author: CALVERT, Chief Justice.

text:
    NATIONAL WESTERN LIFE INSURANCE COMPANY, Petitioner, v. William M. ACREMAN, d/b/a Acreman Construction Company, Respondent.
    No. B-346.
    Supreme Court of Texas.
    March 20, 1968.
    Phipps, Smith & Alexander, A. A. Alexander, Jr., Galveston, for petitioner.
    William J. Benardino, Conroe, for respondent.
   CALVERT, Chief Justice.

This is a suit by W. M. Acreman on a sworn account for labor and materials furnished to build a road and to establish and foreclose a mechanic’s and material-man’s lien on 160 acres of land. Henry S. Fuller, II, Gerald J. Creighton, Jr., and National Western Life Insurance Company were named as defendants in the plaintiff’s petition. Fuller defaulted and the trial court rendered judgment against him awarding Acreman a recovery of the full amount of the debt. Trial of the issues as to the other defendants was to the court without a jury and judgment was rendered establishing a mechanic’s and materialman’s lien on the 160 acres of land as security for Acreman’s debt, foreclosing the lien, and ordering the land sold to satisfy the money judgment. Creighton was in reality only a nominal party and only National Western perfected an appeal.

The court of civil appeals affirmed the trial court’s judgment in so far as it awarded Acreman a recovery against Fuller but reversed the judgment in so far as it established and foreclosed the lien on the 160-acre tract of land and remanded this phase of the case to the trial court for retrial. 415 S.W.2d 265. We reverse the judgments of the courts below on the lien phase of the case and here render judgment that plaintiff take nothing.

On February 24, 1964, Fuller, who appears to have been doing business as Statewide Properties, entered into a contract with Acreman whereby Acreman was to build a road 60 feet wide and approximately 4,350 feet long on Pine Acres Estates, a 160-acre tract of land then owned by one Sisk. Acreman began work in the early part of March and completed the road on May 22, 1964. He did not know that Fuller was not the owner of the land when the contract was executed and made no inquiry with respect to ownership until after the road was completed.

Sisk conveyed the land to Fuller by warranty deed on April 3 and the deed was recorded on April 4. National Western lent Fuller $65,000 as a part of the purchase price of the land, took his note for that sum and paid some of the money to Sisk who reserved a vendor’s lien in the deed to Fuller .to secure payment of the note. Simultaneously with execution of the deed and note, Fuller also executed a deed of trust for the benefit of National Western as additional security for the note. The deed of trust was also recorded on April 4. Also simultaneously with execution of the deed, note and deed of trust, Fuller and National Western entered into an escrow contract by the terms of which $1,500 of the $65,000 loan was to be held in escrow by National Western to ensure performance by Fuller of an agreement to construct or have constructed, within 60 days, a gravelled road 60 feet wide and extending from the west boundary line to the east boundary line of the property. Following default by Fuller in making payments on his note, Creighton, as substitute trustee, foreclosed the deed of trust lien under a power of sale, and National Western bought in the property at the trustee’s sale.

On the basis of the facts summarized, it was the position of Acreman in the trial court that he had a constitutional and a statutory mechanic’s and materialman’s lien on the property on which the road was built which was prior and superior to the lien held by National Western. The trial court agreed. The court of civil appeals held that Acreman did not have a constitutional lien; National Western’s lien was prior and superior in its inception to Acre-man’s lien; National Western had “consented” to Acreman’s lien and thus had somehow made Acreman’s lien superior to National Western’s lien to the extent of $1,500; under the provisions of Article 5458, Acreman’s lien attached to only 50 acres of the 160-acre tract; and that as to National Western, there was no evidence that Acreman had fully complied with the provisions of Article 5453 for perfecting his lien. The last holding required reversal of the trial court’s judgment on the lien phase of the case, and a remand was ordered, no doubt to afford Acreman an opportunity to prove full compliance with Article 5453. In its crucial holding the court of civil appeals said: “Construing all instruments executed on April 3, 1964, the insurance company consented to Fuller thereafter entering into a M&M lien for the construction of a road in the location agreed upon but limiting the insurance company’s liability to $1,500.”

. Acreman does not complain of the court of civil appeals’ judgment or of its holdings. National Western does. It contends that the court of civil appeals erred in holding that by execution of the various instruments it had consented to the Acreman lien and that by consenting it had given the lien a status of superiority. We agree with National Western.

For purposes of this opinion, we assume that Acreman has no constitutional lien on the land inasmuch as that holding of the court of civil appeals is not challenged. We also assume that at the time of its inception National Western’s lien was prior and superior to Acreman’s lien since no complaint is made by Acreman of that holding. We further assume that on retrial the evidence would establish compliance by Acreman with statutory procedures for perfecting his lien. With these assumptions, we reach the question which the court of civil appeals apparently regarded as controlling the parties’ rights.

The opinion of the court of civil appeals does not tell us why execution of the instruments of April 3 constituted consent by National Western to the fixing of a mechanic’s and materialman’s lien on the property. The only relevant provision of the deed of trust states only that Fuller would “not to allow to be fixed, or enter into any contract whereby there may be fixed * * * any Mechanic’s Lien or other lien of any character whatsoever” without the written consent of National Western. The provisions of the escrow agreement repel a conclusion that National Western consented to the fixing of a lien as security for labor performed or materials furnished in building a road. The contract recites that Fuller had agreed to construct a road or to have it constructed, and that National Western was authorized to withhold $1,500 from its loan of $65,000 to ensure compliance. Paragraphs 2(b) and 4 read as follows:

“2.(b) When COMPANY shall have received evidence satisfactory to itself that such roadway has been satisfactorily completed and at the place specified, COMPANY shall disburse to BORROWER the sum of ONE THOUSAND FIVE HUNDRED AND NO/100 ($1,500.00) DOLLARS from the Escrow Fund.
⅜ ⅝ ⅜ ⅜ ⅜ ⅜
“4. It is distinctly understood and agreed that this Agreement is not made for the benefit of any independent contractor, material supplier, or workman, nor is COMPANY bound by or obligated to look to any agreement by and between BORROWER and any other person or persons relating or respecting to the construction or completion of said roadway.”

The quoted provisions very clearly set aside a sum of money to be paid to Fuller personally upon satisfactory completion of the road. The fund was expressly made immune to claims of third persons, and there is no mention in the agreement that National Western consented to the fixing of a lien on the mortgaged property.

The opinion of the court of civil appeals does not indicate why the court concluded that mere consent to the subsequent fixing of Acreman’s lien on the property would make the lien superior to National Western’s lien. Mere consent by a lienholder to creation of a second lien does not make the second lien superior. Security Mortgage & Trust Co. v. Caruthers, 11 Tex.Civ.App. 430, 32 S.W. 837 (1895, no writ). There is in the record no proof of an express agreement for subordination of National Western’s lien and no evidence from which such an agreement may reasonably be inferred. Neither waiver nor estoppel is in the case by either pleading or evidence.

If Acreman had a lien on the subject property, the lien, on the record before us and in light of unchallenged holdings by the court of civil appeals, was junior and inferior to the lien held by National Western. When National Western’s lien was foreclosed, the purchaser at the trustee’s sale acquired title to the property freed of the claims of Acreman. Wilkinson v. First National Bank of Crosbyton, 118 Tex. 202, 13 S.W.2d 346 (1929); Hampshire v. Greeves, 104 Tex. 620, 143 S.W. 147 (1912); Kennard v. Mabry, 78 Tex. 151, 14 S.W. 272 (1890). It follows that Acreman has no enforceable lien against the property and that judgment should have been rendered that he take nothing in so far as he sought to establish and foreclose a lien on the property.

The judgment of the trial court awarding Acreman a money recovery against Fuller has become final and is left undisturbed. The judgment of the court of civil appeals is modified and judgment is here rendered that Acreman take nothing by virtue of his suit to establish and foreclose a lien.


source: Caselaw Access Project

author: SMITH, Justice.

license: Public Domain

text:
    UVALDE ROCK ASPHALT COMPANY et al., Relators, v. Walter LOUGHRIDGE, District Judge et al., Respondents.
    No. B-649.
    Supreme Court of Texas.
    March 6, 1968.
    See also, Tex.Civ.App., 423 S.W.2d 602.
    Dobbins, Howard & Harris, William P. Dobbins, San Antonio, for relators.
    Clemens, Knight, Weiss & Spencer, Theodore F. Weiss, Denman, Franklin & Den-man, San Antonio, for respondents.
   SMITH, Justice.

Relators, Uvalde Rock Asphalt Company, H. Randolph Brown, president of the Company, and William K. Clark, secretary of the Company, brought this original mandamus proceeding in this Court to have the trial judge expunge from the record an order for discovery. The sole question before us is whether the trial judge so abused his discretion as to render void his order for discovery which has deprived the Relators of a jury trial on the issue of whether a stockholder has a proper purpose in requesting the right to inspect the records of the corporation. We hold that the Relators’ pleadings show that they are entitled to a jury trial on this issue for the reasons to be stated later in this opinion.

A statement of the events leading up to the filing of this proceeding is in order. Respondents, John H. White, Joella White Bitter et vir, and Evelyn White Thomson et vir, Individually and as Independent Executors and Trustees under the wills of Ethel S. White, Deceased, and R. L. White, Deceased, partners doing business under the names “R. L. White Co.” and “R. L. White,” hereinafter referred to as the Whites, shareholders of record of Uvalde Rock Asphalt Company, made a written demand to inspect the books and records of Uvalde Rock Asphalt Company. The Company, by letter, refused to permit the Whites to inspect the books because “the purposes of the demand, as outlined * * are not proper and to accede to same would not be to the best interest of the Company and its Stockholders.” c'

WHITES’ SUIT IN THE TRIAL COURT FOR MANDAMUS

The refusal of the Company to permit the Whites to inspect the books precipitated the filing of a suit in the trial court by the Whites wherein they sought a writ of mandamus to compel the Company to allow the Whites “immediate access to all books, records, minutes, records of shareholders and other books and records of [the Company].” The Whites alleged in their mandamus petition that they were stockholders of record and had been for more than six months, owned over five per cent of the stock in the Company, and had proper purposes for wanting to inspect the books; thereby complying with the requirements for inspection of the books by a shareholder as established by Art. 2.44, V.A.T.S. Bus. Corp. Act. The purposes given in the request for inspection were as follows:

“The proper purposes of such examination are: a determination of the causes and reasons for the precipitous decline in profits of the corporation; to assist and help the management of the corporation to reverse the adverse trend of the company’s business and operations during recent years; to ascertain the unprofitable aspects of the company’s business and operations; to examine generally into all expenditures in order to determine their reasonableness and wisdom; to determine whether excessive compensation is being paid to officers, directors or others close to management; to determine the extent to which stockholders have participated in stockholders’ meetings and action taken at such stockholders’ meetings, and generally to inquire into the details of the corporation’s operations and practices for the purpose of protecting their investment.”

THE COMPANY’S ANSWER

The Company filed an answer in which it alleged facts showing a long but disagreeable relationship between the Whites and Uvalde Rock Asphalt Company. According to the answer, the Whites had improper purposes for wanting to inspect the books; they sought information in order to obtain a competitive advantage in the area in which the Whites and the Company were competitors and in order to be able to continue a program of studied harassment of Uvalde Rock Asphalt Company. According to the Company, the Whites sought to force the Company either to purchase the Whites’ stock in the Company at a grossly inflated price or to sell to the Whites all of the Company’s asphalt producing land at a grossly inadequate price. After filing this answer, the Company made a demand-for a jury trial on the issue of whether the Whites had proper purposes in seeking to inspect the Company’s books.

THE WHITES’ MOTION FOR DISCOVERY

Thereafter, and before a trial of the alleged proper purpose issue, the Whites filed a motion for discovery requesting the right to inspect fourteen named items, comprising virtually all of the books and records of the Company. According to the Whites, these records constituted and contained evidence material to the matter involved in this action, and good cause existed for such motion. The Company filed a motion to strike the Whites’ motion for discovery on the grounds that if the motion were granted, the Whites would be (in effect) awarded substantially all of the relief sought by them in the main suit and the Company would be denied their constitutional right to a trial by jury on the fact issues raised by their answer. The trial judge granted the motion for discovery and ordered that the Whites be allowed to inspect all fourteen items mentioned in the motion for discovery. The order of the court provided that the Company would not be required to produce and permit the inspection of books, accounts and other material pertaining to the rock asphalt phase of the Company’s business. However, “in the event the [Company] is unable to separate and segregate the books, accounts and other records pertaining to its rock asphalt business, the [Company] is ORDERED to produce and permit the inspection of the complete records and accounts of the [Company].”

THE COMPANY’S ACTION IN THIS COURT

Relators filed a petition for writ of mandamus in the Court of Civil Appeals of the Fourth Supreme Judicial District to require Judge Loughridge to expunge his Order of Discovery. The court of civil appeals dismissed the petition for want of jurisdiction. Thereafter, Relators filed an original action in this Court pursuant to Article 1733, Vernon’s Annotated Civil Statutes, seeking to have this Court issue a Writ of Mandamus ordering the respondent, Judge Walter Loughridge, to set aside his Order of Discovery as being void and to allow said case to proceed to trial.

Art. 2.44, V.A.T.S. -Bus.Corp. Act, provides that any shareholder of record who meets certain qualifications shall have the right to examine “for any proper purpose” the books and records of the Company. A method for the enforcement of the right of inspection or examination .of the books and records of a corporation is by mandamus. Moore v. Rock Creek Oil Corporation, 59 S.W.2d 815, 817 (Tex.Comm’n App.1933, jdgmt. adopted); 5 Fletcher Cyc. Corp. § 2251 (perm. ed. rev. repl. 1967). A mandamus action is a civil suit and is generally regulated by the same rules of procedure as other civil actions. Although the right to a jury trial does not exist in all situations where mandamus is applicable, it does exist in the situation where a corporation, in resisting a stockholder’s attempt to inspect the books and records, raises by its pleadings a fact issue over whether the stockholder has a proper purpose for wanting to see the books. See Guaranty Old Line Life Co. v. McCallum, 97 S.W.2d 966 (Tex.Civ.App.1936, no writ) and Roberts v. Munroe, 193 S.W. 734 (Tex.Civ.App. 1917, writ dism’d). In our view, the Company has raised a fact issue over whether the Whites had a proper purpose to inspect the Company’s books. Judge Loughridge, in granting the Whites’ motion for discovery, has deprived Relators of a jury trial on the issue of proper purpose since the Whites will receive through the order allowing discovery all of the relief sought in the main suit. Relators are entitled to a writ of mandamus ordering the trial judge to expunge his order for discovery. In so holding, we are not passing upon the merits of the issues drawn by the pleadings in the Whites’ suit.

We are certain that the trial judge will proceed in accordance with the law as we have held it to be in this opinion without the necessity of the actual issuance of a writ of mandamus, but in the event he should fail to so proceed, the Clerk will issue the necessary writ so as to render effective the judgment of this Court. All costs are assessed against respondents, John H. White, Joella White Bitter et vir, and Evelyn White Thomson et vir.


author: WOODLEY, Presiding Judge.

text:
    Ex parte Vern Wilmer CARPENTER.
    No. 41083.
    Court of Criminal Appeals of Texas.
    Feb. 28, 1968.
    Rehearing Denied April 17, 1968.
    O. M. Calhoun, Amarillo, for appellant.
    Gene Compton, Dist. Atty., Bob D. Slough, Asst. Dist. Atty., Amarillo, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

This is a habeas corpus proceeding attacking as void the 5 year sentence imposed in Cause No. 13056 in the 47th District Court of Potter County wherein petitioner was convicted of the felony offense of drunk driving.

The conviction is attacked upon the ground that at the time petitioner entered his plea of guilty in the County Court of Cottle County in the misdemeanor conviction alleged in the indictment, petitioner:

“was denied the right to counsel as guaranteed by the 6th and 14th Amendment — , as petitioner was tried for the offense of D.W.I. and was convicted of the said charge without the aid of counsel,” and
“such prior conviction being illegal as petitioner was without the aid of counsel.”

(Quotes from petition for writ of habeas corpus subscribed and sworn to by petitioner to the best of his knowledge and belief, June 6, 1967.)

Neither the petition containing the above allegation nor what is designated as a petition for mandamus sworn to October 13, 1967, contains any allegation of fact to support the claim that petitioner was denied the right to counsel when he pleaded guilty in Cottle County to the misdemeanor offense — unless it be the allegation that he was without counsel.

As petitioner points out, the Texas Statutes in effect at the time of his conviction in Cottle County did not require that the court appoint counsel for an indigent defendant charged with misdemeanor D.W. I.

There is no allegation, affidavit or finding that petitioner desired counsel; was not advised of his right to counsel, or was by reason of indigency unable to obtain counsel to represent or defend him.

The trial court’s findings of fact based on the pleadings:

“Petitioner has sworn on his oath that he had no attorney, and the court therefore finds as a fact that he did not have an attorney at the time of his former trial for the misdemeanor offense,”

does not support his conclusion that “petitioner is not now lawfully confined,” and “petitioner has been at his former trial for the misdemeanor offense denied the right to counsel.”

Appellant swore only that the information in his Petition for Writ of Ha-beas Corpus was true to the best of his knowledge and belief. The petition does not contain allegations sufficient to show denial of counsel. Neither this court nor the Supreme Court of the United States has held a felony conviction void on the ground that in the prior misdemeanor conviction pled, as an element of such felony the defendant was indigent and without counsel at the time he pled guilty to said misdemeanor.

This court is not bound by the conclusions of law of the district judge, that petitioner is now unlawfully confined. Ex parte Young, Tex.Cr.App., 418 S.W.2d 824.

The petition for writ of habeas corpus forwarded to this court with the findings and conclusions of the district judge is denied.


text:
    Mario CHAVARRIA, Appellant, v. The STATE of Texas, Appellee.
    No. 41148.
    Court of Criminal Appeals of Texas.
    March 27, 1968.

      Frank Y. Hill, Jr., San Antonio (On Appeal Only), for appellant.
    James E. Barlow, Dist. Atty., Earl C. Hill, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is unlawful possession of heroin; the punishment, 12 years.

Trial was before the court on a plea of nolo contendere.

Appellant’s brief sets out as ground of error “that he was unlawfully induced to change his plea from 'not guilty’ to ‘nolo contendere’ upon the promise that he was being reserved the right to complain on appeal of an unlawful arrest and search.”

Appellant’s counsel, in his brief, agrees that the trial court, defense counsel and counsel for the state were at all times attempting to see that appellant was afforded proper treatment and that no intentional desire to infringe upon his rights is shown by the record.

The question which controls the disposition of this appeal is whether a trial court is authorized to accept a defendant’s plea of nolo contendere under the conditions shown by this record.

Appellant filed a motion to suppress the evidence obtained at the time of his arrest on the ground that his arrest was without warrant and without probable cause, and the search of his person incident to such arrest was therefore illegal and all fruits of the search must be suppressed.

After hearing the evidence adduced on the motion, the trial judge overruled it, whereupon appellant’s plea of not guilty was withdrawn, a plea of nolo contendere was entered, a jury waived and appellant entered into stipulations and testified, all with the understanding that he was not waiving but was preserving all of his rights to appeal the court’s ruling on the motion to suppress.

Before accepting the plea of nolo conten-dere the trial judge stated to appellant’s trial counsel that he would not accept a plea of guilty “because I do think there may be some merit in your motion and * * * nolo contendere would protect him on his motion to suppress. And, of course, if he wants to plead ‘nolo conten-dere’ that still would retain any rights he has on this constitutional question * *

Under Art. 27.02(6) Vernon’s Ann. C.C.P., the legal effect of a plea of nolo contendere is the same as a plea of guilty insofar as the criminal prosecution is concerned. Martinez v. State, 170 Tex.Cr.R. 266, 340 S.W.2d 56.

The judgment entered upon the plea demonstrates the correctness of such holding. It recites that appellant entered a plea of nolo contendere and that the court admonished him of the consequences of such plea, but he persisted in such plea: “and after due inquiry, it plainly appearing to the court that the defendant is sane and uninfluenced by any consideration of fear, or by any persuasion or delusive hope of pardon prompting him to confess his guilt, the said plea of Guilty was received by the court and is now entered of record.”

Under the record, the trial court was in error in accepting the plea of nolo con-tendere.

For the reasons stated, the judgment is reversed and the cause remanded.


author: DICE, Judge.

text:
    Eugene A. TICE, Appellant, v. The STATE of Texas, Appellee.
    No. 41135.
    Court of Criminal Appeals of Texas.
    March 27, 1968.
    Niland & Niland by Jack T. Niland, El Paso, for appellant.
    Barton Boling, Dist. Atty., Robert D. Earp, Asst. Dist. Atty., El Paso, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is for felony theft; the punishment, seven years.

The indictment charged the theft of $11,-000 in money from one Manuel Ruiz. '

It was the state’s contention, supported by the evidence, that appellant obtained the money by. means of a false pretext, and, upon such theory, the issue of his guilt was submitted to the jury by the court in his charge.

The injured party, Manuel Ruiz, testified that he owned and operated the Ideal Tortilla Factory in the city of El Paso and that in the year 1963 he had some construction work done on a building by the Karam Construction Company. The total cost of construction was $41,000 plus cost of extra work and, under the terms of the contract, was to be paid in three payments. One payment was to made at the beginning of the contract, one in the middle of the construction, and one upon completion of the building. The injured party testified that on November 6, 1963, the appellant came to his place of business and said that Mr. Karam wanted his money. Thereupon, he gave appellant his company checkbook for him to make out the check. After appellant filled out the check, the injured party signed it and appellant left, saying that he would take it to Mr. Karam. The injured party testified that when he signed the check, which was drawn on his business account at the State National Bank in the sum of $11,000, it was made payable to “Karam Construction Company.” It was shown that the check in question was, on November 6, charged to the account of Ideal Tortilla Factory in the State National Bank and deposited to the account of Kara-nette Construction Company, of which appellant was the sole owner. At such time, the check was payable to “Karanette Construction Company.” The injured party testified that he did not give appellant authority to alter the check or to do anything with it other than deliver it to Mr. Karam.

It was further shown that appellant had no authority from Eddy Karam, the owner of Karam Construction Company, to solicit the check from the injured party and, further, that Karam did not receive the check.

Testifying in his own behalf, appellant admitted receiving the check from the injured party but swore that it was for a loan to him. Appellant denied that he wrote the name “Karam,” as payee, on the check, but said that it was written “Kara-nette Construction Company.”

Appellant’s sole ground of error is that the trial court committed error in failing to grant his motion for new trial.

It is appellant’s contention that because of certain contradictions in the injured party’s testimony and contradicitions between his (the latter’s) testimony and that of other witnesses in the case, the injured party’s testimony was obviously false and, for such reason, his (appellant’s) conviction should not be allowed to stand.

In his brief, appellant points to certain testimony given by the injured party at the trial which was in conflict with statements he had made to the police and at an extradition hearing relative to whether the check was for the second or last payment on the contract and also as to the amount of certain checks given for the second payment and who wrote them and whether he had ever asked appellant to talk to the contractor, Karam, and inquire how the work was progressing. Reference is also made to conflicts between the injured party’s testimony and that of other witnesses at the trial with reference to whether appellant and a real estate firm had anything to do with obtaining the construction contract for Karam and whether the injured party knew Karam before the construction was begun.

The fact that the injured party had made prior inconsistent statements did not destroy his testimony given at the trial but only affected the weight to be given his testimony and his credibility as a witness. Randolph v. State, 163 Tex.Cr.R. 156, 289 S.W.2d 772.

The further fact that there were contradictions between the testimony of the injured party and other witnesses called by the state did not destroy his testimony, as the jury were the exclusive judges of the credibility of the witnesses and the weight to be given their testimony. Hilliard v. State, 170 Tex.Cr.R. 290, 340 S.W.2d 494.

In connection with appellant’s contention, it should be observed that at the trial it was necessary for the injured party, while testifying as a witness, to speak through an interpreter and that his testimony was being given in the year 1967 relative to events which occurred in the year 1963.

The ground of error is overruled.

The judgment is affirmed.


author: BELCHER, Judge. ONION, Judge.

text:
    Danny HOSKINS, Appellant, v. The STATE of Texas, Appellee.
    No. 40787.
    Court of Criminal Appeals of Texas.
    Dec. 6, 1967.
    Rehearing Denied Feb. 28, 1968.
    Second Rehearing Denied April 10, 1968.

      John R. Lee, Kermit, for appellant.
    Don M. Nugent, Dist. Atty., Kermit, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

This is an appeal from an order revoking probation.

Upon his plea of guilty before the court on June 7, 1966, the appellant was found guilty of burglary of a coin operated machine and his punishment was assessed at a term of three years.

The Imposition of sentence was suspended and the appellant was placed on probation.

Among the eleven conditions of his probation was that he commit no offense against the laws of this state.

Following the granting of probation, the district attorney filed a motion and later an amended motion to revoke probation alleging that appellant had committed numerous violations of the laws of this state, listing and describing the acts constituting the violations.

On the hearing, evidence was introduced which supported the allegations of the amended motion to revoke.

At the conclusion of the hearing, the court entered its order finding that the appellant had violated certain named conditions of the order granting probation.

It is from the order revoking probation and the pronouncement of sentence that appellant prosecutes his appeal.

As grounds for reversal, the appellant contends that the trial court “erred in revoking Defendant’s Probated Sentence for the reason that the Judgment of Conviction was found, determined and entered without the introduction of any evidence of Defendant’s guilt and without affording Defendant the opportunity to be confronted by his accuser and/or accusers and the witnesses against him and is therefore illegal and invalid.”

Further, the grounds relied upon by the appellant were not raised in the hearing on the state’s motion to revoke probation.

While it alone does not authorize conviction when trial by jury is waived and a plea of guilty to a felony charge is entered before a trial judge, such plea constitutes an admission of guilt. Burks v. State, 145 Tex.Cr.R. 15, 165 S.W.2d 460. See Article 1.15, Vernon’s Ann.C.C.P.

The judgment reflects that appellant’s plea of guilty followed the reading of indictment ; that he was represented by counsel, waived trial by jury, was duly admonished by the court of the consequences of his plea and persisted in said plea of guilty. The judgment further recites that after hearing the evidence submitted, the court found the appellant guilty.

The record before us reflects that some evidence was heard on appellant’s plea of guilty including appellant’s own testimony. Appellant contends, however, that none of the evidence offered shows appellant’s guilt.

We observe that the clerk’s certificate shows that the record before us contains true and correct copies of all proceedings in this cause directed by counsel to be included in the transcript. It does not reflect that all proceedings had in the cause are included.

Be that as it may, the sufficiency of the evidence to support the allegations of the indictment may not be inquired into in these proceedings.

In an appeal from an order revoking probation, this court’s review is limited to the question of whether an abuse of the trial court’s discretion is shown. Chavez v. State, Tex.Cr.App., 375 S.W.2d 729.

Some evidence having been introduced at his trial on a plea of guilty, appellant’s contention that the court abused his discretion in revoking probation is overruled.

The judgment is affirmed.

OPINION ON APPELLANT’S MOTION FOR RE-HEARING

ONION, Judge.

In his motion for re-hearing appellant takes the position that while the trial court had adequate grounds to revoke probation, it erred in doing so because the judgment of conviction upon which the sentence was imposed is illegal and invalid.

It is his contention that the failure of the state to present sufficient evidence to demonstrate appellant’s guilt at the time of his guilty plea in accordance with Article 1.15, V.A.C.C.P., prevented the trial judge from entering a valid judgment upon which a proper revocation of probation could be based, and to do so deprived him of due process required by the United States Constitution.

This Court has consistently held under Articles 781b and 781d, V.A.C.C.P., as well as present Article 42.12, V.A. C.C.P., that in an appeal from an order revoking probation the review by this Court is limited to the propriety of the revocation itself (whether the trial judge abused his discretion) and does not include a review of the original conviction. Bills v. State, Tex.Cr.App., 258 S.W.2d 804; Jones v. State, 159 Tex.Cr.R. 24, 261 S.W.2d 317; Lynch v. State, 159 Tex. Cr.R. 267, 263 S.W.2d 158; Dunn v. State, 159 Tex.Cr.R. 520, 265 S.W.2d 589; Graves v. State, 158 Tex.Cr.R. 429, 256 S.W.2d 576; Gossett v. State, 162 Tex.Cr.R. 52, 282 S.W.2d 59; McMillan v. State, 166 Tex.Cr.R. 15, 310 S.W.2d 116, Rash v. State, 168 Tex.Cr.R. 33, 323 S.W.2d 53; Miller v. State, 168 Tex.Cr.R. 570, 330 S.W.2d 466; Stratmon v. State, 169 Tex.Cr.R. 188, 333 S.W.2d 135; Oberlender v. State, 169 Tex.Cr.R. 307, 334 S.W.2d 186; Porter v. State, 169 Tex.Cr.R. 585, 335 S.W.2d 838; Lee v. State, 172 Tex.Cr.R. 240, 355 S.W.2d 715; Soliz v. State, 171 Tex.Cr.R. 376, 350 S.W.2d 566; Chavez v. State, Tex.Cr.App., 375 S.W.2d 729; Wicker v. State, Tex.Cr.App., 378 S.W.2d 332; McDonald v. State, Tex.Cr.App., 393 S.W.2d 914; Wilkerson v. State, Tex.Cr.App., 395 S.W.2d 618; Torres v. State, Tex.Cr.App., 403 S.W.2d 135; McKnight v. State, Tex.Cr.App., 409 S.W.2d 858; Manning v. State, Tex.Cr.App., 412 SW.2d 656; Anderson v. State, Tex.Cr.App., 423 S.W.2d 596 (No. 41,067).

In Stratmon v. State, supra, this Court refused to declare the Adult Probation law (Article 781d-1957) unconstitutional on the grounds that it was indefinite or uncertain or violated guarantees of due process or equal protection of the law for failure to clearly provide that review on appeal of a probationary revocation should be limited to a question of whether an abuse of discretion is shown.

In Gossett v. State, supra, this Court held that the Adult Probation law provides the right of appeal shall be accorded the defendant at the time of the granting of probation, but it is waived by the failure to exercise the right of appeal at that time. See also McMillan v. State, supra; Article 42.12, Sec. 8, V.A.C.C.P.

In Wilkerson v. State, Tex.Cr.App., 395 S.W.2d 618, where the appellant had plead guilty at the time of the original trial, this Court said:

“It is insisted that certain errors were committed in the original trial and that the evidence introduced was insufficient to support the conviction.
“By failing to appeal when he was placed on probation, appellant waived his right to a review of the original trial and the contentions now urged are not properly before us for review. Gossett v. State, 162 Tex.Cr.R. 52, 282 S.W.2d 59; Rash v. State, 168 Tex.Cr.R. 33, 323 S.W.2d 53; Chavez v. State, Tex.Cr.App., 375 S.W.2d 729, and cases therein cited.
“For the same reason, no error may be predicated upon the court reporter’s inability to comply with appellant’s request that he be furnished a statement of facts of the evidence adduced upon the original trial.”

In Chavez v. State, supra, it is observed that on appeal from revocation of probation appellant attempted to challenge not only the sufficiency of evidence to support his original plea of guilty but the allegations of the indictment as well.

The 1965 Code of Criminal Procedure (Article 42.12) contains substantially the same provisions for the granting of probation by the judge and for revocation of probation and the right of appeal as the superseded Article 781d (which itself had superseded Article 781b). Its enactment in effect adopted the construction placed upon the same provisions of the prior statutes by the decisions of this Court. See Stratmon v. State, supra.

The appellant, having failed to appeal at the time of his original conviction, waived his right of review of that conviction and the contention he now urges is not properly before us for review.

To sustain appellant’s position would mean that an accused could waive trial by jury in a felony less than capital, plead guilty before the court, be properly admonished by the court as to the consequences of his plea, have the court enter judgment finding sufficient evidence was heard, accept leniency in the form of probation without any effort to withdraw the plea pri- or to judgment or to file a motion for new trial or to appeal, but if probation is ever subsequently revoked (in some cases within a ten-year period) then question for the first time the sufficiency of the evidence offered at his original plea of guilty.

We are not unmindful of the requirements of Article 1.15, V.A.C.C.P. (former Article 12) that the state has the burden of introducing evidence sufficient to support the guilt of the defendant, but such evidence need not be perpetuated, Broyles v. State, 143 Tex.Cr.R. 556, 159 S.W.2d 881, except where stipulated evidence is used. If the state has not discharged its burden in this regard, the cause on direct appeal will be reversed.

Former Article 12, supra, had application only to pleas of guilty or nolo con-tendere, while Article 1.15, supra, applies to all felonies less than capital where a jury is waived and a defendant enters “a plea” before the court.

It is further observed under the 1965 Code of Criminal Procedure that upon a withdrawal of a plea of guilty or nolo contendere in a felony case less than capital, or a change of the plea to not guilty where a jury trial has been waived, the trial court no longer loses jurisdiction to proceed with the cause. Under the former Code a plea of not guilty in all felony cases had to be heard before a jury, and upon a change of plea after a commencement of trial before the court upon a plea of guilty or nolo contendere the trial court lost competent jurisdiction to proceed.

The rule established in Texas since 1931 requiring evidence sufficient to support a defendant’s guilt upon his plea of guilty before the court in a felony less than capital is different from the rule in federal courts and many other jurisdictions. It is even different from our own rule where the plea of guilty is entered in a felony case before a jury. Miller v. State, Tex.Cr.App., 412 S.W.2d 650; Anderson v. State, 118 Tex.Cr.R. 194, 42 S.W.2d 1012. Further, it is unlike our rule in pleas of guilty in misdemeanor, cases. Article 27.14, V.A.C.C.P.; Carter v. State, Tex.Cr.App., 400 S.W.2d 571; Foster v. State, Tex.Cr.App., 422 S.W.2d 447; Albrecht v. State Tex.Cr.App., 424 S.W.2d 447.

The provision of Article 1.15, supra, requiring the production of sufficient evidence by the state to support a guilty plea affords a defendant an additional procedural safeguard, but when a defendant accepts probation and the right of appeal from the original trial is by-passed, then the defendant must be considered as having waived the right to question the sufficiency of the evidence. In applying this “waiver” rule, no distinction can reasonably be made between cases where all the evidence adduced on the plea has been perpetuated and brought forward on appeal from those cases where it has not.

With reference to appellant’s claim of deprivation of federal constitutional due process, attention is directed to Bee v. Beto, 384 F.2d 925, wherein the Fifth Circuit Court of Appeals held that a guilty plea entered by a Texas state defend-* ant was conclusive as to the defendant’s guilt, admitted all facts charged in the indictment and waived all nonjurisdictional defects, citing White v. Beto, 367 F.2d 557; Law v. Beto, 370 F.2d 369 and Haynes v. United States, 372 F.2d 651.

Appellant’s motion for re-hearing is overruled.

      . Article 1.15, supra, as amended in 1967, also applies to capital cases where the state has waived the death penalty.


author: LANGDON, Justice.

text:
    Morton N. GOLDBERG, Appellant, v. Mary Margaret GOLDBERG, Appellee.
    No. 16899.
    Court of Civil Appeals of Texas. Fort Worth.
    March 15, 1968.
    Crumley, Rouer, Murphy & Shrull, and Franklin Moore, Fort Worth, Tex., for appellant.
    Stone, Tilley, Parker, Snakard, Law & Brown, and Robert M. Randolph, Fort Worth, Tex., for appellee.
   OPINION

LANGDON, Justice.

This is a suit in equity initiated by a former wife against her divorced husband to declare and foreclose an implied vendor’s lien on realty to enforce collection of a money judgment awarded to her in the divorce decree in lieu of her one-half community interest in said realty. The case was tried to the same court in which the divorce judgment was rendered. The appellee and appellant will be hereinafter referred to as plaintiff and defendant, respectively, as in the trial court.

On August 12, 1964, the plaintiff was granted a divorce against the defendant in Cause No. 32692-F, 48th District Court, Tarrant County, Texas. The divorce judgment made a complete and final partition of all property, real and personal, owned by the parties. Under the judgment the improved realty here in question was awarded to the defendant. The judgment recited that the plaintiff’s interest in such realty (homestead) was $3,870.24 and she was awarded a money judgment in such amount. The trial court, although it was urged to do so, refused to impress the real property in question with an equitable lien to secure payment of the said money judgment although at that time it had the authority to do so. The action of the trial court in dividing the property as it did and its refusal or failure to impress the lien was affirmed by this court. Goldberg v. Goldberg, 392 S.W.2d 168 (Fort Worth Tex.Civ.App., 1965, no writ hist.).

In this case, in equity involving the same parties, the court was again called upon to impress the realty in question with an equitable vendor’s lien to secure the plaintiff’s money judgment in the amount of $3,870.24.

The plaintiff, citing 28 Tex.Jur.2d “Homesteads,” Sec. 163, p. 582, advanced the theory that the judgment of divorce created a judgment debt in exchange for defendant’s acquisition of her “right, title or interest” in the house and that such a debt clearly falls within the definition of a debt for purchase money and the lien thereby created is superior to any homestead right. Stated another way the plaintiff’s theory is that an equitable implied vendor’s lien for purchase money was created by operation of law at the time the divorce judgment was rendered because the court awarded her interest in the realty in question to the defendant and awarded the money judgment to her to compensate for her interest.

It is undisputed that the defendant remarried soon after the divorce action and that the property in question was his homestead at all times material to the instant case.

The trial court rendered judgment for the plaintiff and affixed an express equitable vendor’s lien against the defendant’s homestead (in nature of a vendor’s lien for purchase money) in the amount of $3,870.24 and ordered the same foreclosed and sold as an execution.

In the trial court the defendant plead res judicata contending that the judgment rendered in the previous divorce suit between the parties to this suit was based upon the same claim or demand as is here involved.

The defendant further contends that the lien is invalid under the Constitution which does not contain any provision for the sale of a homestead to satisfy a money judgment. (Vernon’s Annotated Tex.Const., Art. 16, Sect. 50.)

The appeal is based upon the same grounds.

We reverse and render.

In our opinion the same subject matter now before this court was litigated in the 1964 divorce action between the same parties and therefore the points relating to the establishment of a lien are now res judicata between the parties and constitute a bar to the present action.

“Res judicata is the doctrine that an existing final judgment or decree, rendered on the merits, without fraud or collusion, by a court of competent jurisdiction on a matter within its jurisdiction, is conclusive of the rights of the parties or their privies in all other actions or suits in the same court, or in any other judicial tribunal of concurrent jurisdiction, on points and matters in issue in the first suit. 4 Tex.Jur.2d Appeal and Error § 1009n; 34 Tex.Jur.2d Judgments § 450.” 64 Tex.Jur.2d 787, “Words and Phrases.” Stephenson v. Miller Link Lumber Co., 277 S.W. 1039, 1040 (Tex.Com.App., 1925); White v. White, 380 S.W.2d 672, 678 (Tyler Tex.Civ.App., 1964, ref. n. r. e.). See annotations: 49 A.L.R.2d 1038; 54 A.L.R.2d 477; 77 A.L.R.2d 1414; 83 A.L.R.2d 980.

In view of the fact that we are of the opinion and hold that the judgment in the previous divorce action is conclusive of the matters involved in the instant suit we see no necessity for additional discussion.

That portion of the judgment of the trial court affixing an equitable vendor’s lien against defendant’s homestead is reversed and judgment here rendered that said lien be dissolved and held for naught.

Reversed and rendered.


author: WALTER, Justice.

text:
    Mrs. Ermil C. YANCEY et vir, Appellants, v. James W. GARRETSON, Appellee.
    No. 4214.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 29, 1968.
    Rehearing Denied March 22, 1968.
    Burt Berry, Dallas, for appellants.
    Touchstone, Bernays & Johnston, W. Richard Bernays, Dallas, for appellee.
   WALTER, Justice.

Mrs. Ermil C. Yancey and her husband filed suit against James W. Garretson for damages resulting from an automobile collision. The jury found the defendant guilty of several acts of negligence and that each was a proximate cause of the collision. It also found that Mrs. Yancey failed to keep a proper lookout and that such failure was a proximate cause of the collision. The court rendered a judgment that plaintiffs take nothing. The plaintiffs have appealed.

They contend the court erred in refusing to grant them a new trial because the findings that Mrs. Yancey failed to keep a proper lookout and that such failure was a proximate cause of the collision are so contrary to the great weight and preponderance of the evidence as to be wrong and unjust.

We have considered all the evidence and find that the jury’s answers that Mrs. Yancey failed to keep a proper lookout which was a proximate cause of the collision are not contrary to the overwhelming weight and preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

The judgment is affirmed.


author: SELLERS, Justice.

text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. Iziah HUTCHISON, Appellee.
    No. 321.
    Court of Civil Appeals of Texas. Tyler.
    Feb. 8, 1968.
    Rehearing Granted March 21, 1968.

      Kenley, Boyland, Hawthorn, & Starr, Larry W. Starr, and Jason W. Smith, Longview, for appellant.
    Gordon Wellborn, & Rex Houston, Vaughan O. Stewart, Ronald D. Kirst, Richard R. Morrison, III, Henderson, for appellee.
   SELLERS, Justice.

This is an appeal from a judgment of the trial court in which the appellee, Iziah Hutchison, was awarded a recovery under the Workmen’s Compensation law of this State against appellant upon the jury verdict for 108 weeks of total incapacity and permanent partial incapacity beginning “January 1968.”

Appellant’s first assignment of error involves the evidence given by Dr. Mann, a witness for appellee. The following proceedings took place:

“Q Do you know Iziah Hutchison ?
“A Yes, sir.
“Q Did he come to you seeking medical attention ?
“A Yes, sir.
“Q Do you remember when you saw Iziah Hutchison?
“A About the middle of December of ’66.
“Q Did you take a history from Iziah from him when he came to see you ?
“A Yes.
“Q Would you relate that history to the jury please?
“A I have got a few notes here, but I saw him on the 16th of December, ’66 and Iziah told me that he had been injured over one year ago and that at that time he had injured his back and that Dr. Bras-well here in Henderson and Dr. DeCharles of Tyler had seen him and they had been treating him for a lumbosacral or low back strain, and that he was still having symptoms. He stated to me the way that he originally hurt his back was that he was I believe lifting a window frame and as he raised up he struck his lower back on a bar, where the bar was located, I don’t know. That’s essentially the history that I obtained and do you want me to give my physical—
“Q Would you tell us if you performed any examinations on Iziah ?
“A Yes, sir.
“Q Would you describe the examination you performed, please sir?
“A Well, I just did a general physical on Iziah and noted that his vital signs, meaning his weight, blood pressure, temperature, etc., were normal, the general physical examination was good except that he did his — essentially his findings were limited to the lumbosacral region of the back, of the lower back region, I noted that he had difficulty getting up and down, that he kept his back quite straight, that he had loss of curvature of the lower back, that he had limitation of hyperextension which means bending backwards and flexion meaning bending forwards, that the straight leg raising was limited also bilaterally meaning both legs, that he had no leg signs, what I mean by this is that he had no extension of pain or loss of feeling or that thpe of thing into the legs, that he had tenderness over both the sacral sciatic notches, this is the lower back, had muscle tightness of the paravertebral muscle, that’s the muscles along the back region. At this time I prescribed a muscle relaxant and pain medication for him and—
“Q Doctor, let me ask you this. Is the straightning of the curvature of the spine — what does that denote to a trained physician?
“A Means he is having some irritation of the ligamentous muscular structure in this region as a result of irration of the nerves supplying these muscles and ligaments and this has a tendancy to tighten the muscles and pull the back straight.
“Q I see. Now, Doctor, of course a person’s bicep, for example,, can be either a voluntary contracture of that muscle or an involuntary con-tracture of a bicep muscle in the arm, can it not?
“A Yes, sir.
“Q Now in the region of the back where you found this straighiwing of the spine as a result of the contracture of the muscles, is it possible for a person to voluntarily cause that condition to exist?
“A Well, he can to some degree, yes sir.
“Q Are doctors trained in observing their patients and observing their general demeanor and so forth to determine whether or not such a contracture is genuine or is artificial ?
“A I feel after you have seen a good many and I say you have looked at a good many, you have felt of a good many that you can determine to a great degree as to whether they are faking or not faking.
“Q Did you reach an opinion in connection with Iziah Hutchison?
“A Well, I felt, yes sir.
“Q Did you feel that he was faking or that his objective signs of the straighining of the curvature of the spine and the contracture of the muscles in that region was a fake or was it actually an involuntary response of his body to the trauma, or to some condition?
“A Well, I would say that most of Iziah’s problems were involuntary, I mean this was just a physiological or pathological result of his back problem.
it ⅝ ⅜ ⅝
“Q Doctor, assuming that an individual in the condition of Iziah Hutchison was in- when he was in your office recently, assuming that he injured himself IS months ago or September 9, 1965 and hadn’t worked any since he injured himself and he still maintains the same objective findings which you found in Iziah Hutchison when you examined him this January, would you state whether or not in your opinion a man who has been suffering from this disease for this length of time, would that condition in your opinion be permanent or temporary ?
“A Well, you would have to classify it as permanent type disability.
« * * * >f

On cross-examination, the following took place:

“Q Did you ask Iziah whether or not he has tried to do any work since September of 1965 ?
“A No, I don’t recall. No, sir. I don’t believe that I did.
“Q You are basing your judgment here, as you relate it to the jury on his ability to do work and the length of time that it is going to last on the fact that he hasn’t worked during this period of time?
“A No, sir. On the fact that I have seen a good many cases of a similar nature, taking the history that he related to me, that and the diagnosis that have been given to him by other doctors and what I found on observation and examination. That’s what I am basing my opinion on.
“Q Is that what your testimony so far is based on?
“A Yes, sir.
“Q And you require all those factors in your consideration before being able to render those opinions?
“A Yes, sir. I feel so.
“Q You couldn’t render it without any one or more of the things that you have talked about?
“A I feel that you have to take the accumulation of the facts as they are given you and facts that you find in order to render an opinion, if that is what you mean?
«* * *

The objection of Appellant to such testimony and the ruling of the trial court thereon appears as follows:

“MR. STARR: Your Honor, at this time we are going to object to the testimony that the doctor rendered on direct examination with regard to his opinion that he gave on the basis that he based those opinions in part on the diagnosis of other physicians, which would be improper and hearsay and could not form the basis of an opinion in his own testimony and further that his testimony reveals that it was necessary for him to consider that in order to arrive at those opinions and therefore it would be inadmissible evidence.
“THE COURT: Overruled.”

It being true that Dr. Mann did take into consideration the statement of Iziah given in the history of his case that two other doctors had treated him for a low back injury and if this evidence is hearsay as contended by appellant, it would still not be reversible error since Dr. Mann in his testimony found ample evidence of the disability of Iziah on his examination to support his findings that Iziah was injured and that such injury was permanent.

This Court has held that the opinion of an expert, based upon personal knowledge from examination of the patient and upon hearsay evidence, is admissible and not reversible error. Gray et al. v. Bird et al., 380 S.W.2d 908. The assignment is overruled.

The second assignment of appellant is that appellee’s attorney, in his argument to the jury, committed reversible error. The argument complained of is as follows :

“THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S OBJECTION TO THE JURY ARGUMENT OF APPELLEE’S COUNSEL WHERE WHILE EXPLAINING AP-PELLEE’S FAILURE TO CALL DR. BRASWELL (THE ORIGINAL TREATING PHYSICIAN OF APPEL-LEE’S OWN SELECTION), HE ADVISED THE JURY THAT DR. BRAS-WELL’S OPTION WOULD BE IN CONFORMITY WITH THAT OF DR. MANN AND DR. DECHARLES. * * *
<< * * *
“The record reveals that counsel for Appellee made the following statement in the course of his jury argument.
‘You know what Dr. Braswell’s opinion of Iziah Hutchison’s injury is without us bringing him to you. Dr. Braswell is the doctor that under the evidence put Iziah Hutchison in the hospital for some 21 or 24 days and I think we can assume that if Dr. Bras-well saw fit to treat Iziah Hutchison beginning on Friday after he was hurt on Thursday for 5 straight days, and his condition was then after 5 days’ treatment such that he confined him to the Henderson Memorial Hospital and he stayed there for 21 to 24 days, and Dr. Braswell’s opinion would be in conformity with Dr. Mann and Dr. Patrick DeCharles, that Iziah Hutchi-son is injured — ’
“The record further reveals that at this point Appellant made the following objection to the improper argument of Appellee’s counsel * * *:
‘MR. STARR: Your Honor, I object to counsel telling the jury what Dr. Braswell’s opinion would be if he were here because he was not called and he is a doctor who is subject to Plaintiff’s control since Plaintiff selected him of his own choice. It’s not proper argument and I object to it for that reason and request that the jury be instructed to disregard this argument.’
“The court’s ruling upon appellant’s objection to this argument is stated as follows:
‘THE COURT: I will overrule the objection, but Mr. Krist, stay within the record.’ ”

Appellee points out that this argument was made in answer to that made by both of Appellant’s attorneys as follows:

“He has been under the treatment, originally, of Dr. Braswell. Dr. Braswell saw him shortly after this accident occurred. There has also been an indication that he was in the hospital. We have not had the benefit of Dr. Bras-well’s testimony * * *
“Then the other attorney for appellant made this argument:
‘Why did not they bring in the physician to whom Iziah went of his own free will and own choice originally: If they wanted to bring you the testimony of that doctor, why didn’t they bring him in here?’
“In his closing argument, appellee’s attorney made this reply:
“Mr. Krist: They say ‘Why didn’t they bring you Dr. Braswell’? The doctor that Iziah Hutchison selected of his own choice as his doctor? Well, let’s think about that a minute. Why didn’t the insurance company bring Dr. Braswell? He is subject to subpoena. He is right here in Henderson, Texas. Why didn’t they bring him to you and pay him some money like they did Dr. Hoover? I will tell you why we didn’t bring him to you quite frankly. Because we didn’t feel Dr. Braswell could contribute anything more to this case. You know what Dr. Braswell’s opinion of Iziah Hutchison’s injury is without us bringing him to you. Dr. Braswell is the doctor that under the evidence put Iziah Hutchison in the hospital for some 21 or 24 days and I think we can assume that if Dr. Braswell saw fit to treat Iziah Hutchison beginning on Friday after he was hurt on Thursday for five straight days, his condition was then after five days treatment such that he confined him to the Henderson Memorial Hospital and he stayed there for 21 to 24 days, and Dr. Braswell’s opinion would be in conformity with Dr. Mann and Dr. Patrick DeCharles, that Iziah Hutchison is injured—
“Mr. Starr: Your Honor, I object to counsel telling the jury what Dr. Bras-well’s opinion would be if he were here because he was not called and he is a doctor who is subject to the plaintiff’s control since plaintiff selected him of his own choice. It’s not proper argument and I object to it for that reason and request that the jury be instructed to disregard this argument.
“Mr. Krist: We feel it is reasonable and it is in the evidence.
“The Court: I will overrule the objection, but Mr. Krist, stay within the record.
“Mr. Krist: Well, we didn’t bring you Dr. Brasewell—
“The Court: ‘Braswell.’
“Mr. Krist: Braswell, but the fact of what Dr. Braswell did is before you, the confinement in the hospital. * * * ”

We are of the opinion that the argument was not only invited but also finds support in the evidence. The argument goes no further than to say that Dr. Bras-well did find that Iziah was hurt. This was in evidence from Iziah and from Dr. De-Charles and appellant’s witness, Dr. Hoover, who, in answer to a question, testified:

“A Well, again I didn’t have an opportunity to examine the patient during that period. It is likely that for several weeks after an injury of that type that he would be unable to perform manual labor, yes sir.”

The assignment is overruled.

Appellant, in his third assignment, complains of the definition of “partial incapacity.” Without setting out the definition as given, we deem it sufficient to say that said definition has been sustained many times in compensation cases on appeal. For this reason, we overrule this assignment. Highlands Insurance Company v. Daniel, Tex.Civ.App., 410 S.W.2d 491.

Appellant’s fourth assignment of error is that the judgment is excessive. Appellee concedes this error and asks this Court to reform the judgment of the trial court to grant the appellee 276 weeks of partial incapacity and 108 weeks of total incapacity. The request of appellee is granted, and the judgment will be reformed to meet the request of appellee.

The judgment of the trial court, as reformed, is in all things affirmed.

ON MOTION FOR REHEARING

Appellant filed its motion for rehearing in this cause requesting the court to reconsider its opinion rendered on February 8, 1968, and reverse and render the cause, or reverse and remand. Pending hearing on the motion, however, both parties have filed herein their joint motion requesting this court to grant appellant’s motion to reverse and remand the case, for the sole purpose of effecting a settlement thereof, and that Mandate issue immediately.

We adhere to our original decision delivered February 8, 1968. However, the joint motion of the parties is accordingly granted, the judgment heretofore entered is set aside, and the cause reversed and remanded to the trial court for the sole purpose of effecting a settlement of the case. It is ordered that the Mandate issue immediately.


author: BELL, Chief Justice.

text:
    CONSOLIDATED MUTUAL INSURANCE COMPANY, Appellant, v. Linda Kathryn MORONKO et vir, Appellees.
    No. 15228.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    Feb. 29, 1968.
    Rehearing Denied March 28, 1968.

      Zimmerman, Jones, Burdeaux & Kiefer, Stephen N. Zimmerman, Harry S. Jones, Houston, for appellant.
    Schulman & Powell, William R. Powell, Houston, for appellees.
   BELL, Chief Justice.

This is a workmen’s compensation case in which, after a jury trial, the court, based on the jury verdict, rendered judgment in favor of appellees for total permanent incapacity incurred by Mrs. Moronko. She received her injuries while working as a saleslady at J. J. Newberry’s on May 25, 1965, when she fell down an escalator which stopped moving while she was on it. She did not file her claim with the Industrial Accident Board until January 12, 1966. The six months’ period for filing the claim expired November 25, 1965. The jury found good cause for not filing sooner, as we shall hereafter notice specifically.

Appellant for reversal asserts there was no evidence to support the jury’s answers to Special Issues 11, 12 and 13 finding good cause. Also it asserts the answers to such issues are contrary to the overwhelming weight and preponderance of the evidence. Also, appellant contends the same with respect to the answer of the jury to Special Issue No. 1 finding total incapacity and to the answer to Special Issue No. 3 finding such incapacity was permanent.

Special Issue No. 9 inquired whether appellant’s agent, Mr. Hall, represented to Mrs. Moronko that “she * * * should not worry about a thing because the insurance company would take care of everything.” Special Issue No. 10 inquired whether Mrs. Moronko relied upon such representation. Affirmative answers were made to these issues. Special Issue No. 11 read in part as follows: “Do you find * * * that Plaintiff’s reliance * * * constituted good cause * * * for Plaintiff’s failure to file her claim with the Industrial Accident Board up until the same was filed?" (Emphasis ours unless otherwise indicated) The jury answered affirmatively.

Special Issue No. 12 inquired whether the defendant by paying weekly benefits and all medical bills from May 25, 1965, to December 14, 1965, led plaintiff to believe that her claim had been filed. The jury answered affirmatively. Special Issue No. 13 read in part as follows: “Do you find * * * that Plaintiff’s belief * * * constituted good cause * * * for failure to file her claim with the Industrial Accident Board up until the time the same was filed?” The jury answered affirmatively.

Appellant’s points of error assert error as to Special Issues 11, 12 and 13, that the court committed error in overruling its motion for instructed verdict, in submitting the issues and in refusing to disregard the answer to each, for the reason there was no evidence to support an affirmative answer.

It is undisputed that Mrs. Moronko received an injury and was immediately taken from the store where she was working to see and be treated by Dr. McCorkle. The employer and appellant, its compensation carrier, had actual notice of the injury. Appellant began paying weekly benefits on June 2, 1965, and continued same without interruption until December 14, 1965. During all of this time, and continuously since then, she has been off from work and has been :under treatment for her injuries. Too, appellant paid all medical expenses during the same period and also paid some medical expense after December 14, the last payment being to Dr. McCorkle on February 21, 1966. The medical payments after December 14 covered treatment by Dr. McCorkle both prior to December 14 and thereafter. Since that time, appellant has refused to pay any medical expense. All medical reports were sent by Dr. Mc-Corkle to appellant until it stopped paying medical expense.

Appellant’s agent, Mr. Hall, testified payments of compensation and medical expense were stopped because'of the report of their Drs. Parish and Nowlin that Mrs. Moronko had recovered and was able to return to work. There is a dispute in .the evidence at the time of trial as to whether she had recovered, as we will discuss later in connection with appellant’s contention with regard to the jury’s finding of total permanent disability.

As bearing on the issue of good cause, apart from the undisputed facts above stated with regard to payment of compensation and medical bills, there is testimony of Mrs. Moronko concerning a representation made to her by Mr. Hall that she need not worry one bit, that everything was being taken care of. Mrs. Moronko testified that during the time she was receiving payments she had some conversation with Mr. Hall. She testified :

“Well one time it (one of the checks) was late * * * and I didn’t call the very next day, but he said that the secretary was off but it would be in the mail. So I did receive it later, but then there was the next time I didn’t receive it and that was on a Thursday * * * every Thursday I would get the check * * * Monday I didn’t get it, so I called him Tuesday and he said he had stopped sending me those checks.”

Then followed these questions and answers:

Q Approximately when was that, now?
A Well, that was December.
Q In December of ’65 ?
A In, yes, sir, December.
Q Now in this preceding conversation did Mr. Hall make any representation to you about your claim being taken care of or anything?
A Oh, yes, sir. He told us everything was being taken care of and for us not to worry one bit.
Q That was the time your check was late and you called him ?
A You mean the first time?
Q Yes, ma’am.
A Yes. He always said that, "Don’t worry, everything is taken care of.”
Q * * * I would like for you to tell me exactly what Mr. Hall related to you in that regard, in his own words as best you can.
Q The first telephone conversation.
A About the first check being late ?
Q Not the check being late. The other representation you said he made to you at that time about your claim.
A * * * I don’t quite understand that.
Q * * * I thought you just said at the time of your first conversation * * when the check was late that he mentioned to you that your claim was being taken care of.
* * * * * *
A Well, he said, “Just don’t worry, Mrs. Moronko, everything is being taken care of and-your check will be in the mail.
* * * * * *
Q Based on those representations * * did you believe your claim had been filed?
A Yes. I * * * surely I thought that was filed.
Q Did you * * *
A I didn’t think I had to file it.
Q Did you rely on those representations ?
A Yes, sir.
Q Now in your second conversation with him when he told you that they were stopping your compensation, you would never get any more checks ⅜ ⅜ ⅜
A That’s what he said.
Q Now, when was it that you found out that the insurance company did not file your claim with the Industrial Accident Board?

An objection that the question implied a duty on the part of the insurer was sustained.

Following the above, Mrs. Moronko testified her husband wrote the Industrial Accident Board on December 7, 1965, for her. This was answered by the Board December 15. The letter to the Board gave the name and address of both the appellant and the employer, related rather fully the time, circumstances and nature of the injuries and stated that “so far” the insurance company (naming appellant) had been paying compensation and medical bills. Too, it recited the carrier’s agent had visited them and wanted to settle for $450.00 but they said “no” because Mrs. Moronko was still going to the doctor and might be permanently injured. Inquiry was then made if there was “a time limit on her $30.00 per week.” Too, it stated they hadn’t yet received a notification of the Board or a Board number in the case. The letter was received by the Board December 8.

On December 15, the Board replied by a letter enclosing the “Board’s Standard Notice of Injury and Claim for Compensation” form. The letter stated when the form was completed and returned the Board would be further able to assist Mrs. Moron-ko. It further stated that in filing the claim “include a separate signed statement setting forth the reasons for failure to file Notice of Injury and Claim * * * within six months of the date of the injury.” The last paragraph of the letter stated a carbon of the letter was being sent to Newberry’s and by such act the Board was requesting Newberry’s to file “Employer’s First Report of Injury” with the Board. At this point we note that Mr. Hall testified that the insurer always had the employer to file the first report with it and not the Board. Too, he testified the carrier did not send this report to the Board unless and until a dispute arose with the claimant. Too, he acknowledged knowing that when a first report of injury was sent to the Board, the Board sent its claim forms to the injured employee. The report of injury to Mrs. Moronko was sent to the Board by appellant on December 16, 1965, after the expiration of six months from the date of the injury. We note that Article 8307, Section 7, requires the employer to file the report with the Board within 8 days after the injury.

Mr. Hall was asked the following questions and gave the following answers:

q * * * You, of course, have been sitting here * * * and you heard Mrs. Moronko testify as to her conversations with you. Do you recall some telephone conversations with them?
A Yes, sir.
Q Do you deny that you told her that you would take care of everything, and for her not to worry about it?
A No, sir.

Mrs. jMoronko testified that when they got the letter from the Board they didn’t know how to answer so they decided to hire a lawyer to help them answer. She attempted to get in touch with the lawyer who ultimately did accept employment. She contacted him immediately, but he was unable to see her until a later date. He was busy on other matters and he told her to contact him at a later date. In January, 1966, they contacted him and signed a contract of employment January 11. She told the lawyer her distress, but he was busy and the Christmas season was on them and the lawyer said he would take care of it later. She thought they had to get a lawyer to help them.

The attorney testified Mrs. Moronko’s brother had been a client of his about ten years. The brother called him and told him his sister felt she was in need of legal services. He told the brother to have the sister call so he could discuss the matter and determine the action required. This was about December 17, 18 or 19, or possibly the 20thj just a short time before Christmas. She told him about the letter from the Board. He was working on several matters and particularly a securities matter that made it impossible to attend to the matter just at that time. Just as soon as the securities matter was finished he called her and set up an appointment. In her original conversation she gave him some information about her accident. She told him of the Board’s letter and possibly read it to him. He got the name of the doctor and thinks he called him. He was not real positive but he may well have called the Board. He was getting what information he could from the doctor so that when he was able to see Mrs. Mo-ronko he could go forward from that point. January 11, 1966 was the first time he was able to see her. He then obtained further information from Mrs. Moronko, including the reasons for not filing the claim. On this day the formal claim form was filled out and mailed to the Board in Austin. He was not formally employed as her attorney until this date.

If a claimant does not file a claim within six months after the date of the injury, she must show good cause why it was not done. The burden of proof is on the claimant to establish good cause and that it continued until the date it was actually filed. Texas Employers’ Insurance Ass’n v. Brant-ley, Sup., 402 S.W.2d 140. Ordinarily the test of good cause is that of ordinary prudence. Whether a claimant used the diligence of an ordinarily prudent person is usually a question of fact though the evidence in a particular case may be such as to show the absence of good cause as a matter of law. Each case must rest on its own facts. Hawkins v. Safety Casualty Co., 146 Tex. 381, 207 S.W.2d 370.

Construction of the record is to be liberally made in favor of the injured employee so as to effect the purposes of the Workmen’s Compensation Act.

As the case reaches us, the parties have treated the formal claim that was filed January 12, 1966, as being the claim filed by appellee, and apparently it was tried below on that theory. We have above noticed, however, the letter written to the Board for Mrs. Moronko by her husband dated December 7, 1965. To us it contains all of the information contemplated by law to be included in a claim. While it makes inquiry as to the length of time that payments continue, it states appellant has proposed a settlement of $450.00 which has been turned down because Mrs. Moronko is still under treatment and she might be permanently injured. We know of no particular form that is required. We know of no legal requirement that forms furnished by the Board be used. See Booth v. Texas Employers’ Insurance Ass’n, 132 Tex. 237, 123 S.W.2d 322, opinion adopted; Western Casualty Co. v. De Leon, Tex.Civ.App., 148 S.W.2d 446, dism., judgment correct. We are unable here to consider it as a claim because the letter was not introduced before the court to establish jurisdiction, but only its date was introduced. The claimant, where the timely filing of a claim is in issue, must by evidence establish the claim. Casualty Reciprocal Exchange v. Stephens, Tex.Com.App., 45 S.W.2d 143.

We call attention to this because our disposition of this appeal requires another trial. We feel unable, however, to consider this letter as controlling here because it was filed more than six months after the injury and the issues submitted to the jury related, when we consider the development of the evidence and the briefs here, to the formal claim filed January 12. We cannot hold as a matter of law that the evidence would show good cause for not filing prior to December 8.

We have recited the evidence concerning Mrs. Moronko’s reliance upon the representation of Mr. Hall that everything was being taken care of. Such has been held to constitute good cause, when found by the jury to amount to such. Trinity Universal Insurance Co. v. Christian, Tex.Civ.App., 289 S.W.2d 656, n. r. e. However, the difficulty here is that we are unable from the testimony to reasonably infer that the representations took place during the six months’ period. Further, we are unable to infer that her reliance continued until the formal claim was filed January 12, because the evidence shows that around December 7, Mr. Hall told her they would make no more payments of compensation. We must, therefore, in the state of the record, hold there is no evidence of probative force to support the jury’s answer to Special Issue No. 11.

There is some evidence of probative force, and it is sufficient, to support the jury’s finding to Special Issue No. 12, that appellant by paying the weekly benefits and medical payments from May 26, 1965 to December 14, 1965 led appellee to believe her claim had been filed. It has been held that such finding will support a jury’s finding of good cause. Fidelity and Casualty Co. of New York v. Ener, Tex.Civ.App., 97 S.W.2d 267, n. w. h. See also Texas Employers’ Ins. Association v. McDonald, Tex.Civ.App., 238 S.W.2d 817, writ ref.; and Texas Employers’ Ins. Ass’n v. Crain, Tex.Civ.App., 259 S.W.2d 905, n. r. e.

However, we are of the view that there was no evidence of probative force to the answer to Special Issue No. 13, that this constituted good cause up until the claim was actually filed, keeping in mind what we have above noted concerning the theory of the date of January 12. The reason for our holding is that when the Board sent Mrs. Moronko a form of claim, she knew it was being contended no claim had been filed and also compensation payments had been stopped.

There is the period of time between December 15 and January 11 that was material on the issue of good cause for delay in filing. No issues were submitted covering this period. We have noticed the evidence about her seeking the attorney’s advice and his investigation prior to employment and his action after employment. In the light of another trial, the possibility of this continuing to be material leads us to call this to the parties’ attention. We feel the evidence in the record before us raises an issue of good cause for this period of time. Gulf Casualty Co. v. Hughes, Tex.Civ.App., 230 S.W.2d 293, n. w. h.

We have read the complete statement of facts and find evidence of probative force to support the jury’s finding of total permanent disability. We also find such not to be against the overwhelming weight and preponderance of the evidence.

Since we have found error as above stated and since it is evident that the case was not fully developed, we reverse and remand the case for retrial.


author: PEDEN, Justice.

text:
    BESTWALL GYPSUM DIVISION, GEORGIA-PACIFIC CORPORATION, Appellant, v. PADGETT BROS. DRYWALL, a partnership, Appellee.
    No. 15253.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    March 14, 1968.
    Rehearing Denied April 4, 1968.
    Wendell S. Loomis, Houston, for appellant.
    Frank C. Fariss, Houston, for appellee.
   PEDEN, Justice.

Suit on a sworn account for building materials; a summary judgment was granted to defendant that plaintiff take nothing. The parties will be designated as they were in the trial court.

Plaintiff’s point of error asserts that summary judgment should not have been granted because fact issues were raised. Defendant contends plaintiff sold the materials to Builders Hardware Co., who sold them to defendant and that defendant paid Builders Hardware Co. for them.

Plaintiff’s original petition alleged that the materials were sold and delivered by the plaintiff to the defendant at the special instance and request of the defendant. No affidavit in the form suggested by Rule 185, Texas Rules of Civil Procedure, was attached, but copies of two invoices were.

An affidavit, as noticed below, was attached to plaintiff’s first amended original petition. With respect to such affidavit, we are only concerned with whether it helps plaintiff to raise any fact issues. It is the only part of any of plaintiff’s pleadings which was verified.

The invoices attached to plaintiff’s original petition are almost illegible. There is no dispute, however, that they show that the materials in question were sold by plaintiff to Builders Hardware Co. of Houston but were shipped to Padgett Bros. Drywall, the defendant.

The pertinent parts of' plaintiff’s affidavit are:

State of Oregon ~| 1- ss. County of Multnomah J
M. L. Talmadge being duly sworn by me, the undersigned Notary Public within and for the County and State aforesaid, deposes and says: that
(1) he is Treasurer of Georgia-Pacific Corporation a Corporation organized, existing, and doing business under and by virtue of the laws of the State of Georgia;
⅜ * * * ⅜ *
the Plaintiff in this cause, and as such he makes this affidavit; that this affi-ant is familiar with the books of original entry and of the business of said Plaintiff; that according to the said books of said Plaintiff, Defendant Padgett Bros. Drywall, Houston, Texas is indebted to said Plaintiff in the amount as is hereinafter set forth; that within the personal knowledge of this affiant said Defendant owes and is indebted to the Plaintiff in the amount as is hereinafter stated; that the account hereto annexed and made a part of this affidavit and marked “Exhibits_ to _ inclusive,” is just and true within the personal knowledge of this affiant; that the demand of the said Plaintiff in the above cause is for the reasonable and agreed purchase price of goods, wares and merchandise sold and delivered by said Plaintiff to said Defendant at the special instance and request of said Defendant; that there is now due, owing and unpaid to the said Plaintiff from the said Defendant after the allowance of all just credits, deductions and set-offs, the sum of Three thousand Six hundred Seventy-two and 92/100 Dollars; further affi-ant saith not. ($3,672.92)
/s/ M. L. Talmadge
M. L. Talmadge, Treasurer

A notary public’s verification is attached.

Defendant’s motion for summary judgment contains an affidavit by one of the partners of the defendant company, stating that he has personal and actual knowledge 1) that defendant did not purchase the materials in question from the plaintiff, 2) that defendant purchased them from Builders Hardware Co., as the defendant customarily did, 3) that no promise to pay was made to plaintiff, 4) that payment was promised to and made to Builders Hardware Co., and 5) that defendant does not owe plaintiff for the materials in question. Also, copies of invoices from Builders Hardware Co. billing defendant for building materials and copies of defendant’s checks are attached. Defendant’s affidavit further alleges that such copies of invoices cover the same materials and' that their checks, which are for a larger sum, represent payment for the materials in question and others.

Plaintiff’s invoices support defendant’s position, but it is noted that plaintiff offers no explanation; he merely alleges under oath 1) that according to the plaintiff’s books defendant is indebted to plaintiff as pleaded, 2) that within his personal knowledge the defendant owes and is indebted to the plaintiff in the amount pleaded, and 3) that the account is just and true within his personal knowledge.

Rule 166-A(e), T.R.C.P., provides in part that “Supporting and opposing affidavits shall he made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Plaintiff’s affidavit does not show that he is competent to testify as to the contents of the company’s books in compliance with Article 3737e, Vernon’s Ann. Civ.St., the Business Records Act, nor does it do more than set forth his conclusion of law that the defendant is indebted to the plaintiff.

Statements in affidavits which are conclusions of law are insufficient to raise a fact issue in a summary judgment proceeding. Marsalis v. Garre, 391 S.W.2d 522 (Tex.Civ.App., 1965, writ ref., n. r. e.); Farmers State Bank v. First State Bank of Liberty, 317 S.W.2d 768 (Tex.Civ.App., 1958, no writ hist.); Mason v. Mid-Continent Supply Co., 374 S.W.2d 922 (Tex.Civ.App., 1964, writ ref., n. r. e.).

Defendant’s motion and affidavit were filed on June 12, 1967. Plaintiff’s affidavit (which we have recited) was filed on July 14, 1967. Hearing on defendant’s motion for summary judgment was held on August 7, 1967.

As stated in Great American Reserve Insurance Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Tex.Sup., 1965):

Evidence which favors the movant’s position is not considered unless it is un-contradicted. If such uncontradicted evidence is from an interested witness, it cannot be considered as doing more than raising an issue of fact, unless it is clear, direct and positive and there are no circumstances in evidence tending to discredit or impeach such testimony. Cochran v. Wool Growers Central Storage, Co., 140 Tex. 184, 166 S.W.2d 904 (1943). This exception is especially true where the opposite party has the means and opportunity of disproving the testimony, if it is not true, and fails to do so.

citing Valley Stockyards Co. v. Kinsel, 369 S.W.2d 19 (Tex.Sup., 1963) and others.

The affidavit of the partner in the defendant company establishes a defense to plaintiff’s cause, and the formal affidavit of plaintiff does not discredit or impeach it.

The judgment of the Trial Court is affirmed.