author: CALVERT, Chief Justice. GRIFFIN, Justice

text:
    James O. GERST, Savings and Loan Commissioner of Texas, et al., Petitioners, v. L. D. CAIN et al., Respondents.
    No. A-10269.
    Supreme Court of Texas.
    Feb. 3, 1965.
    Rehearing Denied March 10, 1965.

      Black & Stayton, Austin, Waggoner Carr, Atty. Gen., Austin, Joe R. Long, Asst. Atty. Gen., for petitioners.
    Sneed & Vine and Houghton Brownlee, Jr., Austin, Hutcheson, Taliaferro & Hut-cheson, and A. B. Mahon and C. R. Gregg, Houston, for respondents.
   CALVERT, Chief Justice.

L. D. Cain and others, Respondents, filed an application with the Savings and Loan Commissioner of Texas for the issuance of a charter for, and for permission to open and operate, a savings and loan association in downtown Houston under the name of Metropolitan Savings Association. The Commissioner entered his order refusing to issue the charter.

Respondents seek by this suit to vacate the order of the Commissioner and to require that he issue the charter. The trial court granted the relief sought, and the Court of Civil Appeals has affirmed the trial court’s judgment. See 379 S.W.2d 699. We affirm the judgments of the Court of Civil Appeals and of the trial court.

All except two of the statutory prerequisites for the granting of the charter were found affirmatively by the Commissioner and were stipulated by the parties in the trial court. Art. 881a-2, Vernon’s Texas Civil Statutes, in force when Metropolitan’s charter was applied for and refused, but since repealed by Acts 1963, 58th Leg., p. 269, ch. 113, § 2 (see Art. 852a, Savings and Loan Act), required affirmative findings by the Commissioner, prerequisite to the granting of the charter, that (1) the public convenience and advantage would be promoted by allowing the proposed building and loan association to be incorporated and engaged in business, and that (2) the population in the neighborhood of the place of location and in the surrounding country afforded a reasonable promise of adequate support for the association. Rules and Regulations promulgated by the Commissioner for implementing the statutory “public convenience and advantage” prerequisite required proof and a finding that the incorporation of the association would not unduly injure any other association. With respect to these matters, the Commissioner made the following findings:

“2. The public convenience and advantage will not be promoted by allowing such proposed association to be incorporated and engage in business taking into consideration (a) that the neighborhood and surrounding country is presently being served by seventeen (17) savings and loan associations, each operating in said neighborhood and the incorporation of the proposed association would result in an excessive number of savings and loan associations operating there and increased competition among such associations would be unduly injurious to all of such associations; and
“3. The population of the neighborhood of the place where the proposed association is to be located and the population of the surrounding country does not afford a reasonable promise of adequate support for the proposed association taking into consideration that the neighborhood and surrounding country is presently being served by seventeen (17) savings and loan associations, each operating in said neighborhood.”

It was on the basis of these findings that the charter was refused.

The discretion conferred on the Commissioner to grant or refuse charters by Arts. 881a-2 and 881a-3, Vernon’s Texas Civil Statutes, was not an unbridled discretion; his findings could not be arbitrary or capricious, but must have had support in substantial evidence. Phillips v. Brazosport Savings and Loan Ass’n, Tex.Sup., 366 S.W.2d 929; Gibraltar Savings and Loan Ass’n v. Falkner, Tex.Sup., 371 S.W.2d 548; Benson v. San Antonio Savings Ass’n, Tex.Sup., 374 S.W.2d 423. In this case the Commissioner not only refused to make the prerequisite affirmative findings, but made findings diametrically opposed thereto. Thus, before the judgments of the courts below may be affirmed, we must hold that the findings made are not supported by substantial evidence, and that the evidence so conclusively required affirmative findings that the refusal to make them was arbitrary or capricious. We do so hold.

Petitioners present six points of error in this Court under which they seek to support the Commissioner’s findings. Their first five points are briefed together and assert that there is in the record substantial evidence to support the Commissioner’s finding that public convenience and advantage would not be promoted by issuing a charter to Metropolitan because the increased competition would be unduly injurious to all Houston savings and loan associations. Their sixth point is devoted to the same finding but asserts that the increased competition would be unduly injurious only to Surety Savings & Loan Association.

We will deal first with the grouped points. Twenty-eight pages of Petitioners’ application for writ of error are devoted to a statement of the evidence and their argument in support of these points. Twenty-six of the twenty-eight pages deal, from one angle or another, with the economic “squeeze” on Houston savings and loan associations at the time the Commissioner refused to approve the articles of incorporation of Metropolitan and to issue the charter. As we view the record, there is no substantial evidence in the record supporting the Commissioner’s finding unless it be the “squeeze” evidence. Therefore, we limit our discussion of these points to that evidence.

Petitioners’ own summary of the evidence supporting their position and some of their deductions therefrom, are quoted at length in the opinion of the Court of Civil Appeals. See 379 S.W.2d 702-704. It would serve no useful purpose to set out the evidence in detail in this opinion. It may be summarized thusly: In December, 1961, Houston banks increased their interest rate on time deposits to 4%, and thus forced Houston building and loan associations to increase their dividends on deposited savings to 4Y2%. The increased dividends caused a tremendous growth in savings from that time until the date of the Commissioner’s order. Profitable operation requires that there be a spread of 2)4% between dividends paid on savings and interest received on mortgage loans in which funds are invested, and a break-even spread of 1%% is required. Mortgage loan interest rates did not increase contemporaneously with increased dividends, and one association was compelled to invest in mortgage loans yielding an average interest of 6.05% and in some loans yielding even less. Moreover, the overabundant supply of savings and available money from other sources brought on keen competition for mortgage loans, and led some of the associations having a policy of making 80% loans to make less desirable 90% loans. If Metropolitan is chartered and permitted to engage in business, the competition for mortgage loans will to that extent be increased, and existing associations will be injured in that the mortgage loans in which Metropolitan invests will not be available to them.

Petitioners’ summary of the evidence also reflects that one of them relieved the pincers of the “squeeze” by reducing its dividend rate from 4[4% to 4% until a large part of its excess savings had been withdrawn, and that it nevertheless had a 20% “growth” during the year; that while some of them had made 90% loans, none of them had made loans that did not have approval of the Commissioner; that while they would lose mortgage loan investments which Metropolitan would get, the financial structure and soundness of none of them would be threatened thereby.

Petitioners’ evidence, fairly summarized above, simply does not, in our opinion, constitute substantial evidence in support of the Commissioner’s finding that chartering Metropolitan would unduly injure existing associations. It establishes only that by raising dividends existing associations can create a detrimental imbalance in savings and investments and thus slow down the “growth” they like to have; and that this “growth” will be somewhat more satisfactory if no other association is permitted to enter the arena as a competitor. The same arguments could have been urged, of course, by the first Houston association against the chartering of the second of the existing associations, and, in turn, by the then existing associations against the chartering of each one subsequently chartered. But the “public convenience and advantage” of which the statute speaks is not thus to be determined. Competition is the lifeblood of a free enterprise economic system. It is only because savings and loan associations are affected with a public interest, Brazosport Sav. & L. Ass’n v. American Sav. & L. Ass’n, 161 Tex. 543, 342 S.W.2d 747, that they are protected from undue injury brought about by excessive competition. Southwestern Sav. & L. Ass’n of Houston v. Falkner, 160 Tex. 417, 331 S.W.2d 917. There is no evidence here that the chartering of Metropolitan would provide excessive competition for existing associations which would result in undue injury to them.

But inasmuch as the Commissioner refused the charter, the burden was on respondents to establish that the refusal of the Commissioner to make affirmative findings entitling them to the charter was arbitrary or capricious. The evidence introduced by respondents is summarized in the opinion of the Court of Civil Appeals. See 379 S.W.2d 705-710. In our opinion, the evidence tendered so conclusively required affirmative findings that the public convenience and advantage would be promoted by issuing a charter to Metropolitan and that such action would not result in undue injury to existing associations that the failure of the Commissioner to make those findings was arbitrary and capricious. Our decision in Benson v. San Antonio Savings Association, Tex.Sup., 374 S.W.2d 423, is not controlling here. Each substantial evidence case must be decided on its own facts, and the facts in two such cases will rarely be the same. We regard the facts in this case as more nearly like those in Gibraltar Savings & Loan Ass’n v. Falkner, Tex.Sup., 371 S.W.2d 548.

As heretofore noted, petitioner’s sixth point asserts that' there is in the record substantial evidence to support a finding that issuance of a charter to Metropolitan would unduly injure Surety Savings & Loan Association. The claim here is that since Surety is a new association in downtown Houston, chartering of Metropolitan would “make it more difficult for Surety to increase its volume of savings to a satisfactory level.”

We doubt that proof of nothing more than that chartering a new association will make it “more difficult” for an existing new association to increase its savings to “a satisfactory” level can, under any circumstances, constitute substantial evidence to support a finding of undue injury to the association. More difficult than what norm? What is a satisfactory level? And to whom must it be satisfactory?

Surety was chartered in the fall of 1961, and in the first fifteen months of its existence had accumulated savings and mortgage loans in the sum of $5,000,000. It has made no marginal or substandard loans, has at all times maintained its required reserves, and its officers are satisfied with its rate of growth which was better than had been anticipated. Its officers are “concerned” only about the effect that chartering Metropolitan may have on accumulation of savings. The evidence of Houston’s dynamic population and economic growth, experienced in recent years and forecast for the immediate future, leaves little basis for Surety’s concern.

The “public convenience and advantage” of which the statute speaks relates primarily to the convenience and advantage of those members of the public at large who may wish to do business with savings and loan associations, either as depositors or as borrowers, and only secondarily with the right or privilege of associations to be free of competition. While it is undoubtedly a matter of public convenience and advantage that the number of chartered institutions be kept within limits that will permit existing institutions to remain solvent and to operate on á reasonably profitable basis so that the incentive will exist to continue to serve the community’s needs, the provisions of the statutes can hardly be stretched to equate public convenience and advantage with an underwriting of “growth” satisfactory to officers and directors. By expressly providing for a right of appeal when a charter is refused but for no right of appeal when one is issued, the Legislature indicated its intention that the Commissioner’s discretion was to be exercised liberally in the issuance of charters.

The judgments of the Court of Civil Appeals and the trial court are affirmed.

GRIFFIN, Justice

(dissenting).

I find myself in disagreement with the majority opinion herein, and respectfully file this dissent.

I agree that the case is one to be tried, on appeal, under the substantial evidence rule. The majority has correctly stated the burden that rests upon respondents herein, if they are to overturn the order of the Commissioner refusing to grant a charter to Metropolitan.

The error of the majority, as I see it, is that it seeks to weigh and evaluate the evidence unfavorable to the Commissioner’s action, rather than determine if the evidence in the record reasonably supports that order.

In the late 1930’s and 1940’s the substantial evidence rule and the manner in which courts should deal with appeals from the orders of administrative agencies was the subject of much writing by this Court.

Most of the cases involved the orders of the Railroad Commission in oil and gas matters.

In 1939, in the case of Gulf Land Co. v. Atlantic Refining Co., 134 Tex. 59, 131 S.W.2d 73, this Court said:

“ * * * Stated In another way, the court does not act as an administrative body to determine whether or not it would have reached the same fact conclusion that the Commission reached, but will consider only whether the action of the Commission in its determination of the facts is reasonably supported by substantial evidence. (Citing authorities). To permit the court to substitute its fact findings on controverted issues of fact in such instances would add nothing of value to the administration of the law or the rule under discussion, but, to the contrary, would destroy all uniformity of Commission administration thereunder.” (Emphasis added.)

Unless otherwise indicated, all emphasis herein is that of the writer.

In 1942, Chief Justice Alexander wrote for the court the case of Railroad Commission v. Shell Oil Co. Inc., 139 Tex. 66, 161 S.W.2d 1022, generally known as the “Trem Carr” case.

But, this Court in the “Trem Carr” opinion recognized the rule to be applied on review to be:

“ * * * If the matter covered by the order is one committed to the agency by the Legislature, and involves the exercise of its sound judgment and discretion in the administration of the matter so committed to it, the court will not undertake to put itself in the position of the agency, and determine the wisdom or advisability of the particular ruling or order in question, but will sustain the action of the agency so long as its conclusions are reasonably supported by substantial evidence.
“ * * * The record is to be considered as a whole, and it is for the court to determine what constitutes substantial evidence. The court is not to substitute its discretion for that committed to the agency by the Legislature, but is to sustain the agency if it is reasonably supported by substantial evidence before the court.”

In order to furnish the bench and bar a rule by which they could be guided in trying the appeal, this Court said:

“If the evidence as a whole is such that reasonable minds could not have reached the conclusion that the agency must have reached in order to justify its action, then the order must be set aside.”

In 1946, in order to try to determine the proper rule to be applied, this Court wrote the “Trapp Case,” Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424. In that case this Court refused to recognize the use of the “great weight and preponderance” rule as set forth in the “Trem Carr” and the Marrs cases, but held that the rule announced in the Gulf-Atlantic case, supra, was “now the prevailing rules declared by this court.” In writing on rehearing, the Court approved the test above quoted from the “Trem Carr” case, to-wit:

“The court is not to substitute its discretion for that committed to the [administrative] agency by the Legislature, but is to sustain the agency if it is reasonably supported by substantial evidence before the court. If the evidence as a whole is such that reasonable minds could not have reached the conclusion that the agency must have reached in order to justify its action, then the order must be set aside.” (This emphasis is that of the court in quoting the above rule.)

So far as I am able to ascertain by the use of Shepard’s Southwestern Citations, this rule has not been criticized, or overruled, and has been followed down to the present in many cases.

In the case of Gibraltar Savings & Loan Association v. Falkner, Tex.Sup.Ct., 371 S.W.2d 548 (1963), in discussing the burden upon one, under the substantial evidence rule, appealing from an order of the Banking Commissioner refusing an application (who at the time the case was tried had the powers of the present Savings and Loan Commissioner) we stated the rule to be:

“ * * * This may be done by a showing that all of the evidence available to the Commissioner, and given in the trial court on appeal, so conclusively demands an affirmative finding on all requirements that a negative finding on any requirement can have no support in substantial evidence; therefore negative findings are arbitrary.” (Citing many authorities.)

In Board of Water Engineers et al. v. Colorado River Municipal Water Dist. et al., 152 Tex. 77, 254 S.W.2d 369, 372 (1953), 1st col., this Court said:

“Under that rule [the substantial evidence rule] the court makes an independent determination from the evidence adduced at the trial of whether the administrative order is reasonably supported by substantial evidence. * * * If an order is reasonably supported by substantial evidence it is reasonable; otherwise it is unreasonable.” Citing authorities. See also Hawkins v. Texas Co., 146 Tex. 511, 209 S.W.2d 338 (3, 4) for further discussion of the rule.

The majority, in my judgment, does not properly apply the rule.

In addition to the evidence set out in the majority opinion, I find the following facts testified to by witnesses in this case. I will summarize their testimony in the interest of brevity.

The date on which we are to determine the existence of substantial evidence is July 18, 1963, the date of the hearing before the Commissioner.

There is no denial of the fact that a savings and loan association must be able to get a greater interest rate on the money it loans to borrowers than the dividend rate (sometimes referred to as dividends) which it pays its depositors on their savings. This spread is to take care of the overhead expenses of the operation, the establishment of a reserve fund to care for delinquencies, losses, and provide a sufficient cushion to enable the association to meet unforeseen contingencies and still be able to operate. The testimony is that this spread between dividend paid to depositors and interest received on loans must be from 11/2% to 2%. The testimony shows that there had been a “squeeze” on savings and loan associations in the Houston area on July 18, 1963 (the date of the hearing before the Commissioner) due to the fact that the commercial banks in that area had raised their dividend rate paid to their depositors to 4%. The testimony shows that this forced the savings and loan associations to raise their rates to 4J4%. The testimony further shows that there was available in the Houston area much money seeking loans, in competition with savings and loan associations. The testimony further shows that as a result of this supply of lendable funds, the savings and loan associations in the Houston area had been forced to make loans up to 90% of the appraised value of the property offered as security, rather than 80% of the value and which is the generally accepted figure for safety and repayment; that in order to lend 90% a savings and loan association had to secure special permission from the Commissioner; that those associations which had secured such permission were having many more delinquencies on their loans and many more foreclosures, than under the 80% formula. The testimony further shows that the 4]4'% rate of dividend payment caused a 30% or better increase in the deposits of one association (Ben Franklin) and its lend-able funds were increasing out of proportion to the available loans and this resulted in an unhealthy and unsafe situation. This association sought to reduce its rate paid to 4%, but this action caused the withdrawal of so much savings that it appeared' this association would have to liquidate. Therefore, this association had to return to the old dividend rate of 414%. Having to pay this rate resulted in a situation where the loans available would not bring sufficient returns to operate and to take care of the required reserve. To meet this situation, this association had to issue and market $150,000.00 additional permanent stock and put the proceeds from this stock sale in the reserve account. There is testimony that although the assets of each of the existing associations had increased over the past few years, the reserves had declined, and that this decline was due to the “squeeze.”

There is testimony that the presence of such a large supply of lendable funds had resulted in fierce competition between the. seventeen existing and operating associations in the Houston area. This caused the making of marginal loans and what would otherwise have been undesirable loans. There is testimony that since 1962 and due to the increased lendable funds available, the interest rate on loans had decreased slightly as the dividend rate was increasing.

There is testimony that the effect of this is that the shrinking margin (called the squeeze) is so thin as to prevent profitable operations and maintaining the required reserve. This, if continued, will result in some of the seventeen associations now operating being forced to liquidate in the future or merge with the stronger and larger associations, thus decreasing the number that can profitably operate. There is testimony that the existing seventeen associations are capable of caring for in an efficient and satisfactory manner any increased business that may result from the economic expansion of the Houston area in the future as in the past. There is evidence that if the present applicant is given a license to operate, its existence will increase the effects of the “squeeze” and also increase the competition for available loans.

There is testimony that during the six months preceding July 18, 1963, the savings of one association had increased $18,000,000.00, whereas its loans had increased only $6,000,000.00. This means this association has $12,000,000.00 on which it must pay dividend, but is not earning interest. This is an unhealthy situation. The experience of Ben Franklin Association demonstrates that this association cannot reduce its dividend rate without being in serious danger of being forced into liquidation.

The evidence further shows that due to the excess savings the 4j4% dividend rates bring, and the competition for loans, some of the associations have been forced to buy loans with such low interest rate that there is a dangerously thin spread which might easily result in not enough yield to pay overhead and keep up the required reserve for the associations to maintain their liquidity.

The majority opinion implies that the existing associations want to be protected from competition. It is not that the existing associations want to be protected from competition, but that there is testimony that the competition of another association in the Houston area under conditions as they existed July 18, 1963, would cause “excessively zealous competition,”

This Court in Southwestern Savings & Loan Association of Houston v. Falkner, 160 Tex. 417, 331 S.W.2d 917, 920 (1960) said: “It is undoubtedly the purpose of Article 881 a-2 to protect against the evils of excessively zealous competition through control of the number of building and loan associations in a specified area.” To the same effect see Brazosport Savings and Loan Association v. American Savings and Loan Association, 161 Tex. 543, 342 S.W.2d 747, 750 (1961); Benson v. San Antonio Savings Association (Tex.Sup.Ct.1964), 374 S.W.2d 423.

There is further testimony that in the central business district of Houston, where applicant seeks to locate its home office, there are now offices of seven or eight savings and loan associations that are capable of rendering the necessary services to those desiring such facilities. The Commissioner has a right to consider that there are now seventeen savings and loan associations serving the Houston area. Not all savings and loan associations that apply to operate in the Houston area are entitled to a license to operate. Somewhere some agency must draw the line and have the power to say there are a sufficient number now operating and that additional ones may not be licensed to operate solely by virtue of the fact that none of the existing associations are insolvent, but are all solvent.

The business of licensing these associations is a legislative function and not a judicial function. The number that is for the best interest of any locality is largely a policy matter for legislative, not judicial, determination. The Legislature has delegated to the Savings and Loan Commissioner its power to determine this question. The courts should and must approve the Commissioner’s decision unless it is unreasonable, capricious or arbitrary.

We said in Benson v. San Antonio Savings Association (Sup.Ct.1963), 374 S.W.2d 423, “So the matter of drawing the line of demarcation (as to when to grant or refuse license), while nebulous, must lie, to a great extent, in the discretion of the Commissioner.”

The applicant relies on those cases wherein this Court has held the order of the Commissioner refusing the establishment of a branch office unreasonable, arbitrary or capricious. There is a difference in permitting an existing, already competing association to establish a branch office, and granting a license to another association to come into existence and thus increase the competition in the business. Viewing the record as a whole, I would hold that the Commissioner’s decision is reasonably supported by substantial evidence.

By “reasonably supported by substantial evidence” is meant that considering the record as a whole, the evidence is such that reasonable minds might reach the same conclusion. Neill v. Cook (Tex.Civ.App., 1963) 365 S.W.2d 824, 831, writ refused n. r. e.

I would reverse the judgments of both courts below and uphold the Commissioner’s decision refusing applicant a license to operate.

WALKER and HAMILTON, JJ., join in this dissent.


source: Caselaw Access Project

author: GRIFFIN, Justice.

license: Public Domain

text:
    ROYAL INDEMNITY COMPANY, Petitioner, v. Bob MARSHALL, Jr., Respondent.
    No. A-10207.
    Supreme Court of Texas.
    March 10, 1965.

      House, Mercer, House & Brock, San Antonio, for petitioner.
    E. B. Fuller, Arthur Mitchell, Austin, for respondent.
   GRIFFIN, Justice.

Respondent Bob Marshall, Jr., as plaintiff, sued petitioner Royal Indemnity Company, as defendant, in a district court of Travis County, Texas, upon an insurance policy for damages to three of plaintiff’s used automobiles damaged by fire while in a garage owned by another and not a place of business used by plaintiff and not named in the insurance policy.

Trial was to a jury which made findings (1) that the cars destroyed were not, as contemplated by the insurance policy, in storage at 508 South Congress Avenue; (2) the cars were not on display at this address; and (3) the amount of damages was $3325.-00. Upon these answers the trial court entered judgment for the plaintiff. Upon appeal this judgment was affirmed. 378 S.W.2d 364.

We reverse the judgments of both courts below and render judgment that plaintiff take nothing.

The disposition of this case depends on the proper construction of the following endorsement attached to and made a part of the insurance policy:

2. “Named Locations — The insured represents that the specific locations named herein are all of the locations or spaces within locations owned, rented or controlled wholly or in part and used by the insured as places of display or storage of automobiles on the inception date of the policy. The company’s limit of liability for each such location shall be as stated herein.
(( * * *
“The limit of liability stated for the main sales location shall be inclusive of the limit of liability for automobiles designated in paragraph 1, ‘Property Covered,’ which are made available for the use of the owner, officers or employees and privately stored at other than the named locations, and the actual cash value of all such automobiles shall be included in the monthly statements of values reported for the main sales location.
“UNNAMED LOCATIONS—
“(a) The insured shall report to the company any other location owned, rented or controlled wholly or in part by him which he commences to use as a place of display or storage of automobiles. Prior to receiving such report, the company shall not be liable for loss occurring after the first 45 days following the commencement of such use and the company’s limit of liability at any such location shall not exceed $-.
“(b) As respects automobiles at locations other than those named herein or in another policy affording the insured insurance against loss covered hereunder or described in paragraph (a) above, the company shall not be liable for loss occurring more than 7 days after liability could first attach as respects any one location and the company’s limit of liability at all such other locations shall not exceed $-.”

The location named was at 612 North Lamar Street.

Plaintiff is a dealer in used automobiles. At the time the policy was issued he conducted his business at 612 North Lamar Street, Austin, Texas, as shown in the policy.

Shortly after the policy was issued plaintiff sold his lease and improvements at 612 North Lamar Street, but retained his cars and began business at West 5th Street and West Avenue, which was the location of his father’s business. This change in location of plaintiff’s business was communicated to defendant insurance company, and it issued a proper endorsement noting the changed location, and this endorsement was attached to the original policy held by plaintiff.

Plaintiff’s father owned a building located at 508 South Congress Avenue, Austin, Texas, which he used in connection with his business for the purpose of painting and repairing cars for sale. This process is known to the trade as a “make ready” process.

Prior to the fire, plaintiff had sent three of his used cars to this building on South Congress for painting and repair to make them ready for sale by him. The South Congress building was not a display room for the sale of cars.

Plaintiff seeks to recover on the policy because he contends that the limitation of liability set out in paragraph 2(b) whereby cars belonging to plaintiff are covered for only seven days when at locations not named in the policy and not described in paragraph 2(a) does not apply to plaintiff’s cars while they are temporarily in others’ shops for repair and not for storage or display. This reasoning is based on the premise that the word “location” as used in the endorsement must be read in connection with the practices and customs of the used car business and the nature of that business, and when so construed means only a place where used cars are stored or displayed; that it does not mean a place where used cars are repaired or “made ready.” Plaintiff says that by the issuance of the policy, defendant company agreed to insure the used car dealer and his cars in all uses relevant to his business; that in the used car business it is necessary that cars be taken from the location where they are stored or displayed for sale and taken to garages owned and controlled by others to be repaired or for other “make ready” services; that the three damaged cars were at such a place at the time of the fire, and the limitations of liability in paragraph 2(b) of the endorsement cannot be held to relieve the company of liability.

The defendant insurance company contends that paragraphs 2(a) and 2(b) of the endorsement are exclusive of each other and describe two distinct and separate coverages; and that it is not liable for the damage to the cars, suffered more than seven days after insured began to use this unnamed location.

The policy contained provisions insuring cars at “named” locations and also at “unnamed” locations. The coverage afforded at named locations does not apply in our case. The language used under this heading may throw some light upon the proper construction of that portion of the endorsement having to do with coverage afforded at “unnamed locations.”

The language used under the heading “Named Locations” affords coverage to cars at such named locations used for “places of display or storage of automobiles.” This portion of the endorsement also covers automobiles “made available for the use of the owner, officers or employees and privately stored at other than the named location.” The three damaged cars do not qualify for coverage under any of the language in the paragraph entitled “Named Locations” and plaintiff does not contend that these cars were included in the coverage provided by this part of the policy.

The next part of the policy is under the heading “Unnamed Locations.” Paragraph (a) covers any other locations “owned, rented, or controlled wholly or in part by him (the insured) which he commences to use as a place of display or storage of automobiles.” It further provides that a report of such locations shall be made to the insurer within forty-five days, and if no such report is made in such time, the insurer shall not be liable for loss occurring after the forty-five days reporting period. This provision does not afford coverage for the three damaged automobiles, because their location at the time of the fire damage was not “owned, rented or controlled wholly or in part,” by plaintiff nor was the location used by plaintiff “as a place of display or storage of automobiles.”

Paragraph (b) under this “Unnamed Locations” heading would afford coverage for the first seven days plaintiff had any automobiles located there.

The language is: “As respects automobiles at locations other than those named herein * * * ” or at other unnamed locations described in paragraph (a) “the company shall not be liable for loss occurring more then seven days after liability could first attach as respects any one location * * The locations named in paragraph (a) are those “owned, rented or controlled wholly or in part by him (the insured) which he commences to use as a place of display or storage of automobiles.”

It must follow that plaintiff’s cars were covered only by subparagraph (b) of the policy endorsement. However, this endorsement, by its plain language does not apply so as to afford coverage if plaintiff has kept his cars at this unnamed location (508 South Congress Avenue) for “more than seven days,” prior to the damages. The plaintiff’s testimony shows that plaintiff had kept the three cars at this unnamed location for more than seven days prior to the fire. There was no coverage of plaintiff’s automobiles and plaintiff cannot recover from defendant for their loss.

Plaintiff also contends that the first paragraph of the endorsement clearly sets out that it is “automobiles” that are insured and not “locations,” and that the sections dealing with “named locations,” and “unnamed locations” are obviously intended to define the places at which the dealer is doing business, displays and stores those automobiles covered by the language of paragraph 1 of the endorsement.

To give the above meaning to the word “location” everywhere it is used in the endorsement would cause a conflict between subparagraphs (a) and (b) and make sub-paragraph (b) reduce the required time from forty-five days to seven days. Subsection (a) specifically uses “location” with the meaning given the word by plaintiff, but subparagraph (b) by its language excludes its application to all locations “described in paragraph (a) above.” Paragraph (b) covers “automobiles at locations” separate and distinct from “named locations” or at “unnamed locations” not described in paragraph (a). Therefore, it covers automobiles at all locations other than those named in the endorsement and other than those not named in the endorsement but which are located on premises “owned, rented or controlled wholly or in part” by insured and “which locations he commences to use as a place of display or storage of automobiles.” The coverage of paragraph 2(b) is only for seven days. In subparagraph 2(a) the coverage is for forty-five days.

Plaintiff says that his construction of the meaning of the word “location” is a reasonable one and is the one which is prevalent in the used car business and therefore should be given by the courts so as to carry into effect the meaning of the parties to the insurance policy. Plaintiff cites the case of Frost v. Martin (Tex.Civ.App.1918), 203 S.W. 72, no writ history, to sustain his position. This case has no precedential value, but its reasoning as applied to the meaning of the word “completed” is logical and reasonable. That case involved the construction of an oil and gas lease made in 1915, when the petroleum industry in this state was in its infancy, and when the word “completed” as applied to the drilling of a hoped-for oil or gas well had no definite meaning. Not so in our case, which is an insurance policy using the word “location.” There is no uncertainty as to the meaning of this word, and the policy itself provides for named locations and defines them. It also provides for two kinds of “unnamed locations” and defines and distinguishes them. There is no ambiguity in the meaning of the word “location,” and therefore, no evidence as to its meaning was admissible or necessary.

Plaintiff contends that insurance contracts are to be strictly construed in favor of the insured and against the insurer. This rule applies in cases where the policy uses terms of doubtful meaning or where the language of the contract is ambiguous. This general rule does not affect another general rule of construction of all contracts, to-wit: that all parts of a contract are to be taken together, and that such meaning shall be given thereto as will carry out and effectuate to the fullest extent the intention of the parties. United American Insurance Co. v. Selby, 161 Tex. 162, 338 S.W.2d 160, 1st col. 164 (1960); Pan American Life Insurance Co. v. Andrews, 161 Tex. 391, 340 S.W.2d 787 (1) (1960); 32 Tex.Jur.2d 102, Ins. Sec. 54 and authorities therein cited.

Plaintiff further argues that it is a universally known fact that dealers in used cars must have them in repair shops for “make ready” work in order to sell the used cars at their best advantage. This being true and the policy covering plaintiff as a used car dealer, plaintiff says the policy should be construed to carry out this intention.

Courts cannot make new contracts between the parties, but must enforce the contracts as written. Where the terms of an insurance policy are plain, definite and unambiguous, the courts cannot vary these terms. As said by this Court in the case of British America Assurance Co. v. Miller, 91 Tex. 414, 44 S.W. 60, 62, 30 L.R.A. 545, 66 Am.St.Rep. 901 (1898): “In other words, the court will not hold that the insurance company did not intend to insure that which it expressly contracted to insure; on the other hand, courts will not so construe plain language as to make a contract embrace that which it was intended not to include.” See also Fireman’s Insurance Co. v. Alonzo, 112 Tex. 283, 246 S.W. 82 (1923); Taylor v. United States Fidelity & Guaranty Co. (Com. of App. 1926), 283 S.W. 161; and United States Fire Ins. Co. of New York v. Rothwell (Com. of App. 1933), 60 S.W.2d 759.

The policy here sued on provides for different coverages and insures automobiles at certain locations, describing and defining these locations. In the face of the policy language, we cannot change or enlarge the coverage.

Plaintiff further contends that the various provisions in the policy describing and defining “location” of automobiles are exceptions to the general coverage of all automobiles owned by plaintiff. It is contended that since defendant did not specifically plead these exceptions under Rule 94, Texas Rules of Civil Procedure, defendant waived any purported seven-day limitation of coverage as set out in such paragraph (b).

Defendant is not seeking to avail itself of any exception to its general hazards insured against. It has taken the position that the burden was on plaintiff to plead and prove facts showing that the damages done to his used automobiles was within the coverage provided in the insurance policy. Rule 94, Texas Rules of Civil Procedure, does not apply here, and defendant could resist plaintiff’s cause of action without specifically pleading the coverage provisions of the policy. Defendant denied that the policy and endorsements “covered the loss complained of * * This was sufficient. Bethea v. National Casualty Co. (Tex.Civ.App.1957), 307 S.W.2d 323, writ refused.

At the close of the evidence, the defendant filed in the trial court its motion for an instructed verdict. This motion should have been sustained.

The judgments of both courts below are reversed and judgment here rendered that plaintiff take nothing.


author: POPE, Justice. GREENHILL, Justice

text:
    TEXAS & NEW ORLEANS RAILROAD CO., Petitioner, v. E. H. ARNOLD, Respondent.
    No. A-10374.
    Supreme Court of Texas.
    Feb. 24, 1965.
    Rehearing Denied and Dissenting Opinion Filed March 24, 1965.

      Nat H. Davis, Conroe, Baker, Botts, Shepherd & Coates, McGregor, Sewell, Junell & Riggs, Houston, for petitioner.
    McClain & Harrell, Conroe, Helm, Jones, Pletcher & Winkelman, Houston, for respondent.
   POPE, Justice.

E. H. Arnold sued Texas & New Orleans Railroad Company under the Federal Employers’ Liability Act and obtained a judgment on a verdict for $90,000 for injuries to his back. The Court of Civil Appeals affirmed. 381 S.W.2d 388. Railroad, petitioner here, urges a reversal because the trial court submitted two issues too broadly, improperly defined the term “suitable equipment,” and plaintiff’s attorney engaged in prejudicial argument in telling the jurors the effect of their answers to the issues. We are inclined to the view that these points would not require a reversal, but before we reach them we are faced with Arnold’s motion to dismiss Railroad’s appeal. Arnold insists that Railroad did not timely perfect its appeal to the Court of Civil Appeals, and for that reason, the Supreme Court has no jurisdiction. Texas State Board of Examiners in Optometry v. Carp, 162 Tex. 1, 343 S.W.2d 242. More specifically, Arnold contends that Railroad’s motion for new trial was overruled by operation of law on September 23, 1961, and the record was not filed in the Court of Civil Appeals until November 27, 1961, which was five days too late. The important dates are as follows:

June 26, 1961 Final judgment.
July 5 Original motion for new trial filed.
July 22 Amended motion for new trial filed.
August 19 Written agreement filed to extend time for presentment and determination to September 23.
September 22 Amended motion for new trial presented and taken under advisement.
September 23 Period of extension under August 19 agreement expired.
September 29 Trial judge signed nunc pro tunc order as of Sept. 22 extending time for determination to September 30.
September 30 Trial court overruled amended motion for new trial.
November 27, 1961 Record filed in Court of Civil Appeals.

Arnold’s contention is that Rule 329b, Texas Rules of Civil Procedure, required the trial court’s determination of the amended motion within forty-five days from the date of filing the original or amended motion, unless there was an agreed extension of time in compliance with that rule. Arnold says that only one such agreement was made and it postponed the determination to and including September 23. Railroad urges that there was a second postponement, because counsel for both parties on September 22 agreed in open court to another postponement until September 30, and the agreement was dictated into the record.

On September 22, within the period of the first agreed extension, counsel for both parties were in court in connection with Railroad’s motion for new trial. The court reporter recorded this occurrence:

“Mr. Sewell: It is agreed the Court can sign an order extending the time until next Saturday?
“Mr. Jones: We certainly want to accommodate the Court.
(Discussion off the record)
“Mr. Sewell: Let the record show that pursuant to agreement of both sides, the Court has extended the time for determination of the motion which was presented this morning to and including Saturday, September the 30th 1961.”

On September 29, the trial judge signed an order which first recited the above agreement and then ordered that the “time for the determination of the Defendant’s Amended Motion for New Trial in this cause be, and the same is, hereby extended to and including the 30th day of September, 1961.” He ordered it filed by the Clerk as of September 22, “the date of the agreement in open court of counsel for this extension of time for the determination of said motion.” After the record was in fact filed with the Court of Civil Appeals, Arnold moved to strike it and for a dismissal of the appeal. The court reporter then transcribed his notes concerning the agreement and he certified to their correctness on December 21, 1961. The trial court ordered the reporter’s notes and certificate transmitted for filing as a supplemental transcript to the Court of Civil Appeals. On January 2, 1962, this was done. Railroad argues that these facts, taken with Rule 11, constituted a written agreement within the meaning of Rule 329b. Rule 11 and the pertinent portions of Rule 329b are:

Rule 11: “No agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.”
Rule 329b. * * * 3. “All motions and amended motions for new trial must be determined within not exceeding forty-five (45) days after the original or amended motion is filed, unless by one or more successive written agreements of the parties in the case filed with the clerk of the court the decision of the motion is postponed to a day certain specifically set out in any such agreement. Any such day certain shall not be more than ninety (90) days after such original or amended motion is filed.”
4. “It shall be the duty of the proponent of an original or amended motion for new trial to present the same to the court within thirty (30) days after the same is filed. However, at the discretion of the judge, an original motion or amended motion for new trial may be presented or hearing thereon completed after such thirty (30) day period. Such delayed hearing shall not operate to extend the time within which the original or amended motion must be determined, unless such time be extended by agreement as provided for in the preceding subdivision of this Rule. * * * ”

Rule 11 recognizes two kinds of enforceable agreements, those that are in writing, signed and filed with the papers, and those made in open court and entered of record. Even though we construe Rules 11 and 329b together, as Railroad insists we should, the latter rule makes specific requirements with respect to motions for new trial. Rule 11 recognizes an agreement made in open court, but Rule 329b omits that form of agreement entirely. The purpose of Rule 329b is made even clearer when we compare its requirements for extension agreements before and after the date of the amendment to Section 3 of Rule 329b which was effective January 1, 1961. Before that date the rule required merely a “written agreement of the parties”; afterwards, it required not only a written agreement but also that it be “filed with the clerk.” We hold that the unsigned agreement dictated into the record is not a written agreement as required by Sections 3 and 4 of Rule 329b.

Railroad did not timely file with the clerk any written agreement. The notes of the court reporter were not transcribed and filed with the district clerk until December 27. Moreover, it was not the intent of Rule 329b, as amended, to make a court reporter’s notes the same thing as an agreement signed and filed with the clerk. One seeking to determine the status of a pending appeal, or a clerk who must determine whether an appeal is timely taken, should find his answers in the documents that are timely on file in the clerk’s office, and not in the untranscribed notes of the court reporter.

Rule 329b, as amended, in its requirement that extension agreements be filed with the clerk, made that step consistent with the requirements for other documents which constitute steps in the appeal of a cause. Timely filing with the proper clerk is necessary in the case of an original motion for new trial, Jones & Sons v. Republic Supply Co., 151 Tex. 90, 246 S.W.2d 853; an affidavit of inability to pay costs, Rule 356(b), Fugitt v. Slay, Tex.Civ.App., 329 S.W.2d 358, error dism.; the record on appeal to the Court of Civil Appeals, Matlock v. Matlock, 151 Tex. 308, 249 S.W.2d 587; a motion for rehearing, State Board of Morticians v. Cortez, 157 Tex. 649, 308 S.W.2d 12; and an application for writ of error, Gulf Coast Rice Mills v. Orkin Exterminating Co., 162 Tex. 329, 347 S.W.2d 250.

A judge’s order which fails to meet the requirements for a written agreement signed by the parties and which is not timely filed with the clerk is not a compliance with Rule 329b.

Railroad relies upon Texas Employers’ Ins. Ass’n v. Martin, 162 Tex. 376, 347 S.W.2d 916, in support of its contention that the open-court agreement, when recorded by the court reporter and construed in the light of Rule 11, excused the late filing of the agreement. That decision dealt with Rule 329b prior to- its 1961 amendment which added the specific requirement that the agreement be filed with the clerk. It also stands for the proposition that an agreement made in time but filed too late is not in compliance with the rule.

We therefore are forced to the conclusion that Railroad’s amended motion for new trial was overruled by operation of law after September 23, and the Court of Civil Appeals should have dismissed the appeal.

The appeal is dismissed.

GREENHILL, Justice

(dissenting).

I respectfully dissent because of the dismissal of the appeal.

In my opinion, for the reasons hereinafter set out, the appeal should not have been dismissed. I would affirm the judgments of the courts below. Under the broad holdings of the Supreme Court of the United States in F.E.L.A. cases, the jury issues with regard to the railroad’s failure to furnish suitable equipment to the plaintiff, answered by the jury favorably to the plaintiff, will support the judgment for the plaintiff. Moreover, in view of that Court’s approach to F.E.L.A. cases, I would not reverse on the argument of plaintiff’s counsel to the jury.

I cannot agree that the appeal was lost for failure to file the record in time. As this Court’s opinion shows, the trial judge wanted additional time to study the motion for new trial. Counsel for both parties were prepared and ready, but the judge needed additional time. Counsel for both parties wanted to oblige the court, and so stated in open court. Both were willing for the time to be extended for the benefit of the trial judge. Whereupon, counsel for defendant, in open court, while the matter was being considered, stated:

“Let the record show that pursuant to agreement of both sides, the Court has extended the time for determination of the motion which was presented this morning to and including Saturday, September the 30th 1961.”

The agreement was reduced to writing by the Court reporter and appears in the record. It is shocking to me that this gentlemen’s agreement, made in open court, at the request and order of the court, should not be binding. I would construe Rule 11 with Rule 329b and would hold that the record was filed in time.


author: BELCHER, Commissioner.

text:
    Jackson Johnnie MILLER, Appellant, v. The STATE of Texas, Appellee.
    No. 37843.
    Court of Criminal Appeals of Texas.
    March 3, 1965.
    Rehearing Denied April 7,1965.
    Allen, Bowles & Rogers, by John C. Rogers, Dallas, (on appeal only), for appellant.
    Henry Wade, Dist. Atty., John Emmett, Curtis Clover and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

Upon a trial before the court without a jury, the appellant was convicted for unlawfully carrying a pistol; the punishment, sixty days in jail.

Officer Witherspoon testified that after stopping the appellant about 7 A.M. for the offense of speeding while driving an automobile upon a public street in Dallas, he found on the front seat, a pistol containing two cartridges, and elsewhere in the automobile a shotgun and a partially filled bottle of whiskey; that the appellant admitted ownership of the pistol, which appeared to be in firing condition. The officer expressed the opinion that the appellant was intoxicated.

The appellant, testifying in his own behalf, stated that he lived in Lufkin and was employed as a road driver of large truck vans for a motor freight line; that he arrived in Dallas about one week before his arrest there for the instant offense. After his arrival he began driving a truck. He stated that he had brought the pistol to Dallas to have it repaired, but had not been in Dallas at any time the gun shops were open; that he was arrested between 6 and 7 A.M., while on his way back to his home in Lufkin.

The wife of the appellant testified that she had purchased the pistol and had given it to her husband to have repaired in Dallas.

Appellant contends that the evidence is insufficient because there was no evidence to rebut his defense that he was traveling and that he was carrying the pistol for repair.

When the judge of a court is sitting as the sole trier of the facts, he is the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony. Therefore the judge was authorized to accept or reject any or all of the testimony of the appellant and his wife. 24 Tex.Jur.2d 394, Sec. 725; Lopez v. State, 356 S.W.2d 674; Gray v. State, Tex.Cr.App., 379 S.W.2d 910; Gray v. State, Tex.Cr.App., 382 S.W.2d 481.

The evidence is sufficient to support the conviction, and, no error appearing, the judgment is affirmed.

Opinion approved by the Court.


author: McDONALD, Presiding Judge. WOODLEY, Judge MORRISON, Judge. WOODLEY, Judge

text:
    Reggie C. MADELEY, Appellant, v. The STATE of Texas, Appellee.
    No. 37001.
    Court of Criminal Appeals of Texas.
    Jan. 6, 1965.
    On Rehearing March 3, 1965.
    Second Motion for Rehearing Denied April 7, 1965.
    John W. O’Dowd, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough, and Erwin G. Ernst, Asst Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   ON STATE’S MOTION FOR REHEARING

McDONALD, Presiding Judge.

Our prior opinions on original submission and on appellant’s motion for rehearing are withdrawn, and this one substituted in lieu of them.

The conviction is for burglary of a private residence at night; the punishment, enhanced under Art. 63, Vernon’s Ann.P.C., by reason of two prior convictions for felonies less than capital, life imprisonment.

It was shown by the state’s evidence that the prosecuting witness, Jeanne Douglass, lived in apartment #63 of the Royal Windsor apartments at 5133 Richmond Avenue in the city of Houston. On the night in question the witness retired around midnight, at which time the door to her apartment was closed. Later in the night she awakened and saw a person, who appeared to be a man, leaving the apartment. She got up, locked the door, and proceeded to call the police. While using the telephone, two figures, who looked like a man and a girl, appeared at her door. The witness also observed her purse, which she had placed upon a chair when she retired, lying partially open on the floor. Nothing was missing from the purse. Around 2:30 a. m., Officers Smelley and Reed arrived upon the scene in response to a call. As they approached, the officers observed a car being driven away from the apartments onto Richmond Avenue, and stop. They then proceeded to the vehicle and found the appellant and a girl companion seated therein. The two were placed under arrest.

Following his arrest, appellant, after being duly warned, made and signed a written confession to Officer E. W. LaFont, which was introduced in evidence by the state. In his confession appellant stated, in part, as follows:

“ 'On Wednesday, February 27, 1963, about 2:AM a friend was driving me down Richmond Ave., when I spotted some apartments, and I asked this friend to stop the car and I got out, and went up to these apartments, which are in the 5100 block of Richmond Ave. and started checking doors. At 5133 Richmond Ave. Apt. 63, I found the door unlocked, and went in this apt. through the sliding glass door, and found a purse on a small table next to the bed. I picked this purse up and started out the door when I heard some one drive up, and as I did not want to be caught with this purse in my possession I put the purse down next to the door and left the apt. and returned to the car and left.
“ ‘About 15 minutes later while we were sitting in the car I were arrested by uniform__ officers. We had parked the car at the other end of the block from this apt. * * * ’ ”

In making proof of the two prior alleged convictions, the state offered in evidence certified copies from the records of the Texas Department of Corrections of a judgment and sentence in Cause No. 9114 in the Special 9th District Court of Montgomery County, wherein the defendant was convicted, on September 1, 1952, of the offense of “Forgery-Making &' Passing a False instrument in writing” and a judgment and sentence in Cause No. 79322 in the Criminal District Court of Harris County, wherein the defendant was convicted, on April 5, 1957, of the offense of robbery by assault.

Proof was made by the testimony of an expert witness, who compared appellant’s known fingerprints with those appearing in the prison records, that appellant was the person so convicted in the two cases.

Appellant concedes that the evidence is sufficient to sustain the jury’s verdict finding him guilty of the primary offense, but insists that his punishment as an habitual criminal cannot be sustained because the judgment of conviction in Montgomery County, in 1952, used to enhance his punishment, is void.

We agree with appellant that the Montgomery County sentence did not follow the judgment. The judgment ordered that “he be punished by confinement in the State penitentiary for a term of not less than three years”. The sentence pronounced upon the judgment ordered that appellant be confined in the penitentiary “for a term of not less than Two nor more than Two years.” It is apparent that the sentence did not follow the judgment and could not have been reformed because the judgment entered against appellant in Cause No. 9114 was neither definite nor certain as to punishment assessed and, there being no verdict, was void, under the many decisions of this court. Ex Parte Traxler, 147 Tex.Cr.R. 661, 184 S.W.2d 286; Ex Parte East, 154 Tex.Cr.R. 123, 225 S.W.2d 833; Ex Parte Rodriguez, 167 Tex.Cr.R. 305, 320 S.W.2d 346.

Under the record, appellant stands convicted and his punishment enhanced to life imprisonment by virtue of the prior judgment of conviction, which is void. However, the record shows nothing to impair the prior judgment of conviction in Cause No. 79322 in the Criminal District Court of Harris County. Since appellant was convicted of the primary offense of burglary of a private residence at night and the prior conviction in Harris County was for the offense of robbery by assault, a like offense, under Art. 62, V.A.P.C. Flores v. State, 145 Tex.Cr.R. 134, 166 S.W.2d 706; Farris v. State, 155 Tex.Cr.R. 261, 233 S.W.2d 856, appellant brings himself clearly under the terms of Art. 62 V.A.P.C. Fairris v. State, 171 Tex.Cr.R. 416, 350 S.W.2d 935; concurring opinion by Judge Woodley in Gibbb v. State, 169 Tex.Cr.R. 608, 336 S.W.2d 625.

We have construed the maximum punishment for the offense of burglary of a private residence at night to be 99 years by our opinion in Joseph v. State, Tex.Cr.App., 367 S.W.2d 330, and we have also made a similar holding in determining the maximum punishment for the offense of assault to rape with a prior conviction, in Brown v. State, 171 Tex.Cr.R. 167, 346 S.W.2d 842.

The applicable punishment for the primary offense being 99 years, which has been determined by this Court to be the maximum under Art. 62, V.A.P.C., the judgment is reformed from life imprisonment to a term of 99 years confinement in the state penitentiary. Dozier v. State, 167 Tex.Cr.R. 84, 318 S.W.2d 80.

As reformed, the judgment is affirmed.

WOODLEY, Judge

(dissenting).

The effect of the majority holding is that there is no difference between a life sentence and a sentence of 99 years, yet they reform the life sentence pronounced against the appellant so as to provide for his incarceration for a definite term of 99 years, and hold that to be the maximum punishment under the statute which fixes the punishment for burglary of a private residence at confinement in the penitentiary “for any term not less than 5 years.”

Life imprisonment is a punishment authorized for robbery, but not for robbery when a firearm or other deadly weapon is used. Art. 1408 P.C. It is also a punishment which is authorized for murder, rape, treason, destroying an unborn child, and for a third conviction for sale of narcotics.

Other statutes authorize confinement in the penitentiary for an unlimited term but do not provide for life imprisonment. These include Art. 1190- P.C., attempt to rape; Art. 1162 P.C., assault with intent to rape; and Art. 1391 P.C, burglary of a private residence at night (the primary offense here involved).

All of the above statutes are in effect rewritten by the majority opinion which follows the previous erroneous holdings that 99 years is the maximum term of years which may be assessed for burglary of a private residence at night (Joseph v. State, Tex.Cr.App., 367 S.W.2d 330) or assault with intent to rape (Brown v. State, 171 Tex.Cr.R. 167, 346 S.W.2d 842.)

Sentences for maximum terms of more than 99 years have been affirmed by this Court.

I would overrule the state’s motion for rehearing and, in doing so, would overrule the Brown and Joseph cases.

ON APPELLANT’S SECOND MOTION FOR REHEARING

MORRISON, Judge.

The offense is burglary with two prior felony convictions alleged for enhancement; the punishment, life.

Our attention has now been addressed to an error not heretofore discussed which we conclude is determinative of this appeal. When appellant’s confession was offered in evidence, at counsel’s request the jury was retired to allow the court to hear evidence on the question of the voluntariness thereof. Officer La Font was heard by the court on the question. He testified that two other officers, whom he named, had delivered appellant to him prior to the making of the confession and had asked him to take appellant’s confession. He further stated that a clerk, whom he named, was with him and participated in the taking of the confession. Appellant’s counsel asked that the three witnesses whom Officer La Font had mentioned be called so that he might examine them, but the court refused to hear anyone but Officer La Font. In this he fell into error. In Melendez v. State, 166 Tex.Cr.R. 391, 314 S.W.2d 104, we said:

“In the recent cases of Davis v. State [165 Tex.Cr.R. 456] 308 S.W.2d 880, and Law v. State [165 Tex.Cr.R. 542] 309 S.W.2d 443, the rule was re-stated by this court in its opinions reversing the convictions because of the courts’ action in refusing the request of the accused that he be permitted in the absence of the jury to introduce evidence showing the facts and circumstances surrounding the making of the written confession in order that the court might determine in the first instance whether the written confession offered in evidence was admissible. See also 18 Tex. Juris., 188, Sec. 103; 2 McCormick and Ray on Evidence, 2d Ed., p. 100, Sec. 1222; Cavazos v. State, 143 Tex.Cr.R. 564, 160 S.W.2d 260; Brown v. U. S., 5 Cir., 228 F.2d 286.”

Appellant’s second motion for rehearing is granted; the judgment of affirmance is set aside; and the judgment is reversed and the cause is remanded.

WOODLEY, Judge

(concurring opinion on Appellant’s Second Motion for Rehearing).

The contention of the appellant now sustained by the majority was advanced in connection with the claim that the trial court erred in failing to affirmatively adjudicate the issue of the voluntary nature of appellant’s confession prior to its introduction in evidence before the jury.

There is no merit in either claim of error.

As I understand the record, appellant was seeking to have witnesses summoned that he might interrogate them before the court in the jury’s absence and learn from them whether or not they could furnish any fact showing or tending to show that the statement was not voluntarily made in accordance with the statute.

The majority confuse interrogation for the purpose of developing evidence at the trial and interrogation in an effort to discover evidence. No evidence contrary to the witnesses’ testimony that it was voluntarily made was introduced and neither appellant nor his counsel had any such evidence to offer.

I concur in the reversal of this conviction for the reason pointed out in my dissent to the granting of the State’s motion for rehearing.

Appellant’s second motion for rehearing directs attention to the portion of the opinion in Brown v. State, 171 Tex.Cr.R. 167, 346 S.W.2d 842, wherein this Court said:

“Only if we should hold that the Legislature has provided no maximum punishment for the offense of assault with intent to rape would we be authorized to reverse.”

I would also direct attention to the following quotation from the opinion in Brown v. State:

“While it may be that a term of years greater than 99 could be assessed by a jury in an ordinary assault with intent to rape case, a sentence of 99 years is in excess of the expected life span of any defendant, and any greater number of years assessed would be without significance.”

Appellant’s second motion for rehearing should be granted and the judgment of conviction reversed because no definite punishment is fixed by law and the jury assessed none for the offense charged.


author: MORRISON, Judge.

text:
    Walter Gray CARTER, Sr., and Geneva Elizabeth Carter, Appellants, v. The STATE of Texas, Appellee.
    No. 37868.
    Court of Criminal Appeals of Texas.
    Feb. 24, 1965.
    Rehearing Denied April 7, 1965.
    John Cutler, Houston, for appellants.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Asst. Dist. Atty., Houston, and LeOn B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is the possession of lewd photographs as denounced by Article 527 Vernon’s Ann.P.C.; the punishment against each appellant, a fine of $100.00.

No statement of facts accompanies the record.

Appellant attacks the constitutionality of the above Act on the following grounds:

(1) That the second paragraph of Section 5 of the Act exempts certain classes of motion pictures and daily and weekly newspapers from the operation of the statute. Such a classification is not unreasonable or arbitrary, and within the power of the Legislature to exclude, Ex Parte Tigner, 139 Tex.Cr.R. 452, 132 S.W.2d 885.

(2) That Section 3 sets the area for determination of contemporary community standards at an area not less than the State itself. As we read this section it prescribes the same standard as is set forth in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498; and is followed by this Court in Baxter v. State, Tex.Cr.App., 363 S.W.2d 475.

(3) That Section 6 renders the -entire statute uncertain and gives the prosecutor election to proceed criminally or civilly against one violating the terms of the Act. Appellant cites no authority in support of his contention and we are aware of none.

No reversible error appearing, the judgment is affirmed.


text:
    Ex parte Manuel ESCARREGA.
    No. 37775.
    Court of Criminal Appeals of Texas.
    March 24, 1965.
    George Rodriguez, El Paso, for appellant.
    Edwin F. Berliner, Dist. Atty., Jack N. Ferguson, Asst. Dist. Atty., El Paso, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

This is an appeal from an order of the District Court of El Paso County remanding appellant to the custody of the Sheriff for delivery to the agent of the State of California.

The warrant of the Governor of Texas was introduced in evidence and makes out a prima facie case authorizing extradition. Ex Parte Wiggins, Tex.Cr.App., 289 S.W.2d 278.

This Court is in no position to pass on appellant’s contention that the State of California lost jurisdiction over his person when they relinquished him to the Federal Authorities. It is for the Courts of the State of California and not this Court to adjudicate the question of their jurisdiction. Ex Parte Garcia, 167 Tex.Cr.R. 159, 319 S.W.2d 328, and cases there cited.

The Kansas and Oklahoma cases cited by appellant do not support his contention.

The judgment of the trial court is affirmed.


text:
    Robert Earl TIMMONS, Appellant, v. The STATE of Texas, Appellee.
    No. 38005.
    Court of Criminal Appeals of Texas.
    March 24, 1965.

      Pat McDowell, Dallas, for appellant.
    Henry Wade, Dist. Atty., Walton Bondies, John Vance and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for felony theft with a prior conviction for the same offense alleged for enhancement; the punishment, ten years.

David Miles, an employee of Wade Furniture Company, testified that he saw the appellant, wearing khaki pants and a coat, come out of the furniture company building and run along a sidewalk toward him until he (appellant) turned into a used-car lot. After entering the store and learning that the cash drawer had been broken into, Miles walked toward the used-car lot, where he saw the appellant, still wearing the same coat, looking into an automobile like he was a prospective purchaser. The third time Miles observed the appellant, he was standing on a street corner. Charles Rad-ford, manager of Wade’s Store, also saw the appellant at that time. When Radford called to him, the appellant again began running, with Radford in pursuit. Appellant ran in between some buildings. Miles last saw the appellant, dressed in khaki pants and white shirt but no coat, as he entered an alley and escaped. After going a short distance into the alley Miles and Rad-ford found a coat on the ground behind a store. Two days later, Miles identified the appellant in a police line-up as the person he had seen run from the furniture store. Miles testified that the coat found in the alley was the same coat the appellant was wearing when he approached him on the used-car lot.

Charles Radford, manager of Wade’s Furniture Store, testified that about 11 A.M. the lock was broken on the cash drawer in the store and that $82 in money and two checks were taken therefrom without his consent. In company with David Miles, he saw a person on the street whom Radford, while testifying, identified as being the same person as the appellant. When Radford called to the appellant on the street, he began running and soon eluded him. After a brief time, the appellant came from an alley behind a furniture store. When he emerged from the alley he was facing Radford, and upon seeing him appellant again ran, and escaped. At this time, appellant was wearing a white shirt and khaki trousers. Upon going along the alley back of the furniture store, Radford found a coat. At the trial he identified a coat as the one he found behind the store, and Radford testified that it was the same coat the appellant was wearing when he first saw him on the street.. The lock which was in the coat found behind the store was identified by Radford at the trial as the lock that was on the cash drawer before it was pried open.

Officer Bielharz testified that after talking to Miles, Radford, and another person, he notified the police dispatcher that a certain described person had gotten into a black and white taxicab No. 27. With Miles and Radford, Officer Bielharz examined the coat found behind the furniture store. In the coat Officer Bielharz found a screwdriver, a hasp, and a lock, which he took to Officer Dryke, who had arrested the appellant about ten blocks away in a taxicab.

The testimony of Officer Dryke reveals that he received a radio dispatch giving a certain description of a suspect who had entered a black and white cab No. 27. Shortly thereafter, Dryke stopped a cab, as described, but only the driver could be seen. When asked about his “fare”, the cab driver motioned Dryke toward the rear of the cab, the door to which opened as Dryke reached for it. Inside the cab, Dryke saw a man wearing a white shirt and khaki pants lying on the floor board and trying to get out. This man told Dryke that his name was L. A. Holmes, but Dryke soon learned that his name was in fact Robert Earl Timmons (appellant). Upon a search of the appellant, Dryke found $22 in bills, several wrenches, some “change” and a billfold. In searching the cab, Dryke found $60 in currency which was “crumpled up.”

The prior conviction as alleged, was sufficiently shown by record evidence; and the identity of the appellant as being the same person convicted was shown by a fingerprint expert. Moreover such conviction was admitted by the appellant while testifying in his own behalf.

Testifying in his own behalf, the appellant stated that after working at a used-car lot until about 11 A.M., he bought some groceries which he took home in a taxicab, and while he was returning to work the officer stopped the cab. Appellant denied ever being in the furniture store, and stated that the $22 was his and that he had no part in the theft from the cash drawer; that he was wearing blue jeans and a sweater at the time of his arrest, and had never owned the coat exhibited at the trial; and that he was sitting on the seat instead of the floorboard when the cab stopped. He denied seeing any money on the floorboard and stated that the wrenches belonged to him but not the screwdriver.

The facts and circumstances in evidence are sufficient to warrant the jury’s finding that the appellant is guilty as charged.

Appellant contends that the trial court erred in permitting the state to prove before the jury that he had been previously convicted of a felony.

In the absence of a stipulation resolving the issue of the prior conviction proof of the prior conviction as alleged in the indictment was proper. Pitcock v. State, Tex.Cr.App., 367 S.W.2d 864; Ex parte Reyes, Tex.Cr.App., 383 S.W.2d 804.

The judgment is affirmed.

Opinion approved by the Court.


author: McDONALD, Presiding Judge.

text:
    Leslie Thomas WRIGHT, Appellant, v. The STATE of Texas, Appellee.
    No. 38017.
    Court of Criminal Appeals of Texas.
    March 24, 1965.

      Paul W. Wisdom, Jr., Dallas (court appointed), for appellant.
    Henry Wade, Dist. Atty., Tom Reese and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The appellant was convicted for the offense of burglary, the punishment assessed by the jury was 10 years in the penitentiary.

The state’s evidence shows that Harold Bell Payne, a taxi driver, saw a man inside a building, at 2:30 in the morning of May 19, 1964, throwing suitcases through a broken transom onto the street. Payne was also a reserve police officer and immediately called his dispatcher and told him to call the police and send a squad car to 1711 Elm Street because he saw a burglar in the building. Then he backed up to where he had observed the burglar and saw the appellant standing outside the building with three suitcases. The appellant hailed the cab and asked him to take him home. Payne was attempting to stall their departure until the police arrived, and after some 3 to 5 minutes saw a police car turn on Elm Street driving away from him. He started after the car blinking his lights and blowing his horn to get its attention. When the police car stopped Payne informed the policemen that he had a burglar in the backseat of his cab with the goods on him. At this time the policemen arrested appellant, who fought momentarily to get away. Upon examining the appellant the policemen discovered that he had several watches on his arms. The officers asked appellant where he had obtained the watches and he told them at the jewelry store. He also told them, after inquiry, how he had gained entrance to the jewelry store. He stated that he had broken the glass in the Orange Inn, an adjoining store to the jewelry store, and knocked a hole in the wall, after which he took watches and jewelry.

Norman Ray, owner and operator of J. H. Ray Jewelry Company, testified that the J. H. Ray Jewelry Store is a house consisting of four walls, a roof, a floor and is capable of being locked and that it was locked on May 19, 1964, and that he occupied and controlled said place of business and that all watches and jewelry within said store were in his possession as corporeal personal property and that he had not given anyone permission to break into his store and take away any of his property.

The state also offered fingerprints into evidence that had been taken from the broken glass from the transom, pictures of the broken transom, and the hole in the wall of the jewelry store, all of which were identified by police officers as being exactly as they were on the night of their investigation. Detective Williams testified that he had obtained some fingerprints off the broken glass from the transom over the front door of the Orange Inn. Lt. Day of the Dallas Police Department, testified that he was assigned to the Identification Bureau and that among his duties were the comparison of fingerprints. After being properly qualified as an expert witness, he identified State’s Exhibit No. 7 as a set of appellant’s fingerprints and palm prints that he made on May 19, 1964; that he made a comparison of the fingerprints in State’s Exhibit No. 7 with those in State’s Exhibit No. 5, and that in his opinion the fingerprints were made by the same man.

The appellant did not testify or offer any evidence in his own behalf.

In his brief the appellant’s counsel raises three contentions. The first alleges that the trial court erred in overruling appellant’s objection to the testimony of one of the arresting officers and refusing to instruct the jury to disregard it. The officer stated, “We got him out and handcuffed him, and he had watches all up and down both arms. I asked him where he got them and he said he got them at a jewelry store.” Appellant’s counsel also objected to the testimony of the officers as to what appellant told them about how he had entered the Orange Inn, and the jewelry store. These objections were based on the proposition that the appellant was under arrest, and any statements he made at that time must follow the confession statutes, Arts. 727 and 727a, Vernon’s Ann.C.C.P. In the case of Heath v. State, Tex.Cr.App., 375 S.W.2d 909, this court said: “Statements of the appellant though in the nature of a confession, which are a part of the res gestae are admissible though he be under arrest when the statements are made.” And in Clifton v. State, 156 Tex.Cr.R. 655, 246 S.W.2d 201, this court cited with approval 18 Tex.Jur., Sec. 193, p. 313, “If such acts or declarations were part of the res gestae they are admissible notwithstanding the fact that they may not be admissible as confessions or as admissions, for the rule of res gestae is independent of, superior to and cannot be limited by the rules relating to confessions or admissions after arrest.” Also see Gonzales v. State, Tex.Cr.App., 373 S.W.2d 249.

In the instant case the appellant was arrested approximately 5 minutes after he was seen in front of the Orange Inn with three suitcases, and made the statements to the officers approximately 5 minutes after he was arrested, only one block from the scene of the crime.

Appellant s contention is overruled along with his other two contentions which relate to the same law applicable as above stated.

Appellant himself has favored us with a letter in the form of a “personal appeal on a writ of error”. In it he contends that his counsel did not have time to sufficiently prepare the case as he was appointed only the day prior to the date of the trial. The transcript contains a written waiver of the 10 days in which to prepare for trial signed by appellant and his counsel as provided for in Art. 494, V.A.C.C.P. All other contentions made by appellant have been carefully considered and reflect no error.

The evidence is sufficient to sustain the jury’s verdict, and finding no reversible error the judgment is affirmed.


text:
    W.C. BYRD, Appellant, v. The STATE of Texas, Appellee.
    No. 37986.
    Court of Criminal Appeals of Texas.
    March 24, 1965.

      Robinson & Wilson, by James E. Robinson, Abilene, J. W. Reid, Abilene (on appeal only), for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

This is a conviction for misdemeanor theft of thirty dollars in currency; the punishment, a fine of $250 and one year ir. jail.

This case was submitted to the jury upon the theory of theft by false pretext as denounced by Art. 1413, P.C. The provisions of said Article which are applicable to this case read as follows:

“ * * * or with any intent to deprive the owner of the value thereof, and appropriate the property to the use and benefit of the person taking, and the same is so appropriated, the offense of theft is complete

It will be noted that, under these provisions of the statute, the offense of theft is not complete until the property has been appropriated by the accused to his own use and benefit. The intent to appropriate the property does not suffice. Black v. State, 141 Tex.Cr.R. 468, 149 S.W.2d 968; Schoenbeck v. State, 163 Tex.Cr.R. 14, 288 S.W.2d 121.

In submitting this case, the trial court failed to require the jury to find that, in order to convict, the property taken must be appropriated by the accused to his own use and benefit.

Instead, the charge, as given, made appellant’s guilt depend upon his intent to appropriate the property to his own use and benefit. This instruction was error.

Proper objections and exceptions were made and reserved to the charge as submitted to the jury.

For the error pointed out, the judgment is reversed and the cause is remanded.

Opinion approved by the Court.


author: MORRISON, Judge. DICE, Commissioner.

text:
    Gay ARNOLD, Appellant, v. The STATE of Texas, Appellee.
    No. 37197.
    Court of Criminal Appeals of Texas.
    Jan. 6, 1965.
    Rehearing Denied Feb. 24, 1965.
    Second Motion for Rehearing Denied April 7, 1965.

      Wendell S. Loomis, Houston, Clyde W. Woody, Houston (On Motion for Rehearing Only), for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Cletus A. Davis and Ruben W. Hope, Jr., James C. Brough, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is aggravated assault; the punishment, 180 days in jail and a fine of $250.00.

Our prior opinion is withdrawn and the following is substituted in lieu thereof.

The facts reflect that appellant, age 21, kicked a 15 year old boy in his groin. The information alleged and the court submitted the case to the jury under Subdivision (8) of Article 1147, Vernon’s Ann.P.C. which makes an assault aggravated when committed with premeditated design and by use of means calculated to inflict great bodily injury. The early case of Pinson v. State, 23 Tex. 579, is authority for the rule that the grounds of aggravation alleged must be established by the testimony. In the relatively recent case of Ohlrich v. State, 162 Tex.Cr.R. 502, 287 S.W.2d 478, we had occasion to discuss the facts necessary to be proven in a prosecution under Subdivision (8) of Article 1147, supra, one of them being “(3) with premeditated design, that is with fixed purpose formed in the mind, and not upon a rash, unconsidered impulse.” In Ohlrich v. State, supra, the trial was before the court and we held that since in such cases all disputed facts must be resolved in favor of the judgment, the facts were sufficient to support the trial court’s finding that the assaults were premeditated. But such is not the case before us here. In the case at bar the injured party walked across the street to where appellant, whom he did not know, was seated in an automobile with the injured boy’s brother standing near by. When appellant, who had been drinking, asked the injured boy to “Come here” in order to show him a straw hat which had the top cut out, he demurred and after a few words appellant got out of the automobile and kicked the injured boy one time. While serious injury was shown which would have authorized a finding of guilt under Subdivision (6) of said Article, the case was submitted to the jury under Subdivision (8), and we have concluded that the evidence is insufficient to support a finding that such act was not a “rash, unconsidered impulse.”

For the reasons stated, our prior order of affirmance is set aside; the judgment is reversed and the cause is remanded.

ON STATE’S MOTION FOR REHEARING

DICE, Commissioner.

In its motion for rehearing, the state challenges our consideration of the statement of facts because it was not filed within ninety days after the date of giving notice of appeal, as required by Section 4 of Article 759a, Vernon’s Ann.C.C.P.

While the statement of facts was not filed with the clerk of the trial court until the ninety-third day after the date notice of appeal was given, an examination of the same shows that it was agreed to by counsel for the state and the appellant on the ninety-second day, as evidenced by their signatures affixed thereto. Immediately following such agreement, there appears an order, signed by the trial judge, which reads: “The Clerk of the Court is hereby ordered to file this record.”

It is apparent that the trial judge’s order was signed after the statement of facts had been agreed to and signed by counsel for the state and the appellant and was an approval of the same after the ninety-day period had expired.

Under the provisions of Art. 759a, Sec. 4, supra, it is presumed that the time for filing was properly extended by the trial judge, and the statement of facts is entitled to be considered.

Richardson v. State, 170 Tex.Cr.R. 485, 342 S.W.2d 313, cited by the state, is not here applicable, because in that case there was no agreement signed by counsel immediately above the judge’s approval and signature. An examination of the record in the case reflects that the statement of facts contained a form for such an agreement, which was unsigned.

Remaining convinced that a proper disposition was made of the case in our opinion reversing the judgment of conviction, the state’s motion for rehearing is overruled.

Opinion approved by the Court.


text:
    Ex parte Olen STEPHENS.
    No. 38150.
    Court of Criminal Appeals of Texas.
    March 24, 1965.
    Daugherty, Bruner & Lastelick, by Fred Bruner, Dallas, Leon Moses, McKinney, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

This is an appeal from an order denying appellant bail, after indictment in two cases for murder with malice.

The indictments charged that appellant did voluntarily and with malice aforethought kill Willie R. Johnson and Michael Charles Blackwell by shooting them with a gun.

The evidence is sufficient to justify a finding by the trial judge that the appellant shot and killed the deceaseds, both of whom were unarmed, without any legal justification or excuse. The refusal to grant him bail is justified under the record. Ex Parte Black, 157 Tex.Cr.R. 467, 250 S.W.2d 224; Ex Parte Williams, Tex.Cr.App., 370 S.W.2d 883.

The judgment of the trial court denying bail is affirmed.