author: ONION, Judge. MORRISON, Judge.

text:
    Eddie Harold HARRINGTON, Appellant, v. The STATE of Texas, Appellee.
    No. 40849.
    Court of Criminal Appeals of Texas.
    Jan. 3, 1968.
    Rehearing Denied Feb. 21, 1968.

      Bill Pemberton, Greenville, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is Burglary with Intent to Commit Theft; the punishment, enhanced under the provisions of Article 62, Vernon’s Ann.P.C., twelve (12) years confinement in the Texas Department of Corrections.

Appellant brings forth 13 grounds of error. We have taken the liberty of re-numbering them in order to present them in the chronological order in which they are alleged to have occurred.

In his first ground of error appellant claims that the trial court erred in overruling his motion to quash the jury panel in that the jury wheel in Hunt County was improperly filled in August, 1965, in violation of Articles 2094 and 2095, Vernon’s Ann. Civ.St.

Hunt County is a “jury wheel”' county. Judicial notice will be taken by appellate courts that in the county from which the case has come the jury wheel method of obtaining jurors prevails. Garza v. State, 138 Tex.Cr.R. 403, 136 S.W.2d 861; Jones v. State, 85 Tex.Cr.R. 538, 214 S.W. 322; 35 Tex.Jur.2d, Jury, Sec. 45, p. 87.

Appellant introduced testimony from the County Tax Assessor-Collector and the District Clerk tending to show that the provisions of the above statutes (Articles 2094 and 2095, supra) had not been complied with in that the officials had used the poll tax list exclusively in filling the jury wheel with the names of qualified jurors. See Atwood v. State, 96 Tex.Cr.R. 249, 257 S.W. 563; Attorney General’s Opinions O-5521, C-642. The State contends the evidence shows a substantial compliance with the aforesaid statutes and reflects that the name of no qualified juror was intentionally or deliberately omitted from the jury wheel. Vasquez v. State, 76 Tex.Cr.R. 37, 172 S.W. 225; Northern Texas Traction Co. v. Bryan, 116 Tex. 479, 294 S.W. 527. In view of the conclusion we have reached a recitation of the facts developed at the hearing on the motion to quash the jury panel is deemed unnecessary.

An exhaustive search of the record before this Court fails to reflect any evidence that the jury which tried the appellant three days after said hearing and which rendered the verdict upon which the judgment here appealed from was based was selected from a jury panel drawn from the jury wheel which he claims was improperly filled.

When confronted with a similar problem, this Court, in Williams v. State, 159 Tex.Cr.R. 76, 261 S.W.2d 175, said:

“A defect in the drawing of the jury panel would be material only when the jury which tried appellant was selected therefrom. Gaytan v. State, 116 Tex.Cr.R. 215, 32 S.W.2d 361; Evans v. State, 110 Tex.Cr.R. 560, 9 S.W.2d 360.
“We have no authority to presume that the jury which tried appellant was selected from the alleged irregular jury panel.”

See also Lenox v. State, 144 Tex.Cr.R. 226, 161 S.W.2d 1085; Stiles v. State, 147 Tex.Cr.R. 603, 183 S.W.2d 567; Wynn v. State, Tex.Cr.App., 259 S.W.2d 227; Priest v. State, 162 Tex.Cr.R. 260, 284 S.W.2d 148; 35 Tex.Jur.2d Jury, Sec. 96, p. 146.

Likewise, in absence of evidence, we cannot presume that the jury or a mem-her thereof which tried appellant was selected from the jury panel for the week referred to in the testimony on the motion to quash the panel or was drawn from the jury wheel claimed to have been improperly filled the preceding August.

We find no merit in appellant’s contention that Articles 36.01 and 37.07 Vernon’s Ann.C.C.P.1965, repealed by implication the repetition of offenses statutes, Articles 62 and 63r V.A.P.C., and that the trial court erred in overruling his motion to quash the second and third paragraphs of the indictment alleging prior convictions for the purpose of enhancement of punishment.

Further, there is no merit in appellant’s related claim that because the trial court informed the jury in his charge on the issue of guilt or innocence as to the punishment provided by law for the instant offense, as he was required to do by Article 37.07, Sec. 2(a) in effect at time of appellant’s trial, that he was precluded from submitting the case to the jury under the provisions of Article 62, V.A.P.C. at the penalty stage of the proceedings. Appellant’s second and third grounds of error are overruled.

In his fourth ground of error appellant contends the trial court erred in failing to charge the jury on the law of circumstantial evidence in view of his special requested charge. We cannot agree.

Responding to a call at approximately 2:30 a. m., police officers went to the Gibson Discount Store in the City of Greenville. Shortly thereafter the store’s manager arrived and opened the door and permitted the officers’ entry. A search of the store revealed the appellant hiding therein wearing a pair of gloves. The store’s safe had been moved from its customary place and was partially “peeled.” The tools found near the safe did not belong to the store. It was determined that entry had been made through holes made in the roof and ceiling. Another man was arrested on the roof of the building near the time of appellant’s apprehension. The store manager, who had the care, custody and control of the premises, testified he did not give appellant permission to break and enter the store. The trial court was therefore not required to charge on the law of circumstantial evidence.

We reject appellant’s contention that error was committed when a police officer witness at the hearing on guilt or innocence brought into the courtroom, in the presence of the jury, a Miller High Life beer box containing the tools which were later admitted into evidence as the tools found near the Gibson Store’s safe at time of appellant’s arrest. Upon the trial court’s attention being directed to the beer box by appellant’s objection, the objection was sustained, the box ordered removed from the courtroom and the jury instructed to disregard the box and not to consider it for any purpose. The motion for mistrial was overruled. Appellant’s fifth ground of error is overruled.

Appellant complained in his written objections to the court’s charge on the issue of guilt or innocence that paragraph No. 3 therefore constituted a comment on the weight of the evidence by the court, contained legal conclusions and was not a proper charge as required by law. The objection to the entire paragraph was too general, did not point out any specific error in the charge and was insufficient. See Davis v. State, 165 Tex.Cr.R. 294, 306 S.W.2d 353; Rymer v. State, 171 Tex.Cr.R. 656, 353 S.W.2d 35. Even if the objection had not been too general, it was without merit.

In his seventh ground of error appellant urges that the indictment was fundamentally defective for the reason that both prior convictions alleged for the purpose of enhancement under the provisions of Article 63, V.A.P.C. reveal that such convictions occurred on the same day (March 15, 1965) in the same District Court of Dallas County.

Prior to the penalty stage of the proceedings the court refused appellant’s motion to compel the State to elect which prior conviction alleged it expected to rely upon for enhancement in view of the occurrence of the prior convictions on the same date. Subsequently that portion of the indictment alleging two prior convictions for burglary with intent to commit theft was read to the jury.

In Ex parte Atkinson, 162 Tex.Cr.R. 546, 288 S.W.2d 89, this Court said:

“It is apparent that since the relator was convicted in both of the Trinity County cases on the same day, neither conviction could have preceded the commission of the offense in the other case and the two convictions could not constitute the basis for a prosecution as a third offender under Article 63, V.A.P.C. Ex parte Daniels [158 Tex.Cr.R. 2] 252 S.W.2d 586.” See also Gammill v. State, 135 Tex.Cr.R. 52, 117 S.W.2d 790; 16 Tex.Jur.2d, Crim.Law, Sec. 406, p. 626.

In Gammill v. State, supra, this Court also said:

“It is observed that the two prior convictions in Cherokee County for forgery occurred on the same day. Hence only one of them could be relied on by the state to fix the status of an habitual criminal upon appellant and only one of such convictions had any place in the indictment. Ellis v. State, supra [134 Tex.Cr.R. 346, 115 S.W.2d 660]; Nunn v. State [133 Tex.Cr.R. 266], 110 S.W.2d 71.”

We observe, however, that at the conclusion of the hearing on punishment the State, after offering evidence as to both prior convictions, did elect in the presence of the jury to dismiss paragraph three of the indictment, and the case was submitted to the jury under the provisions of Article 62, V.A.P.C.

Appellant’s motion should have been granted and both paragraphs of the indictment alleging prior convictions occurring on the same date should not have been read to the jury. However, in view of subsequent events and the fact that the prior conviction alleged in jrid paragraph three was admissible as part of the appellant’s “prior criminal record” (Article 37.07, supra), we perceive no reversible error.

We cannot agree that this ground of error is controlled by the decision in Burgett v. State of Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (dated Nov. 13, 1967). Burgett was tried prior to the effective date of the 1965 Code of Criminal Procedure. See Spencer v. State of Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606. Further, the prior conviction (contained in paragraph three of indictment) here admitted into evidence was not constitutionally infirm as was the one in Burgett (lack of counsel).

As an additional ground for reversal appellant contends he was compelled to give evidence against himself when the State was permitted to introduce his fingerprints taken during the trial, without an order of the court, and without the presence of counsel.

It appears that while the jury was deliberating on the issue of guilt or innocence the District Attorney, in the absence of the Trial Judge, requested the consent of appellant’s counsel to the taking of appellant’s fingerprints. Upon his refusal the District Attorney instructed the officers to take the appellant, who was already in lawful custody, from the courtroom to the county jail for the purpose of making his fingerprint impressions.

This Court held in Gage v. State, 387 S.W.2d 679, that a defendant’s fingerprints could be taken during the trial upon the request of the prosecutor and at the order of the trial court. In the case at bar, even though the fingerprinting was not done originally on the order of the Trial Judge, he sanctioned such action by admitting the prints taken into evidence. Similar contentions to appellant’s have been urged, considered and overruled in De La Rosa v. State, Tex.Cr.App., 414 S.W.2d 668; Travis v. State, Tex.Cr.App., 416 S.W.2d 417; Platt v. State, Tex.Cr.App., 402 S.W.2d 898; Dennison v. State, Tex.Cr.App., 399 S.W.2d 365. See also Green v. State, Tex.Cr.App., 408 S.W.2d 709. We do not find a violation of appellant’s privilege against self-incrimination. See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908; Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021; 8 Wigmore, Evidence, Sec. 2265 (McNaughton, Rev.1961). Appellant’s eighth ground of error is overruled.

Appellant further contends that the State failed to prove that he was the same person previously convicted in Cause No. E-9691-I as alleged in the second paragraph of the indictment, which conviction was relied upon for enhancement under Article 62, V.A.P.C.

Proof was made in the manner approved by this Court by the introduction in evidence of certified copies of the judgment and sentence together with authenticated prison records and comparison of fingerprints that appellant had been convicted as alleged in the second paragraph of the indictment. See Hamilton v. State, Tex.Cr.App., 397 S.W.2d 225.

Further, we reject the claim that Officer McCarley of the McKinney City Police Department was not shown to be qualified as an expert on fingerprints. Officer McCarley testified that he had been a police officer for approximately 5 years and had served for 2½ years as identification officer for the City of McKinney Police Department; that he had attended Texas A & M University; that he was about to graduate from the Institute of Applied Science, Chicago, Illinois, in recording fingerprint impressions, identifying and classifying the same; that he had taken fingerprints of 1500 to 1700 persons and had classified the same number; that he had taken appellant’s fingerprints and had compared them with fingerprints from authenticated prison records and was able to express an opinion thereon. Under such testimony the court did not abuse its discretion in holding Officer McCarley qualified to testify as a fingerprint expert. Todd v. State, 170 Tex.Cr.R. 552, 342 S.W.2d 575; Stevenson v. State, Tex.Cr.App., 395 S.W.2d 626.

In this tenth ground of error appellant complains of the trial court’s action in overruling his written objection to paragraph No. 3 of the court’s charge on punishment. He contends that portion of paragraph No. 3 which reads, “It now becomes your duty to determine whether these allegations are true” relating to the prior conviction submitted to the jury shifted the burden of proof to the appellant and constitutes a comment upon the weight of the evidence. In reading the charge as a whole, we reject such contention.

Likewise, we reject appellant’s claim that the trial court erred in ignoring his special requested charge and instructing the jury in the charge at the penalty stage of the proceedings that “ * * * it has been determined, as provided by law, that the jury shall set the punishment herein” rather than informing them the appellant had elected or requested that the jury assess punishment. Under the provisions of Article 37.07, supra, in effect at time of appellant’s trial, it was provided by law that the jury assess punishment when the accused so elects. The court’s failure to inform the jury of the appellant’s election or request does not present error. Appellant’s eleventh ground of error is overruled.

In his last two grounds of error appellant complains of the jury argument of the County Attorney at the hearing on punishment. These grounds are presented by formal bills of exception. Appellant contends the County Attorney’s argument which follows constituted a reference to the appellant’s failure to testify:

“He’s (the defendant) received two years and has been shown mercy under the law; that no redeeming quality has been brought forth and we submit. * * *»»

And further

“and a criminal should not be allowed to run loose on streets anymore than a mad dog. We have a right to be protected, we submit. * * * ”

The record reflects that appellant had received two years for a prior conviction and such evidence was before the jury. We cannot agree that either argument constitutes a comment, either direct or indirect, upon the appellant’s failure to testify. Article 38.08, V.A.C.C.P.; Clark v. State, Tex.Cr.App., 362 S.W.2d 647. The trial court did not err in overruling appellant’s objections to such argument on these grounds.

Finding no reversible error, the judgment is affirmed.

OPINION ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Judge.

Appellant takes this Court to task for holding that there was no showing that the jury who tried him came from the jury wheel which he claims was improperly filled. He calls our attention to the fact that the voir dire examination of the prospective jurors began as soon as the hearing on the motion to quash the panel was concluded. He contends this is sufficient without further identification to demonstrate that the jury which tried him came from the “infected” jury wheel.

At the hearing on the said motion to quash there was evidence that the “jury panel for the week” had been drawn from such jury wheel, but the said jury panel was not otherwise identified.

There is no subsequent evidence in this record in the form of voir dire examination, stipulations, or other testimony to identify any member of the jury which tried appellant as having been selected from the jury panel for the week briefly referred to in the testimony on said motion to quash or was drawn from the jury wheel claimed to have been improperly filled the preceding August.

If, however, appellant’s contention be correct that the surrounding circumstances are sufficient to reflect that he was tried by a jury which came from the jury wheel in question, we conclude that no reversible error is shown.

Reliance is had upon Atwood v. State, 96 Tex.Cr.R. 249, 257 S.W. 563, which itself was based on Vasquez v. State, 76 Tex.Cr.R. 37, 172 S.W. 225. Appellant has failed to note that Vasquez v. State, supra, was severely limited by our far more recent holding in De Vault v. State, 159 Tex.Cr.R. 360, 264 S.W.2d 126. Though not mentioned in De Vault v. State, supra, Atwood v. State, supra, was necessarily also limited.

We concluded in the case at bar, as we did in De Vault, supra, that there is no showing here that effort was made by those preparing the list to place any name ahead of another, or that the manner in which the venire list was drawn resulted in harm to appellant. Cf. also Williams v. State, 164 Tex.Cr.R. 381, 298 S.W.2d 833.

We have examined appellant’s other contentions on rehearing and have concluded that they were properly and sufficiently discussed in our original opinion.

Appellant’s motion for rehearing is overruled.

      . Now no longer required by virtue of 1967 amendments to Article 37.07, supra (Acts 1967, 60th Leg., p. 1739, Oh. 659, Sec. 22 —effective August 28, 1967).

      . The paragraph in the charge complained of reads as follows:
      “You are instructed that the indictment in this case having charged that the burglarious entry was made with the intent to commit the crime of theft, before you will be warranted in finding a verdict of guilty you must find from the evidence, beyond a reasonable doubt, that the entry, if any, was made with the intent to commit the crime of theft.” Such charge is in substantial compliance with the charges set forth in 4 Branch’s Anno. P.C.2d, Sec. 2512, pp. 831, 832; Willson’s Criminal Forms Anno. 7th Ed., Sec. 3484, pp. 422, 423.


source: Caselaw Access Project

author: PEDEN, Justice.

license: Public Domain

text:
    J. Howard SMITH, Appellant, v. J. Allen SMITH, Appellee.
    No. 15189.
    Court of Civil Appeals of Texas. Houston.
    Jan. 18, 1968.
    Rehearing Denied Feb. 8, 1968.

      White & Wallace, James P. Wallace, Houston, Hester & Toscano, Harlingen, for appellant.
    Tom W. Foster, Houston; Talbert, Gies-sel, Barnett & Stone, Houston, of counsel, for appellee.
   PEDEN, Justice.

This cause was brought by the appellee to recover $25,000.00 (less $1,250.00, returned to him as income) which he paid to his brother, the appellant, under circumstances which appellee asserts amount to a sale or an offer for sale of unregistered securities by an unregistered seller in violation of the Civil Liabilities Section of the Texas Securities Act, Article 581-33, Vernon’s Ann.Civil Statutes. Appellant denies that he made a sale and contends he was acting only for appellee.

The trial court entered a judgment non obstante veredicto after receiving a jury verdict which included findings that (1) appellant did not offer for sale, sell or make a sale of the securities in question to appellee, and (2) that in the transaction in question appellant was acting solely as an agent for appellee.

The testimony shows that before the transaction in question arose, the parties had often discussed their investments when they met and when they corresponded. In April, 1963, appellant wrote a letter to each of his sisters and to appellee discussing matters of family interest and then describing in detail what was pictured as an attractive investment opportunity, stating as follows:

“There’s something I want to tell you about concerning a private investment opportunity that you may wish to consider. I am acquainted with several members of a private investment group who pool their money — and that of others — and purchase discounted retainage certificates of highway contractors. These are the certificates issued to contractors after their jobs have been inspected and accepted. Usually, the amount of the certificate represents the final 10% the State owes the contractor (probably most of his net profit) and the term of the certificate is 75 days.
“As you know, contractors are bonded for these jobs by a performance bond issued by an insurance company. The contractor must be bonded for each job before it can be awarded to him. To get a bond, the contractor must have an audit, and the audit must show a certain required amount of liquid capital over and above any indebtedness. If contractors worked regularly all year around as in some business there would probably seldom be any need for them to discount their certificates to obtain liquid capital. But they don’t. Roughly 80% of their year’s business is jammed into a 6-months period; they may have jobs going and opportunities for a sixth and seventh job pending.
“In order to get an acceptable bond they must show one dollar fo- free liquid capital for every ten dollars face-amount of the bond they require. With a number of jobs under way this may not be possible, even for large contracting firms, because their capital is spread over a number of current jobs. They may have considerable money due them in the form of these certificates, but since retainage certificates do not involve liens or other form of guarantee, they aren’t accepted at banks — at least under Texas banking laws. So the contractors have to turn to private sources for immediate realization.
“The principal, or operating member, of the group I am acquainted with has been a bonding agent for an insurance company for more than fifteen years and has a large and very profitable business in this field. The group itself is now in its tenth year of operation. With one exception, all members are kin by blood or marriage.
“The group has the contractor place his certificate and allied papers with the trust department of a designated bank, making an assignment on the envelope to them, and then authorizes him to draft on their fund for the discounted amount. The usual term that the group holds such papers is 3 - 6 weeks as the contractors pay lesser discounts for shorter terms. In order to maintain their financial relationship with the contractors (essentially, to keep the bonding and discount business from going elsewhere) the group must be prepared to meet any demand for capital under this arrangement their participating contractors make. This means they must frequently seek outside capital for their fund. I have been told that the fund averages around $2 million and that there are some ninety contractors in four states participating).
“At these times the members of the investment group offer to outside investors personally known an opportunity to participate. Those who are interested notify them of the amount they can commit and the date they will be prepared to do so. Usually, this amount will be called for within 10 days after that date, as the need arises. The principal then issues a note on the fund for the amount you invest and the group member, in turn, issues you an investment participation agreement instrument. Accounting is handled by a C.P.A. In particular, they are seeking investors who can offer $10,000 or more capital, as they wish to keep the total number participating as small and as manageable as possible.
“Whenever the certificate in which you are participating is tendered for payment by the trust department of the bank at the end of its term, your capital amount is refunded plus $40 per thousand invested. This works out to a capital return of $40 per thousand per month, sometimes a little more if the term is shorter. You may call this 4% per month, but note that it is capital gain and not interest. My present return is $2000 per month, a short-term capital gain.
“I first learned about this last year. The brother of a friend down here is one of the early members of the group, and he is now a member, too. There will be calls on him to obtain additional capital and there will be an opportunity for each of you to participate, if you wish, beginning probably in August. My guess is that between August and the 3nd of December you may have an opportunity to get a total return of as much as $10,000 on $50,000 investment because of the turnover rate that usually prevails during this period. Also, the group may need additional permanent capital for growth and there may be an opportunity to place your investment at the same rate regularly per month.”

Before and during the summer of 1963 appellant had been dealing with “the principal, or operating member of the group,” who was Paul Sandblom of Corpus Christi, through a Dr. Meadows. Dr. Meadows was receiving funds from more than a hundred investors and had sent the funds on to Sandblom, who issued promissory notes to Dr. Meadows at a rate which was 1% higher than the return specified in participation agreements which Dr. Meadows then issued to the individual investors. Dr. Meadows proposed that appellant take over some of the accounts. Appellant considered doing so. He opened a bank account in the name of “The Howard Association” and consulted his attorney about the problems involved. He got the privilege of dealing directly with Sandblom and receiving the same 1% return as Dr. Meadows, but it has not been established that he ever discussed the investment opportunity with prospective investors outside his family or that he ever received any sales commission.

Meanwhile, in appellee’s reply to appellant’s letter as set out above, appellee expressed interest and asked for more information about the investment opportunity. Appellant, after discussing the matter with Sandblom and learning that Sandblom wanted additional money, called appellee by telephone and told him how much Sand-blom had said he could invest and that appellee’s return would be at the rate of 5% each 25 days for a total return of 15% on his $25,000.00 in 75 days. Appellee then (on September 6, 1963) sent to appellant his check for $25,000.00 made payable to appellant. Appellant testified that he had arranged for appellee to send it direct to Sandblom, but that he deposited this check in his account in the name of “The Howard Association,” then transferred the $25,-000.00 together with a $4,000.00 investment of his own to an account of Sandblom’s in Corpus Christi. Appellant testified further that after some delay he received from Sandblom two promissory notes payable to himself and his wife, one for $25,000.00 and one for $4,000.00. He said this was a mistake on Sandblom’s part and that he (appellant) repeatedly asked that Sandblom correct the $25,000.00 note so that it would be payable to appellee. Sandblom never did send such correction note, and on November 9, 1963, appellant ’ finally responded to appellee’s urgings and mailed to ap-pellee this acknowledgment of the receipt of $25,000.00:

The Howard Association
P. O. Box 19-554
Houston, Texas, 77024
November 9th, 1963
Mr. J. Allen H. Smith
5005 Gaston Avenue
Dallas, Texas
Dear Allen:
This is to acknowledge that I have received from you the sum of twenty-five thousand dollars ($25,000.00) for investment purposes on September 10,1963, and did forward same on that date to the principal, who has issued a note for this amount on that date.
The terms of the note state that the term of the note is 75 days and that it is due and payable November 24th, 1963. This note is in my hands and can be seen at the Safe Deposit Department of the Spring Branch Bank, Houston, 24, Texas.
Yours very truly,
Joel Howard Smith

Appellant further testified that a 5% return was due on or about October S, 1963, and that about a week later he received an unexplained $3,000.00 check from Sand-blom’s account; when asked about it Sand-blom said it was a partial payment and that he could do with it as he pleased. He sent $1,250.00 of it to appellee by check drawn on “The Howard Association” and kept the remaining $1,750.00. The next event which occurred was the filing by others of bankruptcy proceedings against Sandblom.

The evidence and the pleadings show that appellant was not licensed as a dealer or salesman of securities as contemplated by the Texas Securities Act at the time in question; we hold that both the letter of acknowledgment dated November 9, 1963 and Sandblom’s $25,000.00 note were securities as defined in Article 581-4(A), Vernon’s Civil Statutes.

It is uncontroverted that the securities in question were not registered in compliance with the Act.

We now come to the question of whether it is established by the evidence as a matter of law that appellant offered for sale or sold a security to appellee.

Texas’ leading case on what constitutes a sale as contemplated by the Act is the 1956 decision in Brown v. Cole et al., 155 Tex. 624, 291 S.W.2d 704, 59 A.L.R.2d 1011. In that case the trial court withdrew the case from the jury without objection at the close of testimony and entered judgment for the plaintiffs based on their claim that defendant Brown had made a sale of unregistered securities while he was not registered in compliance with the Texas Securities Act, which was then Art. 600a, Vernon’s Ann.Civ.St. The Act has since been extensively amended, but the amendments do not affect the outcome of the instant case.

The Dallas Court of Civil Appeals affirmed the judgment of the trial court at 276 S.W.2d 369, and the Supreme Court affirmed the judgment of the Court of Civil Appeals.

The facts concerning the dealings between the parties in Brown v. Cole are quite involved, and a full discussion of them may be found in the Court of Civil Appeals’ opinion.

To summarize them briefly, defendant Brown, an employee of a brokerage firm, interested plaintiff Gould in a mining venture in Mexico which needed funds. Brown and others were to participate in making the loan and were to receive proportionate parts of the stock of a Mexican corporation which owned one-fourth of the mining properties involved. Plaintiff Gould interested plaintiff Cole, who sent his auditor to Mexico at defendant Brown’s expense to investigate the venture. Cole and Gould sent their checks to Brown, who acknowledged receipt of them and forwarded them to Mexico.

Brown made no commission; he suffered a complete loss of his investment and his statements were not relied on by plaintiffs.

In affirming the judgments of the lower courts in holding that Brown had made a sale as defined by the Act, the Supreme Court pointed out that

“Section 2(e) [now Sec. 4(e)] defines the term ‘sale’ or ‘ “offer for sale” ’ or ‘sell’ as including ‘every disposition, or attempt to dispose of a security for value’, and provides that ‘any security given or delivered with or as a bonus on account of, any purchase of securities or other thing of value, shall be conclusively presumed to constitute a part of the subject of such purchase and to have been sold for value.’ The Act further defines the term ‘sell’ as meaning ‘any act by which a sale is made, and the “sale” or “offer for sale” shall include a subscription, an option for sale, a solicitation of sale, an attempt to sell, or an offer to sell, directly or by an agent or salesman.’ ”

The act was amended in 1957 to include in this definition of “sale” or “offer for sale” the solicitation of an offer to buy.

The Supreme Court recited the following factors in its holding that there was a sale:

(1) The fact that Brown was also a purchaser does not ipso facto prevent his being a seller.

(2) There may be more than one seller.

(3) The seller may be any link in the chain of the selling process.

(4) A seller is one who performs any act by which a sale is made.

(5) If sellers had agreed to pay Brown a commission, he would have earned it because his efforts resulted in the participation by Cole and Gould.

(6) Brown was the agent of Cole and Gould in the transmittal of funds, but that was only a part of and resulted from dealings had theretofore with them.

(7) It was through Brown’s presentation to Cole and Gould that they became interested.

(8) Brown displayed salesmanship activity :

1. After initial discussions, he wrote sellers for more information.
2. Then Brown called Cole and Gould and gave them information he had received.
3. Trip to Mexico was made at Brown’s suggestion and at his expense.
4. But for Brown’s activities and repeated efforts the plaintiffs would not have participated in the transaction.

There are, of course, some differences between the facts in Brown v. Cole, supra, and the facts in this case. In the instant case the parties are brothers. Each had inherited a sizeable sum and was devoting a great deal of time to investing and reinvesting it. Appellee, as the older brother, frequently advised his brother and sisters as to his investment experiences and opportunities. Appellee testified that his conversations with Sandblom were not for Sandblom’s interest or his own but were undertaken for his brother to see if he could obtain for his brother the same 1% advantage that appellee and Dr. Meadows had obtained. Appellee testified that his having acted as intermediary in sending appellant’s money to Sandblom was done because appellant had asked him to and that he had not anticipated appellant would send the money to him (appellee).

But there is a marked parallel between many of the activities on the part of appellant in the instant case and those of Brown which the Supreme Court recites in upholding the judgment of the trial court in Brown v. Cole, supra, as being salesmanship activities:

(1) Appellant admitted he solicited ap-pellee’s participation when he first told appellee about the investment opportunity in the letter set out above; it was through such letter that appellee became interested.

(2) Appellee got all his information concerning the investment from appellant.

(3) Appellant was seriously considering going into the business of selling these investment opportunities for a 1% commission and did (a) set up a bank account for that purpose and (b) consult his attorney about the considerations which would be involved.

(4) The original letter constitutes rather persuasive salesmanship, and it did not give the name of any of the principals whom appellee could contact if he wished to invest; he had to go through appellant.

(5) Appellee asked for more information; appellant got it from Sandblom and gave it to appellee.

We feel that these factors are so significant that as a matter of law appellant must be held to have been a link in the selling process despite the jury’s findings in Issue No. 1 that there was no preponderance of the evidence that appellant did offer for sale, sell or make a sale of securities and in Issue No. 8 that appellant was acting solely as agent for appellee in the transaction in question. Under the facts of the instant case, the issues are considered together since the appellant’s defense of his having made no sale or offer to sell is based on his contention that he was only acting as agent for his brother, the appellee, who was the purchaser.

We overrule appellant’s first point.

Special Issues 2, 2(a), 3 and 4 (not previously mentioned in this opinion) inquired into alleged misrepresentations on the part of appellant in violation of the Act, and the effect of the jury’s answer to Issue No. 4 was to deny to appellee relief based on misrepresentations. In his brief, appellee does not contend that the jury’s answers to such issues are not supported by the evidence, and we hold that the evidence does support them.

Appellant’s second point of error asserts that Special Issue No. 8, which asks whether he was acting solely as agent for appel-lee, was supported by his pleading of joint venture. We have ruled that as a matter of law appellant made a sale as defined by the Act, so it is unnecessary to rule on this point.

Appellant’s third point says that judgment non obstante veredicto should not have been entered because (1) proper notice of the motion is not recited in the judgment, (2) no appearance of appellant’s attorney is recited ip the judgment, (3) no facts constituting waiver of hearing on the motion are recited in the judgment and (4) notice of the hearing of said motion is not contained'in. the motion itself.

Appellant makes no claim that he was not present at the hearing nor that he did not receive proper notice. The judgment non obstante veredicto shows on its face that he signed his name just beneath the words “Approved as to form.” We hold that this constitutes a waiver of the formal recitals in the judgment as to notice.

For the reasons stated, the judgment of the trial court is affirmed.


author: COLEMAN, Justice.

text:
    Robert L. SONFIELD, Jr., et al., Appellants, v. E. Rue THOMAS, Appellee.
    No. 15217.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    Feb. 1, 1968.

      Sonfield, Sonfield & Lawrence, Robert L. Sonfield, Houston, for appellants.
    MacNaughton, Brady & Marlatt, W. A. MacNaughton, Houston, for appellee.
   COLEMAN, Justice.

This is an appeal from a summary judgment for the plaintiff in a suit on a promissory note. The principal question is whether the facts set out in the affidavits filed by the defendants in response to the motion for summary judgment establish a valid parol extension of the due date of the note, or raise an issue of fact as to such an agreement.

The two appellants filed virtually identical affidavits. In his affidavit Robert L. Sonfield, Jr., states that after the execution of the note sued on “it was mutually agreed between plaintiff, E. Rue Thomas, this affiant and George H. Lawrence, that the payment of this note would be delayed or extended until such time as the 2,000 shares of the capital stock of Globe Leasing, Inc. became marketable through a regularly licensed broker who is a member of a national stock exchange and is being bought, sold and traded in the securities market; that Defendants agreed to continue to pay the interest on such note; that at such time, and at this time, it was and is contemplated within a short period of time arrangements will be made so that the shares of the capital stock of such corporation may be bought, sold and traded on a national stock exchange and will become marketable through a regularly licensed broker who is a member thereof; that such event should occur when the details with respect thereto are worked out; that such event has not occurred as of this date and Plaintiff has breached such an agreement by having filed this suit on March 24, 1967.”

In Martin v. Fannin Bank, 389 S.W.2d 724 (Tex.Civ.App., Houston, 1965) this Court said:

“For an extension of time for payment of a note to be binding, it must not only be supported by consideration but the extension must be to a time certain. While no certain date to which payment was postponed appears, it does appear that payment was postponed until a certain event occurred, that is, until a proper order should be signed by the United States District Court in a named proceeding then pending releasing the oil and gas proceeds that were alleged to be accruing to appellant. It is certain that in the case an order of release will be signed. Appellant alleges facts which if true will make certain that such an order will release the funds to him. In any event, however, it is certain that some order of release will be signed. While the date is not certain, the event to which postponement is granted is certain to occur. This suffices. Robson v. Brown et al., Tex.Civ.App:, 57 S.W. 83, 686, writ ref.; Hancock v. Stacy, 103 Tex. 219, 125 S.W. 884 (S.Ct.) ; West Texas Loan Company v. Montgomery, 27 N.M. 296, 200 P. 681; Cummings v. Badger Lumber Co., 130 Mo.App. 557, 109 S.W. 68.”

The affidavit does not state facts showing an agreement to postpone the due date of the note until the happening of an event certain to occur. While it may be contemplated that the arrangements will be concluded qualifying the stock to be listed on a national stock exchange, and that the stock will become marketable through licensed brokers, no facts are alleged that show with any degree of certainty that these events will occur. Sonfield v. Eversole, Tex.Civ.App., 416 S.W.2d 458 (1967), ref., n. r. e.

The judgment of the trial court is affirmed.

Affirmed.


text:
    T. F. MOWERY, Appellant, v. Jack McNAMARA et al., Appellees.
    No. 15210.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    Feb. 1, 1968.
    M. S. Morgan, Houston, for appellant.
    Solito & Murr, Edward G. Murr, Houston, for appellees.
   COLEMAN, Justice.

This is a suit to recover certain personal property which the appellant claimed was taken from his possession by trick or ruse and which the appellees refused to return to him on demand. The trial court withdrew the case from the jury and rendered judgment that the plaintiff take nothing.

Appellant borrowed the sum of $820.27 from the First Pasadena State Bank, executing a note therefor dated January 20, 1964, payable on April 20, 1964, and bearing interest at the rate of 8% per annum after maturity. To secure said note he executed a chattel mortgage on a TD14A International tractor with straight dozer blade. The chattel mortgage provided that in the event the note was not paid at maturity the mortgagee or other holder of said note could take possession of the property, with or without legal process, and for that purpose could enter any premises where the property may be located, the mortgagor waiving claims of damage for trespass or other injury caused thereby. It provided that the mortgagee or holder of said note, in addition to other remedies, could sell the property at private sale, with or without notice to the mortgagor. It provided for the manner of application of the funds received at the sale, and that the mortgagee could be a purchaser at the sale.

Appellant testified that Mr. McNamara arranged the loan at the First Pasadena State Bank in order that he, appellant, could pay a loan at a bank in Corrigan, Texas, and thereby secure the release of a lien on certain equipment which McNamara desired to purchase from appellant. McNamara signed the note with appellant. Appellant testified that he talked to the bank in April, and they gave him an extension until June. Neither the note nor a written extension thereof was introduced into evidence. He testified that he talked to “the bank” and told them that his wife had died and that he expected to get some money, “so he said it would be all right or else come down and make out a new note, and get it that way, either one.” He testified: “He said if I could have it the first of June it would be all right.” “He told me it would be all right to pay it the first part of June.”

Mr. Mowery testified that he did not know that the bank had sold the note to Mr. McNamara until after McNamara had got possession of the tractor on June 12, 1964. He talked to the bank on June 5, 1964, about extending the note and they told him it would be all right, but for him to see McNamara. He went and talked to him, and he said it would be all right, but to go see the bank. Appellant went to the bank and paid $200.00 on the note. In answer to the question:

“Did the bank make any definite arrangement when the note would be due?” appellant stated:

“July 1st was when I wanted to pay it.” He also testified: “I paid the $200.00 and I said I wanted to pay the rest of it on the 1st.”

On the 12th day of June, 1964, a man came to the place of business of Mowery Construction Company and said he was going to buy the tractor from “Moran.” On the 15th he came back and said he was going to try it out and said that if it worked he was going to pay for it. He was going to take it out on Mangum Road to try it out. Mr. Mowery was there and agreed that it could be taken out for the test. It was loaded on a truck owned by Wise-man Trucking Company. Mr. Mowery followed the truck in his car. The truck delivered the tractor to the Wiseman yard. Mr. McNamara and Mr. Wiseman were at the yard. McNamara told Mowery that he had repossessed the truck and had already sold it. Mr. Mowery then tendered him the $620.27, but the tender was refused. McNamara said that he had sold the tractor to Mr. Wayland. Mowery had no notice that the tractor was going to be sold prior to this time.

Appellees went to trial on their first amended answer and cross-action. At the conclusion of the testimony of the witnesses presented by the plaintiff, appellees made a motion for instructed verdict and took a non-suit as to their cross-action. In the cross-action appellees pled that the promissory note and chattel mortgage of January 20, 1964, had been duly assigned to McNamara by the First Pasadena State Bank; that after appellant defaulted in the payment of the note, he repossessed the tractor and sold it at private sale to Howard M. Wayland. A copy of the note was attached to the cross-action and made a part thereof.

The First Pasadena State Bank is not a party to this suit, nor is Wiseman Trucking Company or Mr. Wiseman. There is no direct evidence that the appel-lee Wayland claimed any interest in the truck other than the .appellant’s testimony that McNamara told him that he had sold the truck to Wayland. This testimony is hearsay as to Wayland. However the allegations of the cross-action constitute judicial admissions on the part of McNamara and Wayland and establish that Wayland claims ownership of the tractor by purchase from McNamara at a private foreclosure sale. McCormick v. Stowe Lumber Company, 356 S.W.2d 450 (Tex.Civ.App.-Austin, 1962, ref. n. r. e.); McCormick and Ray, Texas Law of Evidence, 2nd Ed., § 1127.

The chattel mortgage introduced into evidence authorizes such a sale. There is no evidence that the sale was not made in compliance with the terms of the mortgage, if, in fact, the note was past due and unpaid at the time the sale was made. There is no testimony showing the exact date on which the sale was made. The circumstances point to the conclusion that the sale was made before the tractor was repossessed. Unless the date the note became due has been validly extended to July 1, 1964, it was past due at the time the tractor was taken out of the possession of appellant.

In the absence of a provision to the contrary in the mortgage, it is necessary that the mortgagee take possession of a chattel prior to the time that he conducts a foreclosure sale under a power of sale given by a chattel mortgage. Ames Iron Works v. Chinn, 15 Tex.Civ.App. 88, 38 S.W. 247 (1896); Coulson v. Panhandle Nat. Bank et al., 54 F. 855 (Cir.Ct. of Appeals, 5th Cir., 1893).

Appellant testified that he tendered payment of the balance due on the note to McNamara, which was refused. A question arises as to whether the tender was sufficient since no interest was tendered. No objection was raised as to the amount tendered, and a sufficient tender was made by the pleadings. Harris v. Ware, 93 S.W.2d 598 (Tex.Civ.App., Waco 1936, error ref.); 12 Tex.Jur.2d, Chattel Mortgages, § 72, p. 99.

There is testimony that Mowery asked that the time for payment of his note be extended to July 1, 1964; that he told the bank, to which he had been referred by McNamara, that he wanted to pay the note on July 1; that both the bank and McNamara agreed to extend the time for payment of the note. According to the description of the note contained in the mortgage, the note bore no interest until maturity, but thereafter bore interest at the rate of 8% per annum until paid. Considering the facts in the light most favorable to appellant, as we must do since the case was withdrawn from the jury, we hold that a question of fact was raised as to a valid agreement to extend the time for payment to a definite date. This agreement was supported by a sufficient consideration. McNamara receives the benefit of an interest bearing obligation for a definite period and Mowery receives the benefit of forbearance for the same period. Novosad v. Svrcek, 129 Tex. 34, 102 S.W.2d 393 (1937).

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


author: SHARPE, Justice.

text:
    Juanita PATTERSON et at., Appellants, v. Jacob METZING, Appellee.
    No. 329.
    Court of Civil Appeals of Texas. Corpus Christi.
    Dec. 14, 1967.

      G. Cole Thompson, of Boone, Davis, Cox & Hale, Corpus Christi, for appellants.
    W. B. Moss, Sinton, Howell Ward, of Ward & Brown, Corpus Christi, for appel-lee.
   OPINION

SHARPE, Justice.

This is a trespass to try title action brought by appellee Jacob Metzing, plaintiff below, against appellees Juanita Patterson, John Patterson, Margie Dumas, M. J. Dumas and J. C. Jacks, defendants below. After a non-jury trial, the lower court rendered judgment for plaintiff. Separate findings of fact and conclusions of law were filed in addition to those contained in the judgment.

Plaintiff’s petition was in the form provided by Rule 783, Texas Rules of Civil Procedure. Defendants filed a plea of “not guilty” in accordance with Rule 788, T.R.C.P. The evidence consisted of the testimony of Jacob Metzing, the plaintiff, a deed dated May 4, 1962 from Elvira Tellez and husband, Jose Tellez, conveying a tract of land in San Patricio County, Texas, to Jacob Metzing and wife, Noma Metzing, and a stipulation of counsel that John Patterson is the husband of Juanita Patterson. Jacob Metzing testified among other things that Noma Metzing died after delivery of said deed and that the defendants Juanita Patterson, Margie Dumas and J. C. Jacks were her children.

The trial court, among other things, found and concluded in substance that the above-mentioned deed was the common source of title; that the name of Noma Metzing was placed in said deed by the writer thereof in the absence of Jacob Metzing by inadvertence, mistake or error and without the direction or authority of Jacob Metzing; that it was not the intention of the seller or purchaser that Noma Metzing should be named as one of the grantees; that Jacob Metzing was the sole purchaser and that the property was purchased by him with the proceeds of his separate property as his separate property; that no part of the purchase money \yas paid out of community property of Jacob Metzing and Noma Metzing or out of her separate property; that Jacob Metzing did not know the name of Noma Metzing was placed in the deed until after he received it in the State of Arizona after it had been recorded in San Patricio County, Texas deed records; that Jacob Metzing did not know of any way or method of correcting it as the wife could not convey property to her husband; that the presumption of law that when a deed is made to husband and wife that such property is community property was rebutted by the uncontradicted evidence that the name of Noma Metzing was placed in the deed without the knowledge or consent of the sole purchaser by mistake or error; that the property is the separate property of Jacob Metzing and that he has the legal title to same; and that plaintiff Jacob Metzing is entitled to recover title and possession of the property from all the defendants.

Appellants assert fourteen points of error attacking the findings and conclusions of the trial court and the judgment based on the same. By points one and two appellants contend that the evidence was legally and factually insufficient to support the trial court finding that the deed from Elvira Tellez, et vir, to Jacob Metzing and Noma Metzing was the common source of title. By points three and four appellants contend that the evidence was legally and factually insufficient to support the trial court finding that the name of Noma Metzing was included in the deed from Elvira Tellez, et vir, by mistake, inadvertence or error. By other points which are closely related to the contentions made in points one through four, appellants also complain of the findings and conclusions of the court and the judgment for plaintiff based thereon. These latter points to the extent they are material to disposition of the case will be mentioned in the course of the opinion. We will consider in particular appellants’ contentions that appellee’s evidence did not overcome the presumption of a gift from Jacob Metzing to Noma Metzing and that the findings of fact are not sufficient to support the judgment under any legal or equitable theory.

Jacob Metzing, the plaintiff, testified on direct examination in substance as follows: that he lives in Surprise, Arizona; that he owned the property in question which consisted of two and a half acres in San Patricio County, except for oil and gas; that Plaintiff’s Exhibit No. 1 was the deed to the property he bought; that he paid for the property out of his own money. When asked who the deed was made to, Metzing testified “It is made to me and then they asked me if I was married and I told them that I was and then they asked me what my wife’s name was, and I told them Noma Metzing. And I didn’t know they were going to put her name on the deed until they sent the deed to Arizona. And I had to sign it up there and my wife was up there.” The witness then testified that “And well, I said, ‘Both of our names are on here.’ And she said, T don’t want nothing of it.’ ” The trial court sustained defendants’ objection to the last-mentioned testimony. Mr. Metzing further testified that the first time he found his wife’s name was in the deed was “when we got the deed.” Mr. Metzing further said that he sold some property in Indiana and Arizona which he owned prior to his marriage with Noma Metzing and that all of the purchase money for the property in question came from his separate property and not from community property or earnings after his marriage; that he did not authorize the scrivener or real estate man to place his wife’s name in the deed; that he did not intend for her name to be in there; that the property was his sole and separate property. On cross-examination by counsel for defendants, Mr. Metzing further testified that his wife had three children, J. C. James, Margie Dumas and Juanita Patterson; that he came to Texas to buy the property; that he paid five hundred dollars cash in escrow at Corpus Christi and twenty two hundred dollars from the Glendale Bank; that he paid the five hundred dollars in Corpus Christi and the balance after he got the deed; that when he got the deed it was made out in his name and in his wife’s name; that after he got the deed he saw it, accepted it and sent the balance of the money in; that he never complained to the sellers or the title company about the deed. In answer to the question “And you already had the deed in your possession before you sent in the balance of the purchase price?” Metzing answered “I suppose so, yes.” On re-direct examination Mr. Metzing further testified that it was necessary for him to send in the twenty two hundred fifty dollars to keep from losing his five hundred dollars escrow money; that he was almost eighty years of age; that he bought the property to retire on it; that a sister and brother, apparently of his wife, lived in the vicinity of the property and “she wanted to come down here and fish with her sister and — for the rest of our days.”; that his wife lived for seven years after their marriage; that the purchase money came from his separate property.

The deed from Elvira Tellez and husband, Jose Tellez to Jacob Metzing and wife, Noma Metzing is on a printed form, and recites a consideration of “TEN AND NO/lOO — DOLLARS ($10.00), CASH and other good and valuable considerations.” The deed was dated May 4, 1962, but was not acknowledged by the grantors until May 21st, 1962. It was filed for record on May 23, 1962 at 10:15 A.M.

We will first consider appellants’ contentions concerning legal and factual insufficiency of the evidence to establish a common source of title. Plaintiff did not attempt to prove his title by showing a record title from the sovereign of the soil to himself nor by prior possession or limitation. Instead he relied solely upon the theory of title from a common source, i. e., the deed dated May 4, 1962 from Elvira Tellez, et vir, to plaintiff Jacob Metzing and wife, Noma Metzing. Plaintiff did not plead a common source of title nor was there a stipulation as to same.

Under Rule 790, T.R.C.P., the plea of “not guilty” filed by all the defendants, as provided for by Rule 788, T.R.C.P., was an admission by them for the purpose of the instant action that they were in possession of the premises sued for or claimed title thereto at the time the suit was commenced. However, in the face of the “not guilty” plea the entire burden of proof was on the plaintiff; and to recover under the theory of common source of title plaintiff was required to connect his title with the common source by a complete chain of title, connect the defendants’ title to the same source, and prove the superiority of his own claim or title to that of the defendant. Green v. City of San Antonio, 282 S.W.2d 769 (Tex.Civ.App., San Antonio, 1955, wr. ref. n. r. e.); 56 Tex.Jur.2d, Trespass to Try Title, § 121, pp. 254, 255. We have concluded that plaintiff has failed to discharge such burden in this case.

Jacob Metzing testified that the defendants J. C. James, Margie Dumas and Juanita Patterson were the children of Noma Metzing, his deceased wife. It was stipulated that John Patterson was the husband of Juanita Patterson. There was no evidence as to the defendant M. J. Dumas. This was all of the evidence concerning the defendants and their possible connection with the common source of title. We hold that the evidence concerning common source of title was factually insufficient as to the three defendants who were the children of Noma Metzing, deceased, and that it is legally insufficient as to the defendants M. J. Dumas and John Patterson, under the rules stated in Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965).

Appellee argues that since the testimony showed that three of the defendants were children of Noma Metzing, deceased, this was sufficient to raise an inference that they were claiming title to the land in question as her heirs, and since Noma Metzing was named as one grantee in the Tellez deed sufficient proof of common source was made. Even if we concede that there was some evidence of probative force on the issue of common source, we cannot agree that the same is sufficient to establish it by a preponderance of the evidence. There was no direct evidence that the three defendants who were children of Noma Metzing were actually claiming through her as heirs or from the Tellezes as the common source of title. There was no evidence as-■to whether Mrs. Noma Metzing left a will or as to when or where she died. The defendant John Patterson as the husband of Juanita Patterson would not have a claim through Noma Metzing, the mother of his wife. He was not joined pro forma only but was a defendant for all purposes. There was no evidence concerning any claim by him through the Tellezes or their deed to Mr. and Mrs. Metzing. As to the defendant M. J. Dumas the evidence fails to show any connection between him and the parties to this suit, the Metzings or the Tellezes.

Appellee has cited in support of his position the cases of Burns v. Goff, 79 Tex. 236, 14 S.W. 1009 (1891); Mitchell v. Mitchell, 80 Tex. 101, 15 S.W. 705 (1891); and Mayor v. Breeding, 24 S.W.2d 542 (Tex.Civ.App., San Antonio, 1929, wr. ref.). In Burns v. Goff, it appeared that the petition of the guardian for the minor plaintiffs alleged that the common source of title was the mother of his wards from whom the property descended to the wards. The court referred to a recital in a deed, not actually set out, which it held was sufficient to raise the inference that the wards claimed by inheritance through their mother. The trial court had excluded that deed as well as another, and the Supreme Court held that they should have been admitted. In Mitchell v. Mitchell the court held that where the will involved named certain defendants as devisees that this was sufficient evidence as to them of common source through the testator, but ás to a defendant who was not named in the will, the evidence as to common source was not sufficient. In Mayor v. Breeding it was made clear through their pleadings that the brother and sister of Robert Cook were claiming as his sole heirs at law through him as the common source. We believe that the three cited cases do not require holdings different from those made by us on the question of common source of title. In our case there is evidence only that three of the defendants are children of Noma Metzing, deceased. There is no satisfactory ’ showing that they are actually claiming as her heirs. In any event the cases mentioned would not affect our holding concerning factual insufficiency as to the three said defendants. Mitchell is clear authority for our holding of legal insufficiency as to the other two defendants.

For the reasons stated the findings of the trial court as to common source of title are not sufficiently supported by the evidence. Appellants’ point one (no evidence) will be sustained as to the defendants M. J. Dumas and John Patterson. Appellants’ point two (factual insufficiency) will be sustained as to the three remaining defendants. These holdings require reversal of the judgment.

We next consider appellants’ contention that appellee’s evidence did not overcome the presumption of a gift to Noma Metzing and that the findings of fact are not sufficient to support the judgment under any legal or equitable theory.

Appellants concede that the evidence is sufficient to support the finding of the trial court that the property involved was purchased with the separate funds of Jacob Metzing and that this would be sufficient to overcome the presumption that property acquired during marriage is community. However, they further say that the finding concerning the use of Mr. Metzing’s separate funds to purchase the property without more would not entitle Mr. Metzing to recover the entire title to the property. They argue that the legal effect of a deed, as a general rule, is to vest the property in the grantee; that such legal effect can in some instances be altered by parol evidence where the purchase money is advanced by another; and that in such case the prima facie presumption is that a trust results; that it can also be shown by parol that no trust was intended; but that where a wife or child is the grantee in such a deed, the prima facie presumption is of an advancement or gift, thus rebutting the presumption of a trust; that where the deed is to the husband and wife (the purchase money being the husband’s separate property) the presumptions are the same with reference to the wife’s undivided interest; and that, particularly, there would be the presumption of a gift to the wife. Appellants’ said contentions are supported by the cases of Higgins v. Johnson’s Heirs, 20 Tex. 389 (1857) and Tate v. Tate, 299 S.W. 310 (Tex.Civ.App., Eastland, 1927, wr. dism.). See, also, Kahn v. Kahn, 94 Tex. 114, 58 S.W. 825 (1900); Kennedy v. Kennedy, 210 S.W. 581 (Tex.Civ.App., Austin, 1919, wr. ref.) ; Cummins v. Cummins, 224 S.W. 903 (Tex.Civ.App., Amarillo, 1920, n. w. h.).

The trial court did not make a finding as to whether or not Jacob Metzing intended to make a gift to Noma Metzing of an undivided interest in the property. The testimony of Jacob Metzing on this phase of the case is so meager and unsatisfactory that it cannot serve as a proper basis to overcome the presumption of a gift to Mrs. Noma Metzing. He testified in substance that he did not tell anyone to place his wife’s name in the deed, although he did tell “them” her name. However, he accepted the deed with the name of Noma Metzing in it and paid the balance of the purchase price of the property out of his separate funds with knowledge of such fact.

There is no evidence to support the findings of the trial court that the seller did not intend that Noma Metzing should be named as one of the grantees or that Jacob Metzing did not know of any way to correct the deed.

The deed from the Tellezes, dated May 4, 1962, was acknowledged by them on May 21, 1962 in Nueces County, Texas and was recorded in San Patricio County, Texas on May 23, 1962 at 10:15 A.M. On the back of the deed there is the name of an attorney and the words “Return to Mr. & Mrs. Jacob Metzing, Route 2, Box 642, Peoria, Arizona.” There is no evidence concerning who actually drafted the deed or who, if anyone, represented the parties in connection with closing the transaction.

Appellee concedes that here it was necessary for him to overcome the presumption of a gift to Mrs. Noma Metzing, but argues that his evidence was sufficient to do so, citing Dean v. Dean, 214 S.W. 505, 508 (Tex.Civ.App., Austin, 1919, n. w. h.) wherein the court said:

“ * * * In the instant case, the property being paid for with appellant’s money, it became his separate property, unless he intended to give it to his wife, in which event it became her separate property. The fact that he had the deed made to his wife raises the presumption that he intended to make a gift of the property to her. But this presumption may be rebutted by competent evidence. The intent with which a party does an act is a fact known to him, and he is a competent witness to testify as to such fact. * * * ”

Although we agree with the rule stated in Dean we disagree that plaintiff’s evidence was factually sufficient to rebut the presumption stated.

For the reasons stated, the judgment of the trial court will be reversed, and the cause will be remanded in the interest of Justice. Rule 434, T.R.C.P., Davis v. Gale, 160 Tex. 309, 330 S.W.2d 610; Grant v. Taylor, 339 S.W.2d 554 (Tex.Civ.App., Houston, 1960, n. w. h.); Coleman v. Littles, 214 S.W.2d 678 (Tex.Civ.App., Ft. Worth, 1948, n. w. h.).

Reversed and remanded.


author: MASSEY, Chief Justice.

text:
    Ina Mae LAWRENCE et al., Appellants, v. Joe LATCH et al., Appellees.
    No. 16880.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 2, 1968.
    Rehearing Denied Feb. 23, 1968.

      Gordon Wellborn & Rex, Houston, and Vaughan O. Stewart, Henderson, for appellants.
    Marcus F. Vascocu, Longview, for ap-pellees, Dora Talley, Clarence W. Talley and Linda Sue Talley.
    Stone, Tilley, Parker, Snakard, Law & Brown, and G. W. Parker, Jr., Fort Worth, for appellee, Fort Worth National Bank.
    Hollie G. McClain, Gilmer, Turner, Rodgers, Winn, Scurlock & Terry, and Frank J. Scurlock, Dallas, for appellees, Joe Latch et ux, Louis Ray Latch, and Bradford Zachry.
   OPINION

MASSEY, Chief Justice.

The suit in this case was brought on the theory that in 1946 there was a verbal testamentary contract to make mutual wills by and between John Edwards and his sister, Margie Edwards, both deceased. Pursuant to said contract, according to plaintiffs, each made a separate will in which material testamentary provisions were identical.

Under the 1946 wills of Margie Edwards and John Edwards each gave to the other all household furniture, fixtures, equipment, and personal effects such as watches, jewelry, clothing and the like; and the remainder of his or her property to the Fort Worth National Bank as Trustee and in trust for stated purposes, primarily that the bank would pay over to the survivor (Margie Edwards or John Edwards) during his or her lifetime all the net income produced by the trust estate. Each will provided that the trust should cease upon the survivor, whereupon the residue was to go to and vest in persons stated.

John Edwards died in 1953, and under his will his property passed as provided by his 1946 will. Margie Edwards died in 1962, whereupon the residuary provisions of the will of John Edwards became effective. However, between 1953 and 1962 Margie Edwards made new and different wills, and finally her last will of July 30, 1959. In the last will other and different provisions from those in her 1946 will were made relative to the inheritance and distribution of her estate, in diminishment of the proportions thereof provided by her 1946 will to pass to the plaintiffs upon the death of the survivor (Margie Edwards or John Edwards). In her last will the Fort Worth National Bank was named Executor. Material portions of her estate remain undistributed.

A comparison of the extent of participation in the estate of Margie Edwards under her 1946 will and her last will of 1959 is shown by the following chart m which, by the letters “P” and “D” we have designated those who in the trial court were plaintiffs and defendants, respectively.

The last will of Margie Edwards contained the provision: “ * * * and I do now here expressly provide and make it a. condition precedent to the taking, vesting, receiving or enjoying of any property, benefit or thing whatsoever of this will, that no such devisee, legatee or beneficiary shall in any manner contest the probate thereof, or question or contest the same (will), or any part or clause thereof, in any judicial proceeding, and I further will and provide that, should any such devisee, legatee or beneficiary so contest or question, or in any manner aid in any such contest or questioning, he or she shall thereupon lose and forfeit all right to any benefit, and all right or title to any property or thing herein directly or indirectly devised or bequeathed to him or her, and every such right, title, property or thing is now by me expressly given, devised and bequeathed to, and shall thereupon vest in, such of my devisees, legatees and beneficiaries herein mentioned in Section V above as do not so question or contest or give aid in such questioning or contesting of, this will or probate thereof, or any clause or provision thereof, in the same proportion as they now take under said Section V of this will.”

Trial was to a jury. By answers to special issues it refused to find from a preponderance of the evidence that John and Margie Edwards executed their 1946 wills pursuant to any agreement between them to dispose of their property in the manner set out therein; or that on and prior to the time of their execution of their respective wills of 1946 they agreed that the survivor of them would leave all of his or her properties to the Edwards’ heirs in the manner and in the proportions as set forth therein.

In the judgment of the trial court it was stated: “The Court concludes, as a matter of law, that the institution of this suit and its prosecution by the Plaintiffs renders it impossible for them to participate as beneficiaries under the will of Margie Edwards, deceased, of date July 30, 1959, * * * and by reason of the action and conduct of the Plaintiffs, they have forfeited all of their right, title and interest in and to the Estate of Margie Edwards, deceased.”

Judgment was rendered in denial of all relief for which plaintiffs prayed, with the interest provided in their behalf by the last will of Margie Edwards forfeited and awarded to the defendants who were the residuary devisees (as indicated on the chart hereinabove) in proportions concerning which there is no dispute, and with the Executor directed to make its distribution in accord with the judgment and a prior interlocutory order made in the case.

From this judgment the plaintiffs perfected an appeal.

Affirmed.

The most material question posed by the appeal is whether the plaintiff/appellants forfeited their right to take under the last will of Margie Edwards. According to defendant/appellees their suit is one which contests the will and seeks to destroy it and that, under the manifest intention of said testatrix in her will, they were properly held to have forfeited their rights to inherit under it.

Apparent from the language found in Calvery v. Calvery, 122 Tex. 204, 55 S.W.2d 527 (1932) is the rule of law that a suit brought in good faith and upon probable cause to ascertain the intention of a testator and the extent of his devise, and then, in turn, to enforce the terms of the will in accordance therewith, will not be considered as an effort to vary the purpose and intention of the will, or to destroy it, and in consequence to thwart the testator’s intent. In accord is First Methodist Episcopal Church South v. Anderson, 110 S.W.2d 1177 (Dallas, Tex.Civ.App., 1937, writ dism.) and Hodge v. Ellis, 268 S.W.2d 275 (Fort Worth, Tex.Civ.App., 1954, in part reversed on other grounds at 154 Tex. 341, 277 S.W. 2d 900).

In Texas it does not appear to have been settled as to the law applicable in the event there is actually a contest of a will made in good faith and upon probable cause where the object is to thwart the will and intent of the testator. See Calvery v. Calvery opinion, especially at p. 530 of the South Western Reporter. However, if the question be of importance in the instant case we can assume that the trial court found that the plaintiff/appellants’ contest was not made in good faith and upon probable cause. No issue determinative, thereof was either submitted or requested. Texas Rules of Civil Procedure 279, “Submission of Issues”. The matter could not be said to be resolved as a matter of law.

Informative is 125 A.L.R. 1135, Anno: “Validity and applicability of provision of will or trust instrument forfeiting share of contesting beneficiary as affected by probable cause and good faith in contest.”

That the suit of plaintiff/appellants actually was a contest thereof brought to thwart the last will of the testatrix, Margie Edwards, is apparent when one takes cognizance of what would have been the effect thereon had the findings of the jury been in accord with their contentions. Had the jury found in accordance therewith plaintiff/appellants’ inheritance would have been enhanced over that for which Margie Edwards made provisions in her last will, with a corresponding diminishment of the inheritance directed to be received by others. Indisputably, such testatrix’ intent would have been thwarted had the jury so found, with the result that plaintiff/appellants would be entitled to inherit the proportionate amounts provided under her 1946 will.

The jury’s findings, against the contention of the plaintiff/appellants, therefore brought into operation the provision of her last will which declared forfeiture of their right to take anything thereunder. Under the circumstances of the case there is no doubt that forfeiture was applicable and thus properly made a part of the judgment of the trial court. Although the attack made was upon the ability, legal qualification, and authority of Margie Edwards to make an enforceable last will because of what was asserted as a 1946 contract with John Edwards there would be no material difference (as applied to the question here posed) from a case where the contention was that she did not possess testamentary capacity at the time she executed her last will. In either case the attack upon the testatrix’ ability to make the last will would amount to an attack upon the will itself.

Informative is 49 A.L.R.2d 198, Anno.: “What constitutes contest or attempt to defeat will within provision thereof forfeiting share of contesting beneficiary.”

Other points of error compromise complaints because the trial court admitted testimony of Josie Latch, in part as applied to relations and transactions with Margie and John Edwards before the death of the latter, and in part as applied to relations and transactions with Margie Edwards thereafter.- Objections to such testimony were that it was inhibited under provisions of Vernon’s Ann.Tex.St. Art. 3716, the “Dead Man’s Statute”, and that it was immaterial and prejudicial in that it cast Mrs. Latch in a sympathetic position where the jury would and did seek to return findings which would enable her to inherit.

We have examined the whole record and concluded that even if the trial court erred as contended the jury’s reception of Mrs. Latch’s testimony was not shown to have been reasonably calculated to cause and to have probably caused the jury to return a verdict other than that which it would have returned had such testimony been excluded. Therefore, assuming that the court did err, the error would not have amounted to reversible error. T.R.C.P. 434.

On the matter of applicability of Art. 3716, the “Dead Man’s Statute”, we will state — without discussion of our reasons— that we are of the opinion that the same would have had application to Josie Latch’s testimony had such testimony related to material transactions with Margie Edwards. However, it is to be noted from the record of such testimony that the following statements from plaintiff/appellants’ brief correctly reflect the nature of Mrs. Latch’s testimony, to-wit: “We feel that the foregoing detailed description of Josie Latch’s friendship with John and Margie Edwards for some thirty years was elicited for the sole purpose of creating sympathy among the jury. Not one iota of Josie’s testimony even remotely bears any semblance to evidence, direct or circumstantial, which could aid the Jury in determining whether or not John and Margie entered into an oral contract in 1946 and agreed to devise their property in a particular manner. * * *

“It is interesting to note that Josie Latch testified on cross-examination that she had never seen the 1946 wills of John and Margie, and further that she did not know that she was not mentioned in the 1946 wills. Also, she never offered one word of testimony concerning any statements or acts by John or Margie which indicated that they had even written a will prior to John’s death; * * *. In other words, Josie gave no testimony which shed any light one way or the other on the issue of a contract between John and Margie to write the mutual wills of 1946. All her testimony consisted of was repeated statements showing how nice she had been to the Edwards from the time she met them until the death of the survivor.”

From the foregoing we believe it obvious that the testimony of Mrs. Latch simply did not relate to the material issue in the case and did not amount to testimony regarding a statement of transaction with a decedent upon any issue material to the disposition to be made. In other words her testimony was as to her want of knowledge of facts concerning any material issue, without such want of knowledge having been dependent upon any statement of either decedent. Mrs. Latch’s testimony concerned matters about which there was no real dispute. These matters essentially related to the kindness and care rendered by Mrs. Latch to Miss Edwards prior to her death. There was evidence from other qualified persons which verified the fact of such service over a long period of time including her last illness and death.

It was in relation to the detailed evidence which Mrs. Latch was permitted to give concerning the forming of her acquaintance with John and Margie Edwards and her relationship with them prior to the time John Edwards died, and further and in particular her relationship with Margie Edwards thereafter and until the time Margie Edwards died, that plaintiff/appellants level their complaint of prejudicial error resulting from admission of immaterial and irrelevant testimony from Mrs. Latch.

Their brief expresses their complaint thus: “If we accept Josie’s testimony as the truth, then she proved a mutual admiration between herself and Margie — she gave her services to Margie and Margie reciprocated with gifts. Does the fact that a close friendship existed from 1953 until April of 1962, give us any hint, directly or circumstantially, as to why the 1946 wills were written as they were? We must know the intention in 1946; there is no issue on Margie’s intention after John’s death.

“Under the ruling of the trial Court the jury had to think that it was important to consider Josie’s testimony about her transaction with Margie after John’s death. They did not know that upon John’s death, if there was a contract, then it became irrevocable, and regardless of what Margie did then, she could not get out of her 1946 agreement. They must have thought that it was their duty to consider which of the parties stayed with Margie at the hospital during her last illness and which did not show up. They must have thought it important that Margie started giving Josie gifts after John’s death. They did not know that Margie had no equitable right to change her mind after John’s death if there was a contract.

“We know, and the jury knew, that after John’s death it became Margie’s intention for Josie Latch to get the bulk of the Edwards’ property. The subsequent wills written after John died showed the jury this; the gifts consisting of cash, automobiles and realty showed the jury this. Margie’s will of July 30, 1959, was the best evidence the jury had before them as to whom Margie intended her property should pass at her death. The issues submitted to the jury did not ask about Margie’s intention after John’s death. Yet the jury had heard this evidence and assumed that it was competent and that they must consider it. It tells them nothing about the existence or nonexistence of a 1946 contract, but it does tell them that in the end Margie favored Josie over her own blood relatives. The jury had to know that they could not carry out Margie’s final intention without finding that no contract was consummated in 1946.”

We are inclined to agree that there was considerable amount of testimony adduced from Mrs. Latch which was immaterial and without relevance to the issue on trial, though we have some doubt of the competence of objections made thereto.' In any event the decisive question is whether its reception of the evidence so prejudiced the jury that it returned a verdict other than that which it probably would have returned but for the evidence. To say that it did, in this case, would require us to hold such as a matter of law. This we decline to do. In our opinion the error, if any, in admitting the evidence complained of was harmless within the meaning of T.R.C.P. 434.

Judgment affirmed.


author: PARKER, Justice.

text:
    A. J. WEST, Appellant, v. Andrew MELLO, Appellee.
    No. 6945.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 1, 1968.
    Rehearing Denied Feb. 28, 1968.

      King, Sharfstein & Rienstra, Beaumont, for appellant.
    Ernest L. Sample, Beaumont, Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, for appellee.
   PARKER, Justice.

This is a common law damage suit brought by Andrew Mello against appellant, A. J. West. West died and his surviving wife, Grace West, and heir, A. J. West III, were substituted as defendants in the trial court. The plaintiff, Mello, recovered judgment as a result of personal injuries sustained by him while employed by Reynolds Southwestern Company on a seismograph expedition near Alvin, Texas. Mello was injured when he fell from or was knocked from a wagon, carrying seismograph equipment operated by him, when the two mules pulling the wagon ran away. This wagon and mules were owned by A. J. West. He agreed to carry personnel and equipment of Reynolds Southwestern Company with his wagons, mules and drivers. The Aetna Casualty & Surety Company intervened in the suit, seeking recovery from the West defendants of workmen’s compensation for the injury and medical benefits it had paid Mello as insurer for Mello’s employer because of the injuries he sustained in this accident. Trial was to a jury and, upon the jury verdict, judgment was entered in favor of Mello for $50,720.-86, of which sum the Aetna Casualty & Surety Company was awarded its subrogation interest of $10,035.86. From that judgment, the surviving wife of A. J. West, Grace West, and the son, A. J. West III, have appealed. Andrew Mello will be called plaintiff and the Wests will be called defendants.

The judgment of the trial court is affirmed.

In answer to the special issues numbered below, the jury found:

Special Issue No. 1: The mule driver in charge of the wagon occupied by Mello at the time of his injuries was acting within the scope of his employment with A. J. West.

Special Issue No. 2: The mule driver of the wagon occupied by the plaintiff on or about November 9, 1959 left the mules unattended while the plaintiff was in the doghouse.

Special Issue No. 3: Leaving the mules unattended was negligence.

Special Issue No. 4: Such act inquired of in No. 2 and No. 3 was a proximate cause of injuries to Mello.

Special Issue No. 5: The driver of the mule team hitched to the wagon occupied by Mello failed to warn Mello that he was leaving said mule team unattended.

Special Issue No. 6: The failure of the driver to warn Mello he was leaving said mule team unattended was negligence.

Special Issue No. 7: Such negligence found in No. 6 was a proximate cause of injuries to Mello.

Special Issue No. 8: As Mello started the gas motor in question, the plastic cover of said motor did not become entangled in said motor.

Special Issue No. 10: Mello did not fail to keep a proper lookout for his own safety immediately before the wagon began to move forward prior to the accident in question.

Special Issue No. 12: Mello started the gas motor in question while the mules were hitched to the wagon he was occupying.

Special Issue No. 13: Starting the gas motor was not negligence.

Special Issue No. 15: When the wagon which Mello was occupying began to move forward immediately before the accident, Mello was inside the doghouse.

Special Issue No. 16: When the wagon began to move forward, Mello did not remain in the doghouse.

Special Issue No. 17: Failing to remain in the doghouse was not negligence.

Special Issue No. 19: After the wagon began to move forward, Mello attempted to move to the rear of the wagon.

Special Issue No. 20: Mello moving to the rear of the wagon was not negligence.

Special Issue No. 22: After the wagon began to move forward, Mello hollered at the mules.

Special Issue No. 23: Hollering at the mules was not negligence.

Special Issue No. 25: The occurrence was not the result of an unavoidable accident.

A. J. West had the power to fire and hire the mule skinners, and the mule skinners were his employees. His chief mule skinner, Archie Sonnier, made his report to A. J. West and not to Reynolds Southwestern. The seismograph crew of Reynolds Southwestern had to be transported by mules and wagons in the area where they were working. On the occasion in question, the wagon on which Mello was riding stopped at a point some 150 to 300 feet away from where another wagon with drilling equipment was located. At the drill wagon site, a hole was being drilled in which a recording instrument in the wagon for Mel-lo would be placed by him so that the seismograph recording instrument would pick up the tremor from an explosion elsewhere. Mello was an instrument man. On his wagon was a doghouse to house his instrument, equipment and materials. Thereon was a motor for a generator running before and after the wagon stopped in order to get a good charge on the batteries. When Mello went into the doghouse to check his instruments and mix his developer, the mule skinner to this wagon was present. While in the doghouse, he felt the wagon jerk, saw the reins dragging on the ground. Looking out the door, he saw the driver, an employee of West, running toward the runaway team from the shot point 150 to 300 feet away. Leaving the doghouse, he was thrown from the wagon and. received his injuries while the driver of his wagon was running from the shot point toward Mello’s wagon and mules. The reins controlling the mules were not in the driver’s or anyone else’s hands. The mules were not tied. The mules were not unhitched. The recorder wagon would have been moved up to the shot point after the completion of the hole. A. J. West gave instructions for all of the drivers to stand by and hold the teams at all times while they were hitched to the wagons. Mello testified the mules ran some 500 feet.

The defendants, in effect, contend that a mule skinner or driver employed to attend the mules is a man attending the mules in the sense that he was a spectator with no responsibility of any kind. In this case, we have an instrument man who was injured being transported by wagon and mules and a driver, all furnished by West. The driver was a professional mule driver. Mello was a technical instrument man with a seismograph crew. To care for the mules or to attend the mules plainly meant the driver was charged with ordinary care to control the mules so that the passenger Mello would be safe. Attend means to care for professionally. Unattended means not cared for professionally.

A. J. West owned these wagons and mules. He employed the mule skinners. A. J. West agreed to furnish the wagons and mules, together with the mule skinners, to Reynolds Southwestern to carry their employees and equipment. This was a service.

Defendants have no-evidence points directed at the finding of the jury in answer to Special Issues Nos. 1, 2, 3, 4, 6, 7, 8, and 20, and insufficient evidence points directed at Special Issues Nos. 1 through 8, both inclusive. In considering the no-evidence points, the evidence favorable to the respective findings of the jury are considered. Each and all of the no-evidence points are overruled. In considering the insufficient evidence points, all of the evidence in the entire record is considered. The insufficient evidence points are overruled.

Defendants contend that, as a matter of law, A. J. West, his agents, servants, and employees, breached no duty owing unto plaintiff on the occasion in question. Defendants’ points of error so contending are overruled.

In numerous points of error, Defendants contend that there is no evidence showing that A. J. West, his agents, servants, and employees, owed any duty unto plaintiff on the occasion in question. Each and all of such points of error are overruled.

Defendants contend that the undisputed evidence shows, as a matter of law, that on the occasion in question the mule team and wagon occupied by plaintiff were under his control. Each and all of defendants’ points of error relating thereto are overruled.

Defendants contend that there is no evidence that on the occasion in question the mule driver in charge of the recording wagon was under the control of A. J. West, his agents, servants, and employees, in the manner of performing his services on said occasion. Each and all of defendants’ points of error relating thereto are overruled.

Defendants contend that the trial court erred in overruling their objection to the submission of Special Issue No. 2, as it was a comment on the weight of the evidence and the same assumed that plaintiff was in the doghouse on the occasion in question, when said fact is controverted under the evidence herein. The same contention is made as to the submission of Special Issue No. 3. In connection with the answer to the other special issues by the jury, the pleadings, and the entire record, these points of error are overruled. It was harmless error at the most.

Defendants contend the submission of Special Issue No. 8 was evidentiary and constituted only a part of the inquiry in connection with proximate cause, the word “entangled” confused the jury, and that said issue is so narrow an inquiry as to be prejudicial to the defendants as limiting the jury’s consideration only to one particular, specific method of contact that could have been made by the plastic cover of the motor. These contentions are without merit and are overruled.

In their last point of error, defendants contend the court erred in overruling appellant’s objection No. 11 to the submission of Special Issue No. 8a of the court’s charge, since same is predicated upon an affirmative to Special Issue No. 8, thus depriving defendants to an individual submission of same. This point of error is overruled.

All of defendants points of error are overruled. The judgment of the trial court is affirmed.