and his punishment fixed by the jury at confinement in the state penitentiary for life. On appeal, appellant’s case was affirmed by this Court, Tex.Cr.App., 366 S.W.2d 587. A petition for certiorari was filed with the Supreme Court of the United States on several grounds, including alleged constitutional deprivation of due process because of coercion in the method of obtaining appellant’s confession. An alleged constitutional violation for failure to take the appellant before a magistrate at the time of his arrest was also charged. The Supreme Court of the United States granted certiorari in this cause and vacated the decision of this Court, on June 22, 1964, by a per curiam opinion, remanded the case to this Court for “further proceedings not inconsistent with the opinion of this Court in [No. 62] Jackson v. Denno [378 U.S. 368], 84 S.Ct. 1774 [12 L.Ed.2d 908].” This action was taken in a memorandum decision which appears at 378 U.S. 567, 84 S.Ct.1924, 12 L.Ed.2d 1038.

The case was set for submission, briefs were filed and oral arguments made before this Court. Attorneys for both the appellant and the State have favored us with able briefs and given us the benefit of forceful ■oral arguments.

Appellant’s counsel takes the position that this Court must reverse the judgment of the trial court and remand this cause for a new trial.

It is the position of the State that we •should remand the case to the trial court for a hearing by the trial judge on the admissibility of the confession already considered by the convicting jury.

In order to fully understand the position of the parties and their respective contentions and also the position of this Court, we must now discuss Jackson v. Denno.

Nathaniel Jackson, petitioner, filed a petition against Wilfred Denno, Warden, for the writ of habeas corpus in the Federal District Court of New York asserting that his conviction for murder in the New York courts was invalid because it was founded upon a confession not properly determined to be voluntary. The writ was denied, the Court of Appeals affirmed, and he was ■granted certiorari by the United States Supreme Court to consider fundamental ■questions about the constitutionality of the New York procedure governing the admissibility of a confession alleged to be involuntary, the Supreme Court reversed saying:

“In our view, the New York procedure employed in this case did not afford a reliable determination of the voluntariness of the confession offered in evidence at the trial, did not adequately protect Jackson’s right to be free of a conviction based upon a coerced confession and therefore cannot withstand constitutional attack under the Due Process Clause of the Fourteenth Amendment. We therefore reverse the judgment below denying the writ of habeas corpus.”
“This procedure has a significant impact upon the defendant’s Fourteenth Amendment rights. In jurisdictions following the orthodox rule, under which the judge himself solely and finally determines the voluntariness of the confession, or those following the Massachusetts procedure, under which the jury passes on voluntariness only after the judge has fully and independently resolved the issue against the accused, the judge’s conclusions are clearly evident from the record since he either admits the confession into evidence if it is voluntary or rejects it if involuntary. Moreover, his findings upon disputed issues of fact are expressly stated or may be ascertainable from the record. In contrast, the New York jury returns only a general verdict upon the ultimate question of guilt or innocence. It is impossible to discover whether the jury found the confession voluntary and relied upon it, or involuntary and supposedly ignored it. Nor is there any indication of how the jury resolved disputes in the evidence concerning the critical facts underlying the coercion issue. Indeed, there is nothing to show that these matters were resolved at all, one way or the other.”

The Court then stated:

“Jackson’s trial did not comport with constitutional standards and he is entitled to a determination of the volun-tariness of his confession in the state courts in accordance with valid state procedures.”

The Court went on to say that New York should provide Jackson with an adequate evidentiary hearing productive of reliable results concerning the voluntariness of his confession.

The Court then concluded that “[i]t is both practical and desirable that in cases to be tried hereafter a proper determination of voluntariness be made prior to the admission of the confession to the jury which is adjudicating guilt or innocence.”

The Supreme Court further points out in Jackson v. Denno the distinguishment between the credibility of the confession (which is for the jury) and the admissibility of the confession (which is determined by the judge alone) and refers to the failure of certain opinions to distinguish between the issues of voluntariness and credibility.

We have before us a case on appeal, nothing more or less. We do not have in our procedure any authority to do that which the state asks that we do; that is grant a separate hearing on the evidenti-ary issue of the voluntariness of the confession.

We have no alternative but to grant appellant a new trial.

In new trials arising hereunder and in future trials in this state where there is a fair question of voluntariness of a confession of the defendant, the trial judge shall grant to the defendant the opportunity to object to the use of said confession; shall grant a fair hearing before the Court on the issue of voluntariness, and from all of the evidence and without regard to the truth or falsity of the confession, shall make a clear cut determination of the vol-untariness of the confession, including the resolution of disputed facts upon which the voluntariness issue may depend. Upon request, such hearing shall be held and the court’s ruling made in the absence of the jury. Unless the trial judge is satisfied that the confession was voluntarily made he shall exclude it. If the confession has been found to have been voluntarily made and held admissible by the Court, it is recommended that the trial judge enter an order stating his findings, which order should be filed among the papers of the cause but not exhibited to the jury. Should the defendant testify at such a hearing, the cross-examination of the defendant shall' be limited solely to the facts' surrounding-the voluntariness of the confession, and the defendant shall not be subject to cross-examination except for the limited purpose of facts involving the voluntary nature of his confession, nor shall the defendant be compelled to take the stand upon the trial' of the cause upon its merits because of his-testimony at this hearing.

Only those confessions which the trial judge actually and independently determines from all of the evidence to be voluntary shall be admitted as evidence before-the jury.

After a confession has been admitted in evidence to the jury, the defendant may still adduce evidence relating to its-, voluntariness, which evidence may be considered by the trial judge with other evidence on the issue of its voluntariness.

If the trial judge concludes from all of the evidence that the confession-should not have been admitted, he will" withdraw it. Otherwise the jury may and' shall, upon request of the defendant, be instructed to the effect that they cannot consider the confession unless they believe beyond a reasonable doubt that it was voluntarily made.

The same procedure may be followed in-cases involving questions raised about the failure to comply with the terms of Article-727 Vernon’s Ann.C.C.P., relating to when a confession though voluntarily made shall' not be used.

We do not find it necessary to here consider the portion of the opinion in Jackson v. Denno relating to the determination or redetermination of the issue as to the vol-untariness of a confession in a separate collateral proceeding, as this is an appeal which this Court is bound to decide upon the record made in the trial court.

The judgment is reversed and the cause is remanded.

WOODLEY, Presiding Judge

(concurring).

The New York rule upheld in Stein v. New York, 346 U.S. 156, 73 S.Ct. 1077, 97 L.Ed. 1522, but condemned in Jackson v. Denno, requires the trial judge to make a preliminary determination regarding a confession offered by the prosecution and exclude it if under no circumstances could it be deemed voluntary. However, under the New York rule, where the evidence presents a fair question as to its voluntariness, as where certain facts bearing on the issue are in dispute or where reasonable men could differ over the inference to be drawn from undisputed facts, the judge “must receive the confession and leave to the jury, under proper instructions the ultimate determination of its voluntary character and also its truthfulness.” If an issue of coercion is presented, the judge may not resolve conflicting evidence or arrive at his independent appraisal of the voluntariness of the confession one way or the other. These matters he must leave to the jury.

The Texas procedure followed in appellant’s trial is similar to the New York rule in that the trial judge is not bound to resolve conflicting evidence bearing on the voluntariness of the confession before he admits it in evidence to the jury. It follows that the Texas rule does not meet the test adopted by the Supreme Court in Jackson v. Denno.

In Jackson v. Denno the Supreme Court requires a procedure “fully adequate to insure a reliable and clear cut determination of the voluntariness of the confession, including the resolution of disputed facts upon which' the voluntariness issue may depend.” The state is left free to say whether the issue of voluntariness is to be resolved by the trial judge or another judge, or by another' jury (but not the convicting jury). This would include the orthodox or common law rule under which the trial judge himself solely and finally determines the voluntariness of the confession.

This Court has not been granted rule making power. The procedure suggested in the majority opinion is deemed adequate to meet the test laid down by the Supreme Court without otherwise disturbing the practice in this state regarding the submission of disputed fact issues to the jury.


author: McDonald, judge.

text:
    Stafford James HARRIS, Appellant, v. The STATE of Texas, Appellee.
    No. 35654.
    Court of Criminal Appeals of Texas.
    Nov. 11, 1964.
    James McGrath, Beaumont, Marian S. Rosen, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

Appellant was convicted of the offense of murder and his punishment fixed by the jury at ten years confinement in the state penitentiary. On appeal, appellant’s case was affirmed by this Court, Tex.Cr.App., 370 S.W.2d 886. A petition for certiorari was filed with the Supreme Court of the United States raising the constitutional question that the admission in evidence of appellant’s confession did not satisfy the requirements of the federal standard and should not have been admissible in evidence. The Supreme Court of the United States granted certiorari in this cause and vacated the decision of this Court, on June 22, 1964, by a per curiam opinion, 378 U.S. 572, 84 S.Ct. 1930, 12 L.Ed.2d 1040, remanded the case to this Court for “further proceedings not inconsistent with the opinion of this Court in [No. 62], Jackson v. Denno [378 U.S. 368], 84 S.Ct. 1774 [12 L.Ed.2d 908].” This action was taken in a memorandum decision which appears at 378 U.S. 572, 84 S.Ct. 1930, 12 L.Ed.2d 1040.

The case was set for submission upon brief and oral argument before this Court. We have been favored with able briefs and given the benefit of forceful oral arguments by the attorneys for both the appellant and the state.

Our disposition of this case is controlled by our decision this day handed down in Lopez v. State, 384 S.W.2d 345. We adopt herein the opinion in Lopez, supra, for our opinion in this case.

The judgment is reversed and the cause is remanded.


author: BELCHER, Commissioner.

text:
    Lee Roy PANNELL, Appellant, v. The STATE of Texas, Appellee.
    No. 37282.
    Court of Criminal Appeals of Texas.
    Dec. 2, 1964.
    Les Procter, Austin, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for the unlawful possession of unstamped cigarettes; the punishment, two years in the penitentiary and a fine of $4,000.

Appellant challenges the sufficiency of the indictment.

The conviction rests upon the second count in the indictment which alleges that the appellant:

“ * * * did then and there unlawfully have in his possession for the purpose of transportation and distribution packages of cigarettes in quantities of more than 10,000 cigarettes without having affixed to each individual package of cigarettes the proper stamp evidencing the payment of the cigarette tax for the State of Texas and without having obtained from the Treasurer of the State of Texas the requisite number of stamps necessary to stamp such packages of cigarettes, the said Lee Roy Pannell (appellant) not then and there being a distributing agent, bonded distributor or common carrier.”

Art. 7.37(j) of Title 122A, Ch. 7, Volume 20A, R.C.S. provides as follows:

“ * * . * [Wjhoever shall possess in violation of any provision of this Chapter, cigarettes upon which a tax is required to be paid in quantities of ten thousand (10,000) or more cigarettes * * * shall be guilty of a felony and shall be punished by confinement in the State Penitentiary for not more than two (2) years or by confinement in the County Jail for not less than one (1) month nor more than six (6) months, or by a fine of not less than One Hundred Dollars ($100) nor more than Five Thousand Dollars ($5,000) or by both such fine and imprisonment.”

The statutory provision relied upon makes unlawful only the possession of cigarettes upon which a tax is required to be paid in quantities of ten thousand (10,000) or more cigarettes.

None of the three counts in the indictment allege that the appellant possessed “cigarettes upon which a tax is required to be paid.”

The indictment fails to comply with the requirements of the statute by alleging that the cigarettes which appellant possessed were cigarettes “upon which a tax is required to be paid.” It is apparent from the statute that such allegation is an essential element of the offense. Therefore, it must be averred in the indictment. Branch 2nd, 495, Sec. 513; Calcoat v. State, 37 Tex.Cr.R. 245, 39 S.W. 364; McNelly v. State, 142 Tex.Cr.R. 344, 152 S.W.2d 771.

The indictment being fatally defective as pointed out, the judgment is reversed and the prosecution ordered dismissed.

Opinion approved by the Court.


author: MORRISON, Judge. WOODLEY, Presiding Judge.

text:
    Ex parte Calvin SELLARS.
    No. 37455.
    Court of Criminal Appeals of Texas.
    Nov. 18, 1964.
    On Motion for Rehearing Dec. 10, 1964.
    Josephine Clements, Houston, Calvin Sellars, pro se (on motion), for appellant.

      Frank Briscoe, Dist. Atty., Carl E. F. Dally, Asst. Dist. Atty., Houston, and León B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

A hearing was had before the Honorable Arnold H. Krichamer, Judge of the Criminal District Court #4 of Harris County on the question of the legality of relator’s restraint at the conclusion of which the court denied the writ. The record of such hearing has been forwarded to this Court, and we will treat it as an original application for writ of habeas corpus under Article 119, Vernon’s Ann.C.C.P.

At the hearing the respondent offered among other things a duly authenticated parole granted relator dated August 27, 1962, a revocation of such parole signed by the Governor and dated March 25, 1964, a carbon copy of an indictment charging relator and others with robbery by firearms alleged to have occurred on March 11, 1964, and an order of the court dismissing said indictment because of want of form, which order recites that another indictment against relator and the others charging the same offense has been returned by the Harris County Grand Jury. The Sheriff’s return reveals that he is holding relator to answer this new indictment.

Relator is in no position to question the failure of the Board of Pardons and Paroles to hold a hearing on the question of revocation of his parole. Ex Parte Lewis, 170 Tex.Cr.R. 254, 339 S.W.2d 900. By the same token he is in no position to contend that he is entitled to credit for the time spent on parole. His parole signed by the Governor expressly recited that time served while on parole should be forfeited in case of revocation. Section 8, Article 781d, V.A.C.C.P.

Since relator’s parole has been revoked, the question of bail is not before this Court.

The relief prayed for is denied.

WOODLEY, Presiding Judge.

On Relator’s Motion for Rehearing

Relator has presented to this Court a “Motion for leave to file for original Writ of Habeas Corpus,” in which he again contends that he is entitled to credit for time spent on parole which was revoked without hearing. It was filed as a motion for rehearing.

Relator has since requested that the document be withdrawn and not considered as a motion for rehearing and that it was not intended as such.

Relator’s motion to withdraw the document is granted and mandate will issue.


author: PHILLIPS, Justice.

text:
    James O. GERST, Savings and Loan Commissioner of the State of Texas, et al., Appellants, v. AMERICAN SAVINGS AND LOAN ASSOCIATION OF HOUSTON, Appellee.
    No. 11259.
    Court of Civil Appeals of Texas. Austin.
    Nov. 18, 1964.
    Rehearing Denied Dec. 9, 1964.

      ■ Waggoner Carr, Atty. Gen., Joe R. Long, Asst. Atty. Gen., Black & Stayton, Austin, for appellants.
    Clark, Thomas, Harris, Denius & Winters, Conrad Werkenthin, Mary Joe Carroll, Austin, Fred Abbey, Houston, for appellee.
   PHILLIPS, Justice.

American Savings and Loan Association of Houston, hereinafter called appellee, brought suit in the trial court seeking to overturn an order of the Savings and Loan Commissioner denying appellee’s application to establish a branch office at 410 Main Street in the northern portion of the central business district of Houston.

Houston First Savings Association, Home Savings and Loan Association and Benjamin Franklin Savings Association intervened and aligned themselves with the Savings and Loan Commissioner in an attempt to sustain the order. All of these parties, unless names individually, will hereinafter be designated as appellants.

After trial, the District Court entered judgment setting aside the Commissioner’s order and issued a writ of mandamus directing and commanding the Commissioner to grant appellee’s application for the branch. The State and the intervenors have appealed the judgment to this Court.

We affirm the judgment of the trial court.

Appellee’s application for the branch here under consideration was filed prior to the effective date of the present Savings and Loan Act, and is therefore controlled by Art. 881a-2, Vernon’s Ann.Civ.St., the previous statute, the pertinent part being as follows:

“ * * * whether the public convenience and advantage will be promoted by-allowing such proposed building and loan association to be incorporated and engaged in business, and whether the population in the neighborhood of such place and in the surrounding country affords a reasonable promise of adequate support for the proposed building and loan association.”

After a hearing, the Commissioner denied the appellee’s application for the branch by an order containing the following language:

“The applying association has adequate reserves and surplus to warrant the additional places of business; the applying association has operated its principal office for at least three (3) years successfully, profitably, properly and in accordance with law, but the proposed operation of the additional office will impair the applying association’s ability to carry on its overall operation; the public convenience and advantage in the neighborhood proposed to be served and in the surrounding country will not be promoted by allowing the proposed additional office to be established and engage in business at the proposed location, the volume of business there is not such as to indicate that a profitable operation is probable within a reasonable period of time, and the public within such area is being adequately served; the proposed operation will unduly injure other associations operating in the neighborhood of the proposed location and the surrounding county; and a separately enclosed office area within which no activity or business except that which is related to the' affairs or services of the association is proposed.”

Appellant intervenors are existing associations with their main offices in downtown Houston.

Appellants are before this Court on four points of error. The first three briefed together are that appellee failed to prove that there is no substantial evidence supporting the Commissioner’s finding that the volume of business in the proposed location is not such as to indicate a profitable operation-within a reasonable period of time; that the public convenience and advantage in the neighborhood proposed to be served and in the surrounding country will not be promoted by the proposed office; and that the public in the area is being adequately served. Appellants’ fourth point of error is that ap-pellee failed to prove that there is no substantial evidence supporting the Commissioner’s finding that the proposed operation will unduly injure other associations operating in the neighborhood of the proposed location and the surrounding country.

The facts of this case and the law applicable thereto bring it within the Supreme Court’s decision in Gibraltar Savings & Loan Association v. Falkner, 371 S.W.2d 548. In Gibraltar the Court affirmed the judgment of the trial court reversing an order of the Commissioner that denied a savings and loan branch to the applicant therein. The Court said:

“This appeal is governed by the substantial evidence rule. First: the order of the Commission is presumed to be a legal and valid order. Second: the burden is on the one appealing from the Commissioner’s order to show that the order appealed from is not reasonably supported by substantial evidence, existing at the time of the entry of the order by the Commissioner. This showing must be made at the trial court hearing. This may be done by a showing that all of the evidence available to the Commissioner, and given in the trial court on appeal, so conclusively demands an affirmative finding on all requirements that a negative finding on any requirement can have no support in substantial evidence; therefore negative findings are arbitrary.” Citing cases. (Emphasis added.)

The rules of the Building and Loan Section of the Finance Commission and Banking Commission which were the basis for the Commission’s ruling in Gibraltar are similar to the provisions of Art. 881a-2 which govern the case at bar.

From the evidence before this Court as adduced in the trial court, we find that ap-pellee has, in outline, presented the following case: (a) Appellee began operation in 1960 with $312,500 capital and has grown in less than four years to over $15,000,000 in total assets with approximately $600,000 in capital, surplus and reserves; (b) that ap-pellee’s principal field of service is in the field of loans under $10,000 made in a large proportion to Negroes and Latin Americans; (c) that there is a need for the branch office in the area requested due to proximity and access to the class sought to be served and that due to such proximity and access a successful operation can reasonably be anticipated; that the group or class sought to be served are of a sufficient number to insure a profitable operation; (d) that the greater percentage of inter-venors’ business, the nearest competitors of the proposed branch, is in the field of loans of above $10,000.

In attempting to present substantial evidence to uphold the Commission’s order, the State and intervenor appellants relied on (a) cross examination of appellee’s witnesses in an attempt to discredit their testimony; (b) one witness, the secretary of one of the appellant intervenors.

Appellee’s president, Mr. Ralph B. Lee, in addition to his testimony concerning the growth of his company as outlined above, stated that he had, in the past, organized two savings and loan companies, a mortgage company and a bank and trust company. Lee stated that in the course of this financial career, he learned that a profitable savings and loan business could be built from loans made to the lower income groups and that he had sought to project his association’s endeavors into this field and had done so with considerable success. Numerous exhibits were presented by competent witnesses outlining the district sought to be served as the northwest quadrant of the city of Houston. That the proposed branch office itself at 410 Main Street would be the only .savings and loan institution in the downtown area bordered by Texas Avenue on the South and Buffalo Bayou on the north. That this downtown area was served by five transit companies which funnelled the class of persons sought to be served by or near the proposed location. That access and location were of paramount importance to the success of such branch.

In addition to attempting to show that the proposed branch office would be ideally located for access to the entire northwest quadrant of the city of Houston, appellee pointed out that in the downtown area surrounding the proposed branch itself were the following: Two office buildings, two hotel facilities, office of the T. J. Bettes Co. characterized as the largest mortgage lending firm in the country, numerous small stores and proprietorships conducting business in the area, the Harris County Courthouse complex, the Houston National Bank and Citizens State Bank, five bus routes serving the quadrant in question, extensive parking space recently added to the area, the civic center being built immediately west of the area, a six million dollar performing arts center to be built adjacent to the south portion of the area.

In addition, competent testimony was presented by appellee that the proj ectcd population for Harris County by 1980 could reasonably be expected to be 2,480,000; that 83,000 new home units would be built between now and 1980 in that quadrant of the city appellee is seeking to serve.

After having presented credible testimony that it sought to serve a certain class or group desiring loans of $10,000 or under, that the geographic area in question (consisting of the downtown area in which the proposed branch is to be located and the northeast quadrant of the city) has a sufficiency of 'this class or group to insure a successful operation, appellee presented evidence that while 78% or 80% of its loans were under $10,000, loans of $10,000 or less 'made by appellant intervenors were 11%, 8%, 7% of their total volume. Appellant offered testimony that by specializing in smaller loans it was able to charge interest in the neighborhood of 7% which is higher than that generally received for the appellant intervenors’ loans of larger amounts.

Appellants offered no evidence that the establishment of the proposed branch would injure appellant intervenors in any manner whatsoever.

As stated above, appellants’ evidence consisted of cross examination of appellee’s witnesses and one witness. Through cross examination appellants sought to show that there are either four or five savings and loan company branches serving the northeast quadrant of the city. No detail concerning their size, location or type of loans made is in the record. That the business district between Texas Avenue and Buffalo Bayou is a depressed area and does not have a sufficient number of the group sought to be served to insure a profitable business. That the group or class sought to be served in the northeast quadrant of the city having been transported into the area in question could not tarry long enough between transfers to do business at the proposed branch or they could ride the bus across Texas Avenue and do business with intervenors.

Appellants’ witness was Mrs. Mary A. Grigsby, Secretary of Houston First Savings and Loan, an intervenor in this case. Mrs. Grigsby testified that of the 6,536 home loans on the company’s books, 3,970 were loans of under $10,000 and that this is 60% of their entire loans. On cross examination of this witness it was developed that a large portion of these loans were purchased from the Veteran’s Administration in a block and were not made by inter-venor to individuals in the area. Mrs. Grigsby also testified that she did not believe that the type or group of people generally disembarking from busses in the downtown area proposed to be served were generally of the type to make loans with savings and loan companies; that if they did so desire, Houston First would be happy . to serve them. That ■ Kress, Grant’s and Penny’s stores which cater to the lower income groups are near Houston First.

It would serve no good purpose to unduly prolong this opinion with the answers given appellants’ attorneys’ questions on cross examination. Appellee’s case was not shaken to any appreciable degree. These questions, at best, may have planted some doubt as to certain facets of appellee’s testimony and in creating some doubt could be classed as some evidence; however, some evidence is not substantial evidence. See Board of Firemen’s Relief & Retirement Fund Trustee of Houston v. Marks, 150 Tex. 433, 242 S.W.2d 181, 27 A.L.R.2d 965.

Likewise, Mrs. Grigsby’s testimony was some evidence as to the operation of one of several intervenors in a city that presently has an overall population of one million and her opinion as to whether the class of persons appellee seeks to serve will make potential savings and loan customers is some evidence; however, it is not substantial evidence. It is interesting to note that the testimony discloses that intervenor Houston First Savings has increased its total assets from $64,500,000 in 1961 to $109,500,000 in 1963. Mrs. Grigsby did not testify that if appellee was allowed to open the proposed branch Houston First would be unduly injured. We adopt the following quotation from Gibraltar “ * * * all of the evidence available to the Commissioner, and given in the trial court on appeal, so conclusively demands an affirmative finding on all requirements that a negative finding on any requirement can have no support in substantial evidence.”

Appellants contend that appellee has failed to show that the four or five savings and-loan branches presently located in the northeast quadrant of the city of Houston are not adequately serving this sector. While such evidence is a factor in the application for the establishment of any savings and loan association or branch office thereto, this fact may be inferred from other substantial evidence such as that of appellee outlined above. This is especially true where those attacking the application offer no evidence whatsoever in rebuttal as to the adequacy of service of these particular branches. In other words, the associations who had branch offices in the northeast quadrant of the city are not parties to this suit. Appel-lee’s evidence compels our conclusion that the branch sought will promote the public convenience and advantage in this neighborhood, that the operation will be profitable, that there is a need for the additional service and that the proposed branch will not unduly injure other associations operating in the neighborhood. Where such a case is supported by substantial evidence, specific evidence that other branches in the area are not adequately serving such area may be inferred. Such inference is further strengthened when the evidence indicates phenomenal growth of all associations concerned, whether applicant or protestant, which are located in a city such as Houston whose growth in the past has been equally phenomenal and whose projected growth protends the same.

Applicants argue that in denying this application the Commissioner “ * * * undoubtedly considered the fact that appellee has the privilege under the rules to move its branch as far as a mile south without further permission and to thus do injury not only to existing downtown associations but, by virtue of the unique position of being a suburban association with a downtown branch, to other suburban associations as well.” There is no evidence in the record to support this argument.

Appellee objects to evidence admitted at the trial as to the location and routes of bus lines serving the area in question as being based on pamphlets prepared by parties who did not appear in court and thus hearsay testimony. We overrule this point. There is adequate testimony by a former planning consultant to the city as to bus service in the area and if such pamphlets were hearsay, their admission was harmless.

The judgment of the trial court is affirmed.

Affirmed.

      . Art. 852a, Vernon’s Ann.Civ.St.

      . “When any persons shall file a proposed charter or articles of agreement as is elsewhere herein provided, if it appears to the satisfaction of the Banking Commissioner of Texas that the minimum capital required lias been paid in cash into the treasury of the association upon subscriptions for shares, the Banking Commissioner of Texas shall ascertain from the best sources at his command, and by such investigation as he may deem necessary, the expense of such investigation to be paid by the incorpora-tors, whether the character, responsibility and general fitness of the persons named in the articles of incorporation are such as to command confidence and warrant belief that the business of the proposed building and loan association will be honestly and efficiently conducted in accordance with the intent and purpose of this Act, and whether the public convenience and advantage will be promoted by allowing such proposed building and loan association to be incorporated and engaged in business, and whether the population in the neighborhood of such place and in the surrounding country affords a reasonable promise of adequate support for the proposed building and loan association. If it shall be satisfied concerning the several matters specified, the Banking Commissioner of Texas shall issue under his official seal a cer-tifieate reciting in substance the filing in its office of the artíceles of incorporation; that such articles conform to all requirements of the law, and that they have been approved, whereupon the persons named in the articles of association, their associates and successors, shall become a corporate body for the period for which they were organized, and shall exercise such powers as are herein granted, and such other powers as are necessary to enable such association to carry out the purpose of its organization, non inconsistent with the provisions of this Act, but before such association shall proceed to do business it shall adopt and have approved by the Banking Commissioner of Texas by-laws for the regulation and management of its business, not inconsistent with the provisions herein provided. Acts 1929, 41st Leg., 2nd C.S., p. 100, ch. 61, § 2.”


author: GRISSOM, Chief Justice.

text:
    David KANE, Appellant, v. UNION STATE BANK et al., Appellees.
    No. 3930.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 20, 1964.
    Rehearing Denied Dec. 11, 1964.
    _ Levey & Goldstein, San Antonio, for appellant.
    Clemens, Knight, Weiss & Spencer, Ran-dle Taylor, Richard Tinsman, San Antonio, for appellees.
   GRISSOM, Chief Justice.

Union State Bank sued Bell Construction Company, its partners and David Kane on promissory notes executed by them to the bank. Kane answered that the bank represented it had a “valid” assignment of Bell’s contract with San Antonio but that said assignment was invalid. He alleged the bank was negligent in accepting an invalid assignment and representing to Kane that it was valid; that said representation was material and he relied thereon; that if the bank had not been negligent in accepting an invalid assignment payment would have been made to the bank by San Antonio and Kane would not have had to pay the notes sued upon.

Aetna Insurance Company also sued Kane to recover on an indemnity contract the loss it sustained as a surety on Bell’s bonds. It alleged that Kane and the Bells executed and delivered to it a general contract of indemnity agreeing to indemnify Aetna against all losses it sustained as a surety for Bell.

It was undisputed that Kane executed jointly with the Bells the notes sued upon by the bank. The amount of the unpaid balance was also undisputed. It was undisputed that Kane executed with the Bells the contract of indemnity sued upon by Aetna. The amount of Aetna’s loss as a surety for Bell was also undisputed.

After the close of the evidence Aetna filed a motion for an instructed verdict. It alleged that the evidence conclusively established that Kane executed the general contract of indemnity and Aetna sustained a loss of $54,730.61 as surety for Bell; that there was no competent evidence that the indemnity contract was to be effective only in the event Aetna executed a surety bond for Bell “covering a construction job at Fort Sam Houston,” as alleged by Kane, because such an agreement violated the pa-rol evidence rule and that there was no evidence that such an agreement was authorized by Aetna; that the evidence established as a matter of law that the unambiguous terms of the written general contract of indemnity executed and delivered by Kane to Aetna covered its loss and there was no competent evidence to vary its terms. The bank filed a motion for an instructed verdict alleging there was no evidence of fraud and that all of Kane’s evidence relative to an alleged oral agreement varied the terms and conditions of the unambiguous written promissory notes sued upon, was incompetent, without probative force, and ineffective to change the tenor of the contracts sued upon. It moved to strike all of such testimony. That motion was sustained. The court sustained both motions for instructed verdicts, instructed the jury to render a verdict for the insurance company and the bank, which it did, and rendered judgment accordingly.

In the Bank’s case, Kane requested the court to submit issues inquiring whether (1) the bank represented to Kane that the notes were secured by a valid assignment of Bell’s contract with San Antonio; (2) such representation was material; (3) Kane relied upon it; (4) such representation was intended to induce Kane to execute the notes; (5) the representation was true; (6) the bank represented to Kane that all amounts due Bell by San Antonio would be paid by San Antonio to the bank; (7) the failure of the bank to require the city to make all payments due Bell to the bank was negligence and (8) a proximate cause of non-payment of the notes. In Aetna Insurance Company’s suit, Kane asked the court to submit to the jury whether (9) Kane signed and delivered the contract of indemnity upon the oral condition that it would not be effective unless Aetna executed a particular bond securing a construction project at Fort Sam Houston. The court refused to submit any of said requested issues, sustained the motions for instructed verdicts, rendered judgment for the bank for the unpaid balance of the notes and for Aetna for the amount of its loss as a surety for Bell. Only Kane has appealed.

With reference to the judgment for the bank, Kane’s points are that (1) since he alleged and introduced evidence that the bank represented that the notes were secured by a valid assignment of Bell’s contract with San Antonio; that said assignment was not valid and that said representation was material and relied upon by him, said issues should have been submitted and the court erred in instructing a verdict for the bank; (2) that since Kane alleged and introduced evidence that the bank was negligent in not requiring San Antonio to make payments due Bell to said bank and that such negligence was a proximate cause of the failure to collect the notes, the court erred in failing to submit such issues to the jury.

Pertinent to the judgment for Aetna Insurance Company, Kane’s points are (3) that, since he alleged and introduced evidence that he executed the indemnity contract upon condition that Aetna issue a surety bond “covering a construction job at Fort Sam Houston” and that such a bond was not issued, the court erred in refusing to submit such issues; (4) that, since Kane alleged and introduced evidence that he executed the indemnity contract in consideration of Aetna’s agreement to issue a surety bond “for a construction job at Fort Sam Houston” and that such a bond was not executed, there was failure of consideration and the court erred in failing to submit such issues to the jury.

We shall first consider Kane’s complaint of the judgment in favor of Aetna. Aet-na’s suit against Kane was based upon an unambiguous written general contract of indemnity, executed and delivered by Kane to Aetna, wherein Kane agreed to indemnify Aetna against all losses it sustained as a surety on all bonds it executed for Bell until it was cancelled in accordance with its terms. It was undisputed that Aetna sustained a loss of $54,730.61 as a surety on Bell’s bonds. The general contract of indemnity sued on by Aetna contained the following provisions:

“WHEREAS, certain bonds * * * have heretofore been, and may hereafter be, required by, * * * any one or more of the parties included in the designation Indemnitor (s) * * *, and application has been made and may hereafter be made to the Company to execute such instruments as surety.
“FIRST: That they will at all times indemnify * * * the Company * * against any and all * * * loss * *, which it shall or may at any time sustain or incur by reason or in consequence of its suretyship. * * *
“TWELFTH: Any of the Indemnitor (s) may by written notice to the Home Office of the Company at Hartford, Connecticut, terminate their liability as to bonds, * * * executed by the Company subsequent to ten days after the receipt of such notice by the Company. It being understood and agreed that such notice of termination shall in no way modify, bar or discharge any obligations of the Indem-nitor^) to be performed under this agreement in connection with bonds executed by the Company prior to the effective date of the said notice of termination.”

Immediately above appellant’s signature in bold print there were the following provisions :

“The undersigned Indemnitor(s) fully appreciate that this agreement is intended to cover whatever bonds (whether or not covered by any application signed by any one or more of the Indemnitors * * * such application to be considered between the parties hereto as merely supplementary to this General Contract of Indemnity) may be executed by the Company on behalf of the undersigned Indemnitors, or any one of them, from time to time, and over an indefinite period of years, until this agreement shall be cancelled in accordance with the terms hereof.
“We have read this indemnity agreement carefully. There are no separate agreements or understandings which in any way lessen our obligations as above set forth.”

Kane’s alleged defense was that he executed and delivered to Aetna said indemnity contract upon the oral condition that it was to be effective only in the event Aetna executed a surety bond for Bell “covering a construction job at Fort Sam Houston”; that such a bond was not executed and, therefore, said contract never became effective. Fraud was neither alleged nor proved. Kane introduced evidence tending to support the defense he did allege. However, at the conclusion of the evidence, the court held that such testimony violated the parol evidence rule, instructed the jury to return a verdict for Aetna for its loss, in accordance with the indemnity contract, and rendered judgment accordingly. Said unambiguous written general contract of indemnity, executed and delivered by Kane to Aetna recited that it was intended to cover all bonds executed by Aetna as a surety for Bell until it was cancelled in accordance with its terms. It recited that there were “no separate agreements or understandings which in any way lessen our obligations as above' set forth.” The indemnity contract expressly provided the conditions concerning future bonds under which it would be operative; evidence of an alleged parol agreement that it was to cover only one particular bond is contrary to its provisions. The parol agreement asserted by Kane is contrary to the purpose and intention of the parties as stated in the indemnity contract and directly contrary to the agreement therein that all bonds executed by Aetna as a surety for Bell would be covered until the indemnity contract was cancelled in accordance with its terms. The applicable rule is stated in 23 Tex.Jur.2d 500 as follows :

“As a general rule, in the absence of fraud, accident, or mistake, extrinsic evidence is inadmissible to vary, add to, or contradict the terms of a valid written instrument that on its face is complete and unambiguous. In other words, unless a writing on its face rebuts in some manner the presumption that it is complete, inconsistent extrinsic evidence, either oral or written, is inadmissible to vary or add to the terms of the instrument. For example, if a written contract is complete on its face, and there are no allegations of fraud, accident, or mistake, parol evidence is not admissible to show that the terms and legal effect of the agreement are not in accordance with the prior understanding of the parties. In brief, the extrinsic evidence rule ordinarily requires the exclusion of parol evidence of prior or contemporaneous negotiations, conversations, representations, or statements that would add to or vary the terms of written agreements that are clear on their face.”

Our Supreme Court in Denman v. Hall, 144 Tex. 633, 193 S.W.2d 515, 516, said:

“ * * * the ruie is that parol evidence cannot be received to establish any oral condition relating to the contract if the condition is inconsistent with the terms of the written instrument. 32 C.J.S. Evidence, § 935, p. 859. In other words, ‘An oral condition that is repugnant to the conditions stated in the writing, or is offered in substitution for it, is inadmissible.’ Williston on Contracts, Rev.Ed., Vol. 3, Sec. 634, p. 1825.”

It is apparent that Kane contends the indemnity contract was intended to be effective, but for only one particular construction job, not that there was a conditional delivery or a condition precedent. He simply says that the express provision of the written contract that it was to cover all bonds executed by Aetna for Bell until it was cancelled in accordance with its terms was not the true agreement. This is a clear attempt to violate the parol evidence rule. The written contract and the alleged parol agreement are completely inconsistent and cannot both exist. The written contract of indemnity provided that it was intended to cover all bonds executed by Aetna for Bell until it was cancelled in accordance with its terms. The alleged parol agreement was that it was not to cover all bonds executed by Aetna for Bell until cancelled in accordance with its terms, but that it was intended to cover only Bell’s bond for “a construction job at Fort Sam Houston” and, if that job did not materialize, the indemnity contract would be can-celled. Kane’s pleaded theory of conditional delivery or condition precedent, was refuted by his version of the parol agreement. The asserted parol agreement is contrary to the express terms of the written contract. ' Evidence thereof was prohibited by the parol evidence rule. It could not have supported Kane’s defense, even if admitted without objection and not stricken. Kane’s contention amounts simply to a claim that he is not liable according to the express terms of the instrument sued upon. The court correctly held that the alleged parol agreement was contrary to the express provisions of the written contract and inadmissible. Under -the express terms of the indemnity contract the consideration for its execution was the "execution, from time to time of bonds — under this general contract of indemnity” and pa-rol evidence was inadmissible to vary such recited contractual consideration. Commercial Credit Corporation v. Sorgel, 5 Cir., 274 F.2d 449, 453; Frank L. Smith Tire Store et al. v. Firestone Tire & Rubber Company, Tex.Civ.App, 68 S.W.2d 577 (WR); Earp v. First State Bank of Abilene, Tex.Civ.App, 356 S.W.2d 178 (Ref. n. r. e.); Bowden v. Partners’ Finance, Tex.Civ.App, 278 S.W.2d 866; Bonner Oil Co. v. Gaines, 108 Tex. 232, 191 S.W. 552; Johnson v. Johnson, Tex.Com.App., 14 S.W.2d 805; Navarro Oil Co. v. Cross, 145 Tex. 562, 200 S.W.2d 616; 23 Tex.Jur.2d 551. The judgment in favor of Aetna Insurance Company is affirmed.

Union State Bank’s counterpoints are that Kane’s testimony that he signed the notes as a joint maker with the Bells because the bank assured him there was a "valid” assignment and there would be no personal liability is (1) an attempt to assert a conditional endorsement and, if true, not admissible under the parol evidence rule, and (2) that there is no evidence of active negligence of the bank. The bank says that loss of security resulting from inaction or negligence by the holder of a secured note does not discharge a cosigner from liability to the holder. We sustain the bank’s counterpoints. Kane’s testimony was an attempt to vary the terms of the unambiguous written notes sued upon by parol evidence that his endorsement was to be effective only in the event the assignment was legally valid. The bank’s contention was in effect sustained in Henslee v. First National Bank of Whitewright, Tex.Civ.App, 314 S.W.2d 881 and Dean v. Allied Oil Company, Tex.Civ.App, 261 S.W.2d 900. Fraud was neither alleged nor proved. Kane’s unconditional contract to pay the notes according to their terms cannot be contradicted by evidence of an oral agreement to the contrary. Robertson v. City National Bank, Tex.Com.App., 120 Tex. 226, 36 S.W.2d 481; Pope v. Mergenthaler Linotype Co., Tex.Civ.App, 131 S.W.2d 668 (WR). The court did not err in rendering judgment for the bank.

The judgment is affirmed.


author: CHADICK, Chief Justice.

text:
    P. H. SHIRLEY et ux., Appellants, v. Robert L. DALBY, Appellee. The STATE of Texas, Appellant, v. Robert L. DALBY, Appellee.
    Nos. 7600, 7601.
    Court of Civil Appeals of Texas. Texarkana.
    Sept. 1, 1964.
    Rehearing Denied Sept. 15, 1964.
    On State’s Second Motion for Rehearing Nov. 3, 1964.
    Rehearing Denied Nov. 24, 1964.

      J. R. Hubbard, William B. Roberts, Wheeler, Watkins, Hubbard & Patton, Texarkana, for P. H. Shirley and wife.
    Waggonner Carr, Atty. Gen., T. B. Wright, David R. Thomas, Samuel D. McDaniel, Asst. Attys. Gen., Austin, for the State.
   CHADICK, Chief Justice.

These are appeals from judgments in two¡ ' separate mandamus actions in the same dis-; trict court. The judgment in each case refusing the writ is affirmed.

Causes No. 7600 and No. 7601 followed a parallel course through the District Court and appear to have as a single purpose the procurement of a decision defining the scope and limits of the discovery procedure authorized by Rules 167 and 186a, Vernon’s Rules of Civil Procedure. No order of consolidation was made in the trial court or here, the two cases in a general sense have been treated as one in both courts. P. H„ Shirley and wife, Lelia Mae Shirley, are appellants in Case No. 7600 and the State of Texas is appellant in Case No. 7601.

A suit by the State against the Shirleys to invoke the State’s eminent domain power and condemn 6.275 acres of land to be used for right-of-way purposes in the construction of Interstate Highway No. 30 was pending in the County Court of Bowie County when the Shirleys served the State with a list of interrogatories. The State replied by a motion to be relieved of answering them. A few days later the Shir-leys caused an expert appraisal witness retained by the State to be served with a subpoena and subpoena duces tecum requiring him to appear for deposition and to bring with him certain material he had prepared for his and the State’s use, including copies of all reports he had made to the State relative to the Shirley case. The State moved to quash such subpoenas.

Following a hearing the County Judge of Bowie County, Texas, entered the following order:

“Be it remembered that on the 22nd day of July, 1963, in the above entitled and numbered cause came on to be heard in open court the following motions :
“(A) Plaintiff’s motion that Interrogatories to the State of Texas and Mr. T. B. Wright, Assistant Attorney General, be not answered, or alternatively that this Court rule on each interrogatory individually and make its order'.that certain matters be not inquired into;
“(B) Defendants’ motion for discovery and Plaintiff’s motion that Defendants’ Motion for Discovery be quashed;
“(C) Plaintiff’s motion that the deposition of Wilson K. Bloodworth be not taken or alternatively that such deposition be limited in accord with Rule 186b, Texas Rules of Civil Procedure, and that the subpoena duces tecum commanding Wilson K. Blood-worth to produce certain items set out therein be quashed or alternatively that an appropriate order be issued in accord with Rule 186b as is necessary to protect the rights of Wilson K. Bloodworth and the State of Texas.
“And the Court having heard argument on said matters does hereby order;
“(A) that, the Plaintiff's motion that interrogatories be not answered be sustained to all Defendants’ interrogatories both as originally submitted and as amended on hearing except in the following particulars:
“(1) The State’s motion objecting to Interrogatory. No. 1 is sustained except as to the witness Wilson K. Bloodworth who testified at the Commissioners’ Hearing in this condemnation proceeding. ,
“(2) The State’s motion objecting to Interrogatory No. 9 is sustained except as to reports of the appraiser Wilson K. Bloodworth and the Court hereby will limit the production of any report by Mr. Bloodworth to the State to such reports as he may have submitted to the State at or prior to the date of the hearing before the special commissioners. The State’s motion is sustained as to any report of Mr. Bloodworth since the date of the hearing before the special commissioners.
• “(3) The State’s motion objecting to Interrogatory No. 10 is sustained except as to any charts, maps, photographs, plats or drawings or other graphic representations that may have been presented by the State’s agent L. L. Jester, or the witness, Wilson K. Bloodworth at the hearing before the special commissioners. Interrogatory No. 11 will be answered in accord with the Court’s ruling on No. 10.
“(4) The State’s motion objecting to Interrogatories 14, 15 and 16 is hereby sustained except as to the testimony of the witness Wilson K. Bloodworth as to market value of the part taken or the affect of the taking on the value of the remainder given before the special commissioners at the hearing before such special commissioners.
“(5) The State’s motion objecting to Interrogatory No. 18 is sustained except as to what the witness Wilson K. Bloodworth testified was the highest and best use of the Shirley land before the special commissioners.
“(B) that the Defendants’ motion for discovery be overruled and that the State’s motion to quash Defendants’ said motion for discovery be sustained and same are hereby respectively overruled and sustained,
“(C) that;
“(1) the State’s motion to quash the subpoena ordering Wilson K. Bloodworth to appear for deposition be overruled,
“(2) the deposition of Wilson K. Bloodworth be taken before this Court at. a date in the future to be set by agreement of the parties hereto and this Court,
“(3) the subpoena duces tecum issued herein by Lucille Collins on the 2nd day of July, 1963, directed to Wilson K. Bloodworth be, and it is hereby, quashed except as to paragraphs (i), (j), and (k) which will be allowed only insofar as they relate to materials presented at the special commissioners’ hearing by the said Wilson K. Bloodworth.”

The'items (i), (j), and (k) referred to in the Order are set out in the subpoena duces tecum in the following language, to-wit:

“(i) All records and information reflecting any and all written reports or testimony made before or submitted to the Commissioners in this cause or the State of Texas.
“(j) All charts, maps, photographs, plats, drawings, or other graphic representations upon which he relied and used in arriving at his appraisal in this cause.
“(k) In the event all of the charts, maps, photographs, plats, drawings, or other graphic representations used by the appraiser in making his appraisal in this cause is not in his possession, he shall produce and bring with him all information that he has as to the name, address, telephone number, job title or capacity, and present whereabouts of the person or persons who have present custody of any such photographs or other representations.”

Thereafter the State applied to the Judge of the Fifth District Court of Bowie County for leave to file a petition for writ of mandamus, and on the 12th day of November, 1963, the application was granted. Thereupon a petition was filed praying for a writ of mandamus ordering the County Judge to rescind his Order quoted above. Replying to the petition the Shirleys moved that the State’s petition for the writ be denied. At the conclusion of a hearing in the District Court the trial judge entered an order refusing the writ and assessing the costs of the proceeding against the State. The State excepted to the judgment and has perfected an appeal. The Shirleys applied to the same District Judge- for leave to file a petition for writ of mandamus and .the application was granted on November 12, 1963, the same date the State’s application was allowed. A petition was filed. ’ At the conclusion of the hearing mentioned the Shirleys were refused a writ and costs in the case assessed against them. An appeal from this judgment has been perfected.

When normal procedures are inadequate to secure a relator in his rights, the relator may by writ of mandamus, require a public official or quasi-official to discharge a positive duty that affects his rights. See “Mandamus”, in Texas Practice (Lowe & Archer), Sec. 471, p. 434. Also 55 C.J.S. Mandamus § 1, p. 15; and 37 Tex.Jur. (2) Sec. 3, p. 588. More to the point in this case is a statement found in Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434, saying:

"While it is the general rule- that a mandamus will not issue to control the action of an inferior court or public officer in a matter involving discretion, the writ may issue in a proper case to correct a clear abuse of discretion. Southern Bag & Burlap Co. v. Boyd, supra [120 Tex. 418, 38 S.W.2d 565]; Womack v. Berry, 1956, 156 Tex. 44, 291 S.W.2d 677, 682(2, 3) and (4).”

Historically and in current usage mandamus is an extraordinary proceeding and the writ will not issue when the parties to the law suit have another remedy as complete and effective as the writ of mandamus since the writ • is not designed to supplant general procedures governing the trial of lawsuits. Mandamus 37 Tex.Jur. (2) Sec. 12, p. 599 and cases listed under footnote 10. From a study of the Crane v. Tunks case and the other authorities, indicated, it appears that the courts of Texas have reached a con-census that is applicable under the circumstances shown .here. That is, if error is committed in granting or refusing a discovery order, the order will not be corrected or revised in a mandamus proceeding except in instances where . (1) the order authorizes a search for evidence that intrudes into a non-relevant field of fact and constitutes (2) án invasion of private fight or privileges of (3) a nature or (4) in a manner that (S) prevents the wrong inflicted from being rectified by lawful means, (6) thereby leaving the injured without redress against an improper exercise of discretion.

There is no assertion here that the expert witness’s material, work and opinion subjected to discovery by the order quoted is not relevant to the issues in the case on trial in the County Court. The State does assert that some part of it, or all, is privileged by the terms of Rule 186a. (The expert witness is not a party and makes no claim in his own behalf that his personal rights are violated). Perhaps the order requiring the witness to divulge the material or his opinion of value prior to a trial of the merits will expose him to a more searching cross-examination or impeachment than would be the case if pre-trial discovery was not allowed. Objection to improper evidence can be made at the time it is offered at the trial. Likewise, the information the witness is required to reveal in the discovery order could be elicited on cross-examination in a trial on the merits. Error in authorizing discovery in the limited area permitted by the order can have no more serious consequence than error in permitting interrogation of a witness to develop inadmissible testimony, which is customarily dealt with by appeal. Any injury the State may suffer by reason of the discovery order may be completely and effectively rectified by an appropriate appeal from a final judgment in the County Court case. The State’s points of error are overruled.

The Shirleys based their appeal on the District Court’s refusal to order the County Court to grant them discovery privileges in excess of the grant in the order quoted. The most persuasive basis asserted to show error is the claim that the mandamus is more expeditious than an appeal would be in making appropriate evidence available should the trial judge err in excluding relevant examination of the witnesses. It seems inevitable that if mandamus should be approved for use in cases of this kind the result would be delay and a multiplicity of suits and appeals. Each party could seek discovery; if not granted to their satisfaction each could then become a relator in petitions for mandamus. The central litigation would languish while a series of mandamus actions were prosecuted. This case is illustrative. The reasons that required the State’s points of error to be overruled have equal application here. The Shirley’s points are overruled.

What has been said should not be understood as giving a judge carte blanche in administering the discovery rules. The judge has a duty to give careful consideration to his discovery orders and the effect thereof upon the rights and privileges of the parties involved. When granted proper safeguards against unlawful incursions upon the rights of others should be a part of the order. See Commentary, under Rule 167 appearing in the first volume of Vernon’s Annotated Texas Rules, pps. 501-512.

The District Court judgment in each case is affirmed.

STATE’S SECOND MOTION FOR REHEARING.

The State’s second motion for rehearing, as did its “first, accentuates the State’s basic thesis that the County Judge’s discovery order gave the landowner access to legally relevant evidentiary material that is excepted from the discovery process altogether by the terms of 167 and 186a, V.A.T.R., and for that reason is beyond the reach of discovery procedures. The State vigorously re-asserts that mandamus is appropriate in this instance to protect the State from the County Judge’s misuse of the discovery power. Having concluded that the State’s position is correct in certain particulars, the opinion written on the State’s first motion for rehearing is withdrawn and the following is substituted for it.

The nature of the evidentiary matter made the subject of discovery by the County Judge’s order quoted in the original opinion is, stated in brief, a report made to the State by its appraisal witness Bloodworth prior to the hearing theretofore held before commissioners in the initial steps of the condemnation proceedings, written reports and testimony submitted to such commissioners, and charts, maps, etc., used by the witness in making his appraisal, if in his possession, and if not the name, etc., of persons having the material in custody; and additionally involved is the action of the County Judge upholding the subpoena ordering Bloodworth to appear for deposition in the County Court at a time to be agreed upon by the parties. The State’s two motions for rehearing have sifted out all of this subject matter except “such reports as he [witness Bloodworth] may have submitted to the State at or prior to the date of the hearing before special commissioners”. The question decided here is limited accordingly.

The State’s verified petition for writ of mandamus plead that November 1, 1959, the State Highway Department determined it was necessary to take 6.275 acres out of a larger tract of land belonging to respondents Shirley and wife for Interstate Highway No. 30 right-of-way purposes; that thereafter the witness Bloodworth was employed to conduct an investigation of the Shirley land and the market for real estate in its vicinity, and that the witness did so and prepared and furnished to the State a written appraisal report in which he expressed his opinion of the value of the Shirley land being appropriated and his opinion concerning damages to residue. The respondent County Judge did not answer; but the Shirleys, pleading they were the real parties in interest, filed an unverified pleading labeled “Motion to Deny Writ of Mandamus”. Apropos the Bloodworth appraisal report the Shirley’s motion said: “That the Honorable Robert L. Dalby did not err in ordering the production of all reports made to the State by Wilson K. Bloodworth prior to the hearing before special commissioners***"

The quoted portion of the Shirley’s answer is in the nature of confession and avoidance of the facts alleged. It does not deny the facts plead by the State, it merely asserts that the County Judge did not err in making the order. The motion created no fact issue for the District Judge to resolve. The State’s allegations of fact in this particular must be taken as true. Sansom, Mayor, etc. v. Mercer, 68 Tex. 488, 5 S.W. 62; McKenzie v. Commissioner of General Land Office, 88 Tex. 669, 32 S.W. 1038; Town of Pearsall v. Woolls, Tex.Civ.App., 50 S.W. 959, no writ. If the facts pled support such action the State is entitled to an award of the writ. Burrell v. Blanchard, Tex.Civ.App., 51 S.W. 46, no writ; Singleton v. Austin, 27 Tex.Civ.App. 88, 65 S.W. 686, no writ; Sansom, Mayor, etc. v. Mercer, supra; Marr v. Reynolds, Tex.Civ.App., 151 S.W.2d 263, writ dism’d, judg. cor.; City of Houston v. Freedman, Tex.Civ.App., 293 S.W.2d 515, writ ref., n. r. e.

Originally this court was of the opinion that mandamus was not available to the State to countermand the County Court order requiring the State to produce the Bloodworth report, even though it be assumed the report was immune from discovery, because evidence contained in the report could be challenged when offered in the trial on the merits, and if admitted over objection the error could be reviewed on appeal. The State concedes that a ruling admitting evidence so discovered could be corrected by appeal, but hastens to point out that an appeal would not guard against or be adequate to prevent the Shirleys from using the content of the report to find other evidence that may exist or be secured elsewhere. In other words, the State insists that what the Shirleys might prove by admissible evidence found in the report is one thing, and what evidence they might find elsewhere as a result of examining the report is quite another. .

No statement of facts reflecting the evidence offered, if any, in the District Court has been filed. The record in this court does not show that either the County Judge or District Judge examined the Bloodworth report. All that is made known by the record about the contents of the report is to be found in the facts plead by the State. The State petition alleges that the report contains the witness’s opinion of the value of the land appropriated by the State and his “opinion concerning damages” to the residue of the Shirley tract. This information is too vague to support a finding, in the words of Rule 186a, that the report “ * * * appears reasonably calculated to relate to the discovery of admissible evidence * * * Originally this court was.of the opinion that the matter ended at this point, and that the State had an adequate remedy equally as convenient, beneficial and effective as mandamus. See footnote 2.

The State made a determination that it was necessary to acquire 6.275 acres of the Shirley’s land on or about November 1, 1959, and subsequently employed the witness Bloodworth to investigate land values in the area round about; this he did,- and made a written report of his findings to the State. His report is immune to discovery by reason of one or more of the provisions of the rules now to be discussed. Rule 167 provides for discovery and production of documents, etc., and authorizes a discovery order upon a showing of good cause therefor. Listed in the Rule are, “ * * * documents, papers (except written statements of witnesses), books * * *”;' also in the last proviso of the rule is this language, to-wit: “ * * * rights herein granted shall not extend to the written communications passing between agents or representatives or the employees of either party to the suit, or communications between any party and his agents, representatives, or their employees, where made subsequent to the occurrence or transaction upon which the suit is based, and made in connection with the .prosecution, investigation or defense of such claim or the circumstances out of which same has arisen. * * * ” Rule 186a dealing with the scope of examination permitted in discovery procedures contains, this proviso: “ * * * the rights herein granted shall not require the production of written statements of witnesses or extend to communications passing between agents or representatives or the employees of either party to the suit, or communications, between any party and his agents, representatives, or their employees, where made subsequent to the occurrence or transaction upon which the suit is based, and made in-connection with the prosecution, investigation, or defense of such claim, or the circumstance out of which same has arisen ; and provided further, that the rights herein granted shall not require disclosure of information obtained in the course of an investigation of a claim or defense by a person employed to make such investigation. * ;{« * ”

With reluctance rooted in doubt' the conclusion has been reached that the-Bloodworth report is absolutely immune from discovery. The County Judge was not vested with discretion, he could not grant discovery, .lawfully he could only refuse it. The immunity is conferred upon the report by the Rules mentioned and is' a right that the Judge is powerless to override in this case; and his order doing- so is a nullity. See Ex parte Ladon, 160 Tex. 7, 325 S.W.2d 121. Federal Practice and Procedure (Barron & Holtzoff) Rules Edition, Sec. 652.5, contains an enlightening discussion of the subject “Discovery of the Conclusions of an Expert”. This respected work says that the Federal Courts are in conflict on the question, but that a majority hold expert opinions beyond the reach of the discovery process under the Federal Rules. On comparison of the State and Federal Rules no language of an exclusionary effect comparable to that heretofore quoted in connection with Rules 167 and 186a is found in a similar context in the Federal Rules. The Texas Rules conferring power upon courts to order discovery, clearly intend to except from the power granted any authority to order production of such writings as the Blood-worth report.

The Supreme Court of Texas in Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434, at Syllabi 5, and Neville v. Brewster, 163 Tex. 155, 352 S.W.2d 449, Syllabi 4, 5, and 6 seems to imply that a less difficult question would be presented in each of those cases if the subject matter of the proceedings were “privileged” by Rules 167 or 186a. In turn this suggests that the Supreme Court regards mandamus as a proper remedy to supply relief from an order, as in this instance, allowing discovery of an expert's report. The only apparent alternative to mandamus that would preserve immunity in this case would be a procedure similar to that followed in Ex parte Ladon, supra; that procedure cannot be considered as being equally as convenient, beneficial and effective as mandamus because the State’s counsel would be required to jeopardize his freedom by disobedience of the trial court as a prerequisite to review.

The appellants’ motion for rehearing in No. 7600 was overruled on September 15, 1964; the State’s second motion for rehearing in 7601 is granted, and the judgment of the trial court is reversed and remanded in one particular, only, that is, in denying the writ of mandamus, prayed for by the State, directing the County Judge to rescind the County Court order requiring the State to produce the Blood-worth report for inspection and copying by the Shirley respondents; the District Court is ordered to enter a judgment consistent with this decision; the judgment of the trial court is otherwise affirmed.

      . This term is used to avoid intermingling those matters excluded by Rule 167 and 186a with the common law concept of “privileged” communications; although the use of “privileged by Rule 167 and 186a” would he accurate and its meaning clear.

      . The foregoing analysis establishes .that the State is not being .required to disclose any information that would invade any sp.here of State interest or be harmful to it except possibly in 'the defense of the condemnation suit pending in the County Court. Production of the report, if erroneous, may be redressed and rectified by appeal; therefore, the State-has an. adequate remedy that is equally as ‘convenient, beneficial, and effective as mandamus’. See Arkansas Motor Coaches, Ltd. v. Taylor, 234 Ark. 803, 354 S.W.2d 731, 95 A.L.R.2d 1227, and annotations on. the subject of availability - of mandamus or prohibition to compel or to prevent discovery proceeding .in 95 A.L.R.2d 1229 et seq. Additionally, this decision leaves the gate open to a flock, of ancillary suits.