author: DOERNER, Commissioner.

text:
    Robert J. SARGENT, Plaintiff-Respondent, v. Henry W. WEKENMAN and Mathilda Wekenman, Defendants-Appellants.
    No. 31413.
    St. Louis Court of Appeals. Missouri.
    Jan. 21, 1964.

      Wyne & Delworth, Edward J. Delworth, Clayton, for defendants-appellants.
    Granville L. Gamblin, Clayton, for plaintiff-respondent.
   DOERNER, Commissioner.

This is an action for a real estate broker’s fee claimed to have been earned by producing a proposed lessee of defendants’ property. Verdict and judgment below was for plaintiff for $6,000, from which defendants appealed.

Defendants were the owners of a lot located on the northeast corner of Olive Street and Warson Roads, in Creve Coeur, Missouri. They employed plaintiff as their exclusive agent to lease their property by executing a written listing agreement dated July 1, 1959, which was to remain in force for six months from that date. Shortly after it expired, plaintiff called the fact to their attention and was told to continue his efforts in their behalf. Among others contacted by plaintiff during the six months period was Eugene Mosley, who with his son, Clyde, was engaged in the manufacture of aircraft and missile parts. Eugene and Clyde Mosley owned all of the stock in three corporations, one of which was a sales company named Lambert-St. Louis Enterprises, Inc.

Although plaintiff had contacted Eugene Mosley before December 31, 1958, the date on which his written listing contract expired, plaintiff did not bring his negotiations with him to a successful conclusion until, apparently, sometime in April 1959 (plaintiff was indefinite as to dates). Plaintiff testified that he had the “Title Company” draw up a written lease, in which Lambert-St. Louis Enterprises, Inc. was the lessee, and had the instrument executed by Eugene Mosley, as president, and Clyde Mosley as secretary. Clyde Mosley testified on behalf of plaintiff that prior to its execution a meeting of the company’s board of directors was held, at which the entering into of the lease was authorized.

Following its execution by the proposed lessee, plaintiff presented the written instrument to the defendants and informed them that Eugene Mosley had given him a check for $3,000 for the first six months rent to be paid by the corporation, as provided in the lease. In connection with their consideration of the lease defendants examined a credit report on the company— obtained for them, according to the defendants (as stated in their deposition, which plaintiff introduced in evidence) by plaintiff, and by defendants’ lawyer, according to plaintiff. In any event, after studying the credit report and the proposed lease defendants refused to execute the latter instrument on the sole ground that they did not consider Lambert-St. Louis Enterprises, Inc., substantial enough to carry out the provisions of the lease.

Defendants introduced no evidence in their behalf. At the close of the case they submitted a motion for a directed verdict, which the court overruled, and the case was submitted to the jury with the result stated. Their first assignment on appeal is that the court erred in refusing their motion for a directed verdict. Four grounds are advanced under this point. Probably the most cogent reason advanced is that plaintiff failed to show he had produced a ready, willing and able lessee because (as expanded in the argument portion of defendants’ brief) there was no evidence that Lambert-St. Louis Enterprises, Inc. was financially able to fulfill the obligations imposed on it by the prospective lease. That point, however, was not presented in defendants’ motion for a directed verdict. The only grounds in the motion which bears even a slight similarity to the point now raised was limited to the plaintiff’s alleged failure to prove the corporate existence of Lambert-St. Louis Enterprises, Inc., and its authority to enter into a 99 year lease. Defendants have abandoned that ground and are thus seeking to present one here which was not passed upon by the trial court. Under our code of civil procedure a defendant who offers a directed verdict, authorized by Civil Rule 72.01, V.A.M.R., is required to make known to the trial court the grounds of his motion, either in the motion or orally. Civil Rule 79.01; Oganaso v. Mellow, 356 Mo. 228, 201 S.W.2d 365; Schubert v. St. Louis Public Service Co., Mo.App., 206 S.W.2d 708, aff. 358 Mo. 303, 214 N.W.2d 420; Meyer v. St. Louis Public Service Co., 241 Mo.App. 1057, 253 S.W.2d 525. Three of the grounds now sought to be raised were not stated in either manner, nor were they presented in defendants’ motion to set aside the judgment or for a new trial. We will therefore confine our consideration to the one ground which has been properly preserved for appellate review.

That ground is that plaintiff’s evidence failed to prove that the defendants had agreed to pay plaintiff a commission of $6,000. This requires a further statement of the evidence. - The listing contract executed by defendants was on a printed form intended to be- used' in listing property for sale, and provided that the owner agreed to pay plaintiff, “* * * the commission .fixed by the St. Louis County Real Estate Board as follows: 5% of gross amount of ■sale' * * However, plaintiff testified that he discussed the matter of his compensation with the defendants and told them -that his commission for obtaining a lessee would be five per cent of the valuation the defendants put on the property; that he mentioned to them the rules of the Real Estate Board; that these rules, read into evidence, provided that a broker’s compensation for leasing commercial property for more than 30 years, where he was not employed to collect the rent, was five per cent on the valuation of the property capitalized at five per cent; that using that formula the valuation of property leased for $6,000 per year wo'úld be $120,000, and the commission $6,000; and that when he presented the proposed lease from Lambert-St. Louis Enterprises, Inc., to the defendants he informed them of this. While the foregoing -evidence did not show a formal acceptance by defendants it is apparent therefrom that defendants' were aware that plaintiff expected them to pay him a commission of five per cent of the value of the property capitalized at five per cent and that they permitted him to expend time and money in endeavoring to find a lessee; that when the proposed lease from Lambert-St. Louis Enterprises, Inc., was presented to them, they were informed of the exact amount of commission plaintiff was charging, as well as the basis of the charge; and that they did not demur or refuse to pay the same, but received the document from plaintiff for the purpose of considering whether they would accept and sign it. Except where a particular mode of acceptance is prescribed by the offer, an acceptance may be manifested, “ * * * wholly or partly by written or spoken words or by other acts or conduct.” Restatement of the Law of Contracts, Vol. I, Sec. 21; 17 C.J.S. Contracts § 41a; Allen v. Chouteau, 102 Mo. 309, 14 S.W. 869; Botkin v. McIntyre, 81 Mo. 557. The evidence was sufficient to submit the issue of defendants’ acceptance to the jury and the court therefore did not err in overruling defendants’ motion for a directed verdict.

But for a number of reasons the judgment cannot be allowed to stand. The document executed by Lambert-St. Louis Enterprises, Inc., was not produced by plaintiff, and no satisfactory explanation as to its whereabouts or the reason for its non-production was offered. In its placplaintiff sought to introduce what plaintiff and Clyde Mosley testified was a “copy.” Whether it was a “copy” as distinguished from a “duplicate” (see Schroer v. Schroer, Mo., 248 S.W.2d 617; Adler v. Ewing, Mo.App., 347 S.W.2d 396) was not developed, and the court (we think correctly) excluded it. However, the court did permit, over the timely and proper objection of defendants, oral testimony regarding the terms of the proposed contract. In so doing the court erred, for the signed document was the best evidence as to what it contained, and no foundation had been established for the use of secondary evidence. Padgett v. Brezner, Mo.App., 359 S.W.2d 416.

Furthermore, while there was nothing to indicate that the Mosleys had agreed to be personally bound by the proposed lease, the court permitted the plaintiff to introduce, over defendants’ objections, evidence as to their wealth. Of course, plaintiff had the burden of proving that Lambert-St. Louis Enterprises, Inc., was a ready, willing and able lessee. For in order to recover his commission a real estate broker must show that he produced a buyer ready, willing and able to buy on the terms set by the owner or those satisfactory to him. Tant v. Gee, 348 Mo. 633, 154 S.W.2d 745; Morgan v. Keller, 194 Mo. 663, 92 S.W. 75; A. J. Meyer & Co. v. Schulte, Mo.App., 189 S.W.2d 183; Isaac T. Cook Co. v. Craddock-Terry Co., Mo. App., 109 S.W.2d 731. And the same rule applies to a broker employed to find a lessee. 12 C.J.S. Brokers § 85a, pp. 187, 191; Moseley-Comstock Realty Co. v. McClelland, Mo.App., 294 S.W. 103. Ordinarily the word “able,” as used in connection with a purchaser or lessee, refers to his financial ability. 12 C.J.S. Brokers § 85 b, pp. 192, 193; Isaac T. Cook Co. v. Craddock-Terry Co., supra. While plaintiff’s evidence indicated that the Mosleys were men of means, and the sole stockholders in Lambert-St. Louis Enterprises, Inc., such' testimony was neither competent or material to prove the financial condition of the company or its ability to fulfill the obligations imposed upon it by the proposed lease, and should not have been admitted.

Lastly, the verdict-directing instruction submitted by plaintiff is vulnerable, in part, to the attacks leveled at it by defendants. For example, plaintiff pleaded that he was employed to procure a lessee who would enter into a lease on certain terms and conditions specified by defendants, including a provision that the lessee would accept the property subject to an existing lease on a portion of the real estate. Plaintiff’s evidence showed the existence of such a prior lease but his instruction failed to require the jury to find either that plaintiff’s employment contract contained such a provision regarding the prior lease, or that the prospective lessee had agreed to accept the property subject to the existing lease.

For these reasons the judgment should be reversed and the cause remanded for a new trial. The Commissioner so recommends.

PER CURIAM:

The foregoing opinion by DOERNER, C., is adopted as the opinion of this court.

Accordingly, judgment is reversed and the cause remanded for a new trial.

RUDDY, P. J., and WOLFE and ANDERSON, JJ., concur.


source: Caselaw Access Project

author: MAUGHMER, Commissioner.

license: Public Domain

text:
    STATE of Missouri at the Relation of SMOCK TRANSPORTATION COMPANY, Inc., and Farmington Transfer, Inc., Plaintiffs, Appellants, v. Tyre W. BURTON, Chairman, William Barton, Frank luen, E. L. McClintock, D. D. McDonald, Members of the Public Service Commission of the State of Missouri, Defendants, Respondents.
    No. 23732.
    Kansas City Court of Appeals. Missouri.
    Dec. 2, 1963.

      Robert L. Hawkins, Jr., Graham & Hawkins, Jefferson City, for appellants.
    Glenn D. Evans, Gen. Counsel, Thomas J. Downey, Asst. Counsel, Jefferson City, for respondents.
   MAUGHMER, Commissioner.

Smock Transportation Company, Inc. and Farmington Transfer Inc. protestants, appeal from the circuit court judgment which affirmed the order of the Public Service Commission granting an extension of authority to Gordon Hart, d/b/a Gordon Hart Truck Line, a motor vehicle common carrier.

On December 8, 1959, Hart filed the application from which the present controversy arose. At that time he was generally authorized to transport general commodities (a) between Dexter, Bernie and Essex (cities in southeast Missouri) and St. Louis; (b) between Dexter and a 25 mile radius of Dexter to all points in the state, but subject to the restriction that he not render service to points along the regular route of another motor carrier from Poplar Bluff and its trade territory between Charleston and Sikeston and St. Louis. Hart also held interstate authority for service between Poplar Bluff and St. Louis over an interstate route through the State of Illinois — a route 37 miles longer than the direct intrastate one from Poplar Bluff to St. Louis. Hart maintains terminals at St. Louis, Dexter, Poplar Bluff, Malden and Sikeston.

By his present application Hart sought intrastate authority between St. Louis and its commercial zone and [1] Poplar Bluff over Highway 67; [2] Malden over routes 67, 61 and 25; [3] Bloomfield over routes 61, 67 and 25; [4] Sikeston over routes 61, 67 and 74 and return.

The Commission, after a hearing, entered its conclusions and order in part as follows:

“This application, as disclosed by the evidence, seeks alternate routes intrastate to serve points which are authorized interstate and have been included in the regular course of applicant’s transportation. While, in our opinion, the economic phase alone is not sufficient to warrant the granting of this authority, there is a showing that applicant’s service to the public may be bettered and convenience and necessity enhanced by granting authority to some points already served without detriment to existing protestant carriers who operate over certain regular routes. The fact that the applicant has maintained terminals at points to be served in this State would further justify this conclusion.
“Therefore, we find from the evidence that the public convenience and necessity will be promoted and there is public need for the creation of a part of the service proposed and the applicant is qualified properly to perform the proposed service and to conform to the provisions of the Statutes, rules and regulations of the Commission established thereunder”.

The order then recites that Hart “be and he is hereby granted additional authority to operate over presently authorized intrastate regular routes transporting property as follows: Between St. Louis and its commercial zone, on the one hand, and Dexter, Malden and Poplar Bluff, on the other hand”. The application in all other respects was denied.

Appellants sought review by the circuit court of that part of the order which authorized transportation of freight between St. Louis and Poplar Bluff. The circuit court, by its judgment, affirmed the Commission and appellants have appealed on the ground that there was no competent and substantial evidence presented tending to show that public convenience and necessity will be promoted or that there is a public need for the service authorized.

The applicant testified that his terminals were open day and night and that he had been rendering service on a 24 hour per day basis. He said that operating on Highway 67 between Poplar Bluff and St. Louis, rather than over his authorized interstate route through Illinois, would save 37 miles of night driving and expenses of $11.84 per truck per night in operating expenses.

Mr. J. B. Jeffrees, who resides in Poplar Bluff, testified that' he operated wholesale grocery businesses in Dexter and Poplar Bluff, but spent all his time in the Dexter enterprise. He stated that the St. Louis wholesalers and suppliers were moving from the city into the county or into what is usually described as the St. Louis commercial area; that both the Dexter and Poplar Bluff stores received daily shipments from that area, that “we get shipments daily from Hart Truck Line whose service we have used and found satisfactory since 1952”. On cross-examination this witness admitted that he worked exclusively in the Dexter area and did not have personal knowledge of what other freight service was vailable at Poplar Bluff. He said the business at both places required overnight service from St. Louis.

Mr. Carl E. Roberts testified that he and his father had been engaged in retailing heating and air conditioning supplies in Poplar Bluff for 19 years. He said their business required overnight delivery service from St. Louis; that he used Hart for this purpose and that such service has been satisfactory. He said appellant Smock’s delivery service had been used occasionally but that it was not satisfactory, was not as prompt as Hart’s and that Smock had lost one of his air-conditioners in transit.

Mr. Burgess A. Lockhart has operated the Pepsi-Cola Bottling Company at Mal-den for 23 years, and said this business required overnight delivery service from St. Louis, which has been furnished by Hart in a satisfactory manner.

Witness James M. Corder operates a wholesale candy business in Malden. He said he required daily shipments from St. Louis and had used Hart’s delivery service and found it satisfactory. He said he had on occasion used “Tucker and Jones” but their deliveries “were 24 hours too late”.

Walter L. Smith, principal owner of Smock, and Lloyd Emerson, manager and vice-president of Farmington Transfer, each testified that their companies had sufficient first class equipment to render complete service between St. Louis and Poplar Bluff on a daily basis, that each company can adequately service all customers in the area, including the Roberts Heating and Air Conditioning business, and that the granting of Hart’s application as to Poplar Bluff would be detrimental to their business.

It is true, as appellants state, that the only appeal is as to that part of the order allowing Hart to operate between Poplar Bluff and St. Louis. However, Malden, Dexter, Bloomfield, Sikeston and Poplar Bluff are all smaller cities in southeast Missouri and on the same highway routes to St. Louis. The request and permission to serve Poplar Bluff must be considered in connection with the authority Hart already had — intrastate and interstate — in this general area and the additional authority sought in order to see the complete picture and be thereby enabled to determine if the permit allowing him to use the Poplar Bluif-St. Louis intrastate route was reasonable.

On page 8 of appellants' brief we find this statement: “Fundamentally, appellants’ position in this case is that the Public Service Commission’s order granting Hart authority to transport freight between St. Louis and Poplar Bluff on intrastate routes is not supported by substantial evidence and that it is therefore arbitrary and capricious”.

The scope and limitations as to appellate review of an order of the Public Service Commission are quite different from the procedures in the ordinary equitable or nonjury case. The action of the Commission in making the order is not triable de novo, State ex rel. Transport Delivery Co. v. Burton et al., Mo.App., 317 S.W.2d 661, 663. The courts may merely review and determine if the order is supported by competent and substantial evidence, Section 386.510, V.A.M.S. In State ex rel. Alton Transportation Co. v. Public Service Commission of Missouri, Mo., 49 S.W.2d 622, it was held that the power to grant or refuse a certificate of convenience and necessity to supply carrier service is committed within defined limits to the Commission’s discretion and not to the courts. This court (State ex rel. Scofield v. Public Service Commission, 240 Mo.App. 603, 211 S.W.2d 547) ruled that priority in the field while an element to be considered is not of itself conclusive as to the granting or refusing a certificate to an intrastate motor common carrier. And our Supreme Court in State ex rel. City of Sikeston v. Public Service Commission of Missouri, 336 Mo. 985, 82 S.W.2d 105, 110, said: “The question of whether regulated monopoly or regulated competition will best serve the public convenience and necessity in a particular area at any time is for the commission to decide, subject to the qualification that the commission must not act arbitrarily or unreasonably, which matter is reserved to be passed upon by the courts”. See also the similar conclusions recently stated by this court in State ex rel. Associated Transports, Inc. v. Burton et al., 356 S.W.2d 115, 119, 120.

Section 390.051(5), V.A.M.S. provides:

“In determining whether a certificate should be issued the commission shall give reasonable consideration to the transportation service being furnished by any common carrier by rail or motor vehicle and the effect which the proposed transportation service may have upon such carriers; provided, that the issuance of a certificate of convenience and necessity to one carrier shall not prohibit the granting of such certificate to another carrier over the same route if in the opinion of the commission the public convenience and necessity will be promoted by so doing”.

Appellants concede that the order here is lawful, that is, the Commission had statutory authority to issue it. The only question before us then is, was the order based upon competent and substantial evidence on the whole record. If it was, then we must affirm. If the whole record contains no competent and substantial evidence on which to base the order, then it is arbitrary and capricious and we may reverse it.

Before the present order was made Hart was serving various cities in southeast Missouri, to St. Louis and return, under intrastate authority but not Poplar Bluff. However, for more than ten years he has hauled freight for Mr. Roberts and Mr. Jeffrees from Poplar Bluff to the St. Louis commercial area and return, but under an interstate certificate by which he was required to travel a route through Illinois which trip was 37 miles longer than the direct Missouri route, and which quite apparently added to his overhead expenses. Appellants contend that this additional competition between St. Louis and Poplar Bluff over Highway 67 will be detrimental to their business. In this connection it should be noted that the Commission denied Hart authority to perform transportation services generally along this route.

Appellants, as protestants, invite our attention to the opinions in State ex rel. Missouri, Kansas & Oklahoma Coach Lines v. Public Service Commission, Mo.App., 179 S.W.2d 132; State ex rel. Transport Delivery Co. v. Burton et al., Mo.App., 317 S.W.2d 661, and State ex rel. Associated Transports, Inc. v. Burton et al., Mo.App., 356 S.W.2d 115, as supporting their position for a reversal of the action of the Commission. However, in each of those cases the order of the Commission granting the certificate was approved and affirmed.

In our opinion this case is an uncomfortably close one. Appellants protest that the granting of such authority to Hart between Poplar Bluff and St. Louis will be detrimental to their business. Since Hart was denied authority along the direct route from Poplar Bluff to St. Louis, since he was already serving from Poplar Bluff to St. Louis and return, even though interstate through Illinois, rather than direct along the intrastate route, and since he has for many years been serving his Poplar Bluff customers, we find it difficult to conclude that appellants’ business will be materially damaged by this order.

Under the record here, the heating, plumbing and air conditioning business of Mr. Carl E. Roberts in Poplar Bluff, which requires daily freight service to and from St. Louis, has used the Hart line since 1952. A business of this size requiring daily deliveries in order to supply its customers promptly and adequately, it is a business which affects at least a segment of the public living in the area. Any impairment of its regular, prompt and efficient delivery service from its St. Louis suppliers could reasonably, we think, be determined to be detrimental to the public convenience and necessity. Any improvement of that service or any order maintaining the present high standards (which Roberts said Hart had been furnishing) could, we think, reasonably be said to be in the furtherance or maintenance of the public convenience and necessity. There was also somewhat similar testimony from Mr. Jeffrees regarding his furniture stores in Dexter and Poplar Bluff, although he was only personally and intimately familiar with the situation in Dexter.

Does this evidence show that the public convenience and necessity calls for the issuance of the certificate to Hart? If we were charged with the responsibility of answering that question initially — if we were trying the case de novo — we might have difficulty in ruling that it reasonably requires approval of Hart’s application. However, we think that the evidence offered was both substantial and credible on the issue.

There is a further material condition here which does not usually, we presume, exist. We refer to the fact that Hart is already transporting freight to and from Poplar Bluff and St. Louis but over the interstate Illinois route. This route is 37 miles longer than the intrastate route would be and this, of course, adds to his overhead costs. In the exercise of its management control over the routes of motor freight carriers, it is reasonable for the Commission to eliminate such unnecessary costs if possible, and to permit travel along the shortest route. That is actually what the Commission has done here. The order really does not enlarge Hart’s “trade area” insofar as Poplar Bluff and intrastate route 67 to St. Louis is concerned, but rather permits him to continue serving his present customers and any others which he may secure in the future, over the shorter and quicker intrastate route instead of requiring him to continue the longer interstate route from Poplar Bluff through Illinois to St. Louis. We believe this is a factor which the Commission had a right to consider and which weighs in support of the reasonableness of the order.

As stated above, this is an uncomfortably close case. It may be one so close that the exercised discretion of the Commission would tip the balance either way. We hold there is some substantial and credible evidence that the granting of the certificate here to Hart will better his service to the public, and that the public convenience and necessity will be enhanced thereby. We observe again that his already holding an interstate certificate to transport freight from Poplar Bluff to St. Louis adds to the reasonableness of this order to transport intrastate between the same cities.

The Public Service Commission was created by the Legislature to serve as a body of experts within its fields. It is familiar with the over-all transportation picture in the area. It must exercise management and control over routes and authorizations. We are unable to rule that by making the order here the Commission has abused its discretion, acted arbitrarily or capriciously, or that the judgment is unsupported by substantial and credible evidence.

Therefore, the judgment of the circuit court affirming the order of the Commission is affirmed.

SPERRY, C., concurs.

PER CURIAM.

The foregoing opinion of MAUGHMER, C., is adopted as the opinion of the Court.

All concur.


author: SMITH, Justice.

text:
    HOUSTON PIPE LINE COMPANY, Petitioner, v. Roberta Powell DWYER et al., Respondents.
    No. A-9508.
    Supreme Court of Texas.
    Jan. 8, 1964.
    Rehearing Denied Feb. 12, 1964.
    Fulbright, Crooker, Freeman, Bates & Jaworski, B. J. Bradshaw, Houston, with above firm, for petitioner.
    Fountain, Cox & Gaines, Vinson, El-kins, Weems & Searls, James W. McCartney, Houston, with above firm, for respondents.
   SMITH, Justice.

Respondents, Roberta Powell Dwyer et al., plaintiffs in the trial court, instituted this suit on October 3, 1960, against petitioner, Houston Pipe Line Company. The parties will hereafter be designated as in the trial court.

Plaintiffs sought judgment declaring a pipeline easement across their land to have lapsed and terminated as a result of defendant removing an 18-inch relatively low pressure pipeline and replacing it with a 30-inch high pressure pipeline, and for judgment removing the easement as a cloud on their title. Plaintiffs further sought to enjoin defendant from further operation of the pipeline, and to recover rental from defendant. In the alternative plaintiffs sought damages. This alternative claim was later withdrawn.

Defendant answered that its rights under the easement agreement entered into between the parties had not lapsed and terminated. In an alternative cross bill defendant sought to condemn a right of way and easement in the event it should be determined that the right of way easement granted in the 1926 agreement between the parties had lapsed or terminated “ * * * or that for any reason [defendant] does not have a valid subsisting easement for laying, construction, maintenance, inspection, operation, repairing, substitution, replacing and removal of the pipe and pipe line presently on the land for the transportation of gas.”

Both parties filed motions for summary judgment. Defendant’s motion was granted and plaintiffs’ was denied. The Court of Civil Appeals for the First Supreme Judicial District at Houston, Texas, reversed and remanded for trial “not inconsistent with [its] opinion.” 364 S.W.2d 736.

The duty of this court, where a motion for summary judgment has been granted, is to determine if there are any issues of fact to be tried. See Smith v. Bolin, 153 Tex. 486, 271 S.W.2d 93; Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929. A summary judgment is not proper if the evidence raises issues of fact to be determined by a court or jury. See Smith v. Bolin, supra; McDonald on Texas Civil Practice, Vol. 4, Sec. 17.26, pp. 1380, 1382.

The facts giving rise to the present litigation are as follows: On or about March 9, 1926, plaintiffs’ predecessors in title executed and delivered to Houston Pipe Line Company a right of way and easement agreement covering certain properties now owned by plaintiffs. This agreement was contained in a printed form prepared by defendant, which the parties changed by several deletions and inter-lineations. Prior to the deletions, the granting clause of the instrument read as follows:

“First party [plaintiffs] * * * does hereby grant, sell and convey unto second party a right of way to lay, maintain, operate, repair and remove a Pipe Line for the transportation of gas. * * * ” (Emphasis added.)

The parties struck out the words “and remove” from the granting clause. They also deleted a paragraph in the habendum clause giving the right to construct additional pipelines over said lands. In another part of the instrument they authorized a removal of the pipeline upon termination of the easement.

The agreement in question contains no specifications for the size of the pipeline. Also, the agreement does not prescribe metes and bounds for the easement, nor does it define a course or direction for the pipe to follow across the land.

As originally constructed, the pipe used in the pipeline was 18 inches in diameter. This pipeline, laid in 1926, was continuously in operation, serving the area of east Harris County until the latter part of 1959. On or about December 15, 1959, defendant removed the old 18-inch line which it had originally laid, reditched the property and installed a 30-inch pipe along the same course. During this replacement, the transportation of gas ceased for a few weeks.

We are of the opinion that the evidence outlined above does not raise an issue of fact to be determined by a court or jury. No contention is made in this court to the contrary. A determination of this case depends upon a proper construction of the 1926 agreement entered into between the parties.

It is plaintiffs’ position that in construing the 1926 agreement, the fact that the words “and remove” were struck from the granting clause should be considered by the Court in order to arrive at the intention of the parties. Plaintiffs contend that the agreement, as changed, authorized the construction, maintenance, operation and repair of one pipeline only, and did not authorize its replacement or removal except upon termination of the easement as provided in the habendum clause. Plaintiffs insist that upon removal by defendant of its 18-inch line, its rights and easements terminated. Defendant answers that, apart from whether it exceeded its rights by replacing the original pipe with larger pipe, it was at least authorized under the agreement to remove and replace the original pipe when the condition of the pipe required such replacement, and that such replacement would not terminate its easement.

The deletions made by the parties in the 1926 agreement may be considered by this court in order to arrive at the true meaning and intention of the parties. See Gibson v. Turner, 156 Tex. 289, 294 S.W.2d 781. The granting clause of the agreement, after deletions, authorized defendant to “lay, construct, maintain, operate (and) repair” a pipeline. Defendant contends that even though the grantors struck the words “and remove” from this granting clause, the words left by the grantors are consistent with the right to remove and replace the original pipe when conditions make it necessary. This court has previously considered what “operating” and “maintaining” mean in relation to a pipeline. See Big Three Welding Equipment Co., Inc. v. Crutcher, Rolfs, Cummings, Inc., 149 Tex. 204, 229 S.W.2d 600. In that case, the “ordinary, usual” meanings of these terms were accepted and applied. The sources in which this court found these meanings were Webster’s New International Dictionary, Black’s Law Dictionary and Words and Phrases. Defendant contends that an application of the ordinary and usual meaning of the term “remove” as defined by these dictionaries, relegates to insignificance the striking of this term from the granting clause because “remove” is defined by the dictionaries as meaning “to relocate” or “to put in a different place.” It is defendant’s position that such a definition leads to the conclusion that the grantors struck the words “and remove” from the agreement because they did not want the pipe to be relocated once it was established, and not because the grantors intended to prevent replacement of the pipe.

If plaintiffs are correct in their contention, then defendant’s rights and easement under the 1926 agreement would terminate simply by removing and replacing the original pipe, regardless of its condition, with pipe of any size. The agreement in question does not compel such an unreasonable result. We hold that the terms “operate” and “maintain” in the granting clause are at least broad enough to include the right to remove and replace the original pipe with pipe of the same size when necessary. See Big Three Welding Equipment Co., Inc. v. Crutcher, Rolfs, Cummings, Inc., supra. Defendant’s easement rights did not terminate by its merely removing the original 18-inch pipe.

Plaintiffs contend in the alternative that if defendant’s easement rights have not terminated, still defendant had no right or easement to construct, maintain and operate the 30-inch line laid across plaintiffs’ land. Defendant answers that if the plaintiffs did not want defendant to have the right to replace and increase the size of the pipe at any time, it was incumbent on plaintiffs to provide against such right in the 1926 agreement, and that .any doubt or ambiguity in the instrument is to be resolved against the grantor plaintiffs. It is a well-recognized rule of construction that any ambiguity in an instrument granting an easement is to be resolved against the grantor. See Gulf View Courts, Inc. v. Galveston County, Tex.Civ.App., 150 S.W.2d 872, wr. ref’d. But there is another equally well-settled rule of construction that where an instrument is open to two reasonable constructions, it will be strictly construed against its author. See, e. g., Universal C. I. T. Credit Corporation v. Daniel, 150 Tex. 513, 243 S.W.2d 154. The 1926 agreement in the present case was a printed form of the grantee defendants.

Defendant contends that the basic legal principles applicable to this case are that the holder of an easement is entitled to full enjoyment thereof and, when the purpose or object of the easement is stated in general terms, the holder has the right to employ whatever means may be reasonably necessary for its full enjoyment. Defendant asserts that the courts, in applying these principles, have permitted changes to be made in the means or instrumentalities employed to accomplish the stated general purpose. Although defendant cites many cases as authority for its position, it primarily relies on the case of Knox v. Pioneer Natural Gas Company, Tex.Civ.App., 321 S.W.2d 596, wr. ref’d., n. r. e.

The holding in the Knox case cannot be followed in the present case. In that case the language of the grant clearly gave the grantee a right in excess of the one actually used, whereas, there is no language in the present agreement which can be construed to permit the grantee a right in excess of the right actually used, that is the right to increase the size of the pipe in excess of 18 inches in diameter. The present case is more in harmony with the case of Onthank v. Lake Shore & M.S.R. Co., 71 N.Y. 194, 27 Am.Rep. 35. In that case the rights granted were limited, and did not provide for the removal of the pipeline. The Court in the Knox case declined to follow the holding in the Onthank case, stating that the agreement in the case at bar was not so limited, but allowed the grantee a right of way of sufficient width to permit the grantee to lay, maintain, operate and remove a pipeline for the transportation of gas, for the express purpose of constructing and placing on, in and under the surface of the ground a pipeline over and through said lands. The Court in the Knox case further pointed out that the agreement granted to the grantee the right to enter upon the land at all times for the purpose of making additions to, improvements on, and repairs to said pipeline and to keep and maintain the same and to remove or replace the same. No such rights were granted in the present case. The grantee’s rights in the present case were limited to “laying, constructing, maintaining, operating and repairing a pipeline.” This the grantee has done by laying an 18-inch line. As in the Knox case, defendant in the present case, due to demands for gas, has replaced the pipe originally installed with pipe of greater carrying capacity. However, unlike the Knox case, defendant has replaced the old line with pipe of substantially greater size. The replacement of the old 18-inch line with a 30-inch line necessitated the digging of a ditch some 36 to 40 inches in width, thereby widening the ditch as well as placing the pipe approximately two feet deeper than it was in the original ditch.

If defendant is correct in its contentions that the 1926 agreement authorized an increase in the size of the pipeline every time an increased demand for gas made such enlargement necessary, the extent of the easement could never become fixed or definitely ascertainable. Although there is no limitation on the size of the pipe to be laid, it does not necessarily follow that the parties, for a consideration of $32.00, intended to burden their land with-an easement which might be enlarged over and over again, as often as an increase in demands for gas might make it necessary. See Winslow v. City of Vallejo, 148 Cal. 723, 84 P. 191, 5 L.R.A., N.S., 851.

The purpose or object of the easement in this case is stated in general terms —transportation of gas by pipeline. Plaintiffs contend that when defendant originally constructed its 18-inch pipeline, it limited and defined the extent of its easement rights under the 1926 agreement. The following general rule is set out in Thompson on Real Property, Perm. Ed., § 681:

“A grant in general terms of a right to lay a pipe for the purpose of conducting water across the land of the grantor without specifying the place for laying it or the size of the pipe is defined and made certain by the act of the grantee in laying down the pipep and after he has once laid the pipe with the acquiescence of the grantor, the grant which was before general and indefinite becomes fixed and certain and the grantee can not change the easement either by relaying the pipe in another place or by increasing its size.”

This rule is specifically applicable to the present case. We hold that when defendant constructed its 18-inch pipeline with the consent and acquiescence of the plaintiff, the extent of defendant’s easement rights under the 1926 agreement became fixed and certain. See Bland Lake Fishing and Hunting Club v. Fisher, 311 S.W.2d 710, Tex.Civ.App., no wr. hist.; Winslow v. City of Vallejo, supra; See also Thompson on Real Property, supra; 17-A Amer.Jur., p. 722, Easements, § 112. Defendant was not authorized to remove this 18-inch line initially constructed and replace it with a line of substantially greater size.

The Court of Civil Appeals’ judgment reversing the trial court’s action in granting the summary judgment and remanding the cause for trial is affirmed, but trial shall he conducted consistent with this opinion.


author: DICE, Commissioner.

text:
    Shelton H. NESBIT, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 36412.
    Court of Criminal Appeals of Texas.
    Jan. 29, 1964.

      James M. Gerdeman, Lubbock, for appellant.
    Fred E. West, County Atty., Broadus A. Spivey and Wm. Quinn Brackett, Asst. County Attys., Lubbock, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for giving a worthless check; the punishment, a fine of $100.

Trial was before the coujt without a jury. The prosecution, originating in the county court, and the conviction were under Art. 567b, Vernon’s Ann.P.C., prior to the effective date of its amendment by the 58th Legislature, Acts 1963, ch. 268, page 729.

The complaint and information alleged that appellant did unlawfully, with intent to defraud, make and deliver to Kenneth Owens a check in the sum of $40.92, for which he received something of value.

It was further alleged that, at the time the check was delivered, appellant knew that he did not have sufficient funds in the bank to pay the same and that when it was presented to the bank, payment was by the bank refused.

A motion to quash the complaint and information was filed by appellant and overruled by the court. The complaint to the court’s action is not properly before us for review, as no exception was reserved by appellant to the court’s ruling. Mobley v. State, Tex.Cr.App., 365 S.W.2d 173.

At the trial, the prosecuting witness, Kenneth Owens, testified that he was a route salesman for the Borden Company and that his duties were to sell and deliver milk from house to house. The witness identified as state’s exhibit #1, the check described in the complaint and information as one which appellant gave to him on January 10, 1963, for milk delivered. He stated that he later deposited the check and it was returned unpaid and that on January 17, 1963, he notified appellant that the check had been returned, but that the check had never been paid.

Appellant insists that his conviction can not be sustained because of a fatal variance between the state’s pleading and the proof. It is contended that there is such variance because the complaint and information charged that he obtained something of value for the check and the state’s evidence and theory were that the check was given for a pre-existing debt. Reliance is had upon Norman v. State, Tex.Cr.App., 338 S.W.2d 714, in which a conviction for giving a worthless check was reversed where the state’s pleading charged that the accused did procure a thing of value by giving a check and the state’s theory and proof were that the check was given for a pre-existing debt.

We find appellant’s contention well taken.

The prosecuting witness, upon being examined concerning what appellant gave him the check for, testified:

[“Q All right. Now, what was this check for?] A It was for milk.
[“Q For milk. For milk that you delivered to his house?] A Yes.
* * * * * *
[“Q Now, it was to pay for milk that he received, is that correct?] A Yes, it was for milk delivered.
* * * * * *
[“Q Kenneth, whát was that check given you for?] A For milk.
[“Q Milk. Payment on a milk bill?] A That’s what I was trying to get it for, that’s what — for milk that he owed me.”

The witness’s testimony shows that the check was given by appellant in payment of a bill for milk which had been delievered.

The check was, therefore, given in payment of a pre-existing debt, which was not alleged in the complaint and information.

Under the authority of Norman v. State, supra, the conviction can not stand.

The judgment is reversed and the cause is remanded.

Opinion approved by the Court.


text:
    John E. NEAL, Appellant, v. The STATE of Texas, Appellee.
    No. 36448.
    Court of Criminal Appeals of Texas.
    Jan. 29, 1964.
    Rex Emerson, Houston (Court Appointed Attorney on Appeal Only), for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James I. Smith, Jr. and Jon N. Hughes, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is murder; the punishment, 30 years confinement in the State Penitentiary.

Appellant was jointly indicted with three others, but severance was granted and appellant was tried alone.

Since this is a companion case to that of James Stafford Harris, Harris v. State, Tex.Cr.App., 370 S.W.2d 886, recently affirmed by this court, the facts being substantially the same will only be briefly stated.

A group of 5 young men which included appellant, started an argument with deceased who was walking home on an empty street in the company of a young female companion. A fight ensued, deceased was kicked in the back and struck many blows by members of the group. Appellant’s confession admits that he was among the group and that he personally hit deceased twice with a large board. Appellant, testifying in his own behalf, said he hit deceased around the shoulder and denied striking deceased in the head with the board and further stated that he struck back in his own self-defense.

Appellant identified a board brought into the courtroom as resembling the board used by him in the affray.

Detective J. M. Thornton, a witness called by the state, testified that the board in question, when used as a club in the hands of a man the size and strength of appellant, in a swinging, and striking motion * * * with force against the head or body of another adult human being was a means that would be calculated to produce death.

The deceased did not die as a direct result of a blow to the head, but died five days later because of complications growing out of a fractured jaw and two fractured ribs which he sustained during the course of the assault upon him. From these fractures, according to expert medical testimony, there was released into the blood stream fat emboli which, when the emboli reached the lungs, caused an impairment of the pulmonary function which eventually caused death.

The jury resolved any conflict in favor of the state, and we find the evidence sufficient to support their verdict. Harris v. State, supra.

It is insisted by appellant that the trial court erred in not instructing a verdict of not guilty in that there was a fatal variance between the indictment and the proof adduced at the trial

The indictment alleges that the appellant killed Edward Holmes on or about the 16th day of June, 1962, and the evidence reflects that death occurred June 20th, 1962, and the indictment was returned on July 12, 1962. We cannot agree that this constitutes a fatal variance. The State was not bound by the date alleged in the indictment and could prove that the offense was committed before, on, or after the date alleged so long as the date was anterior to the presentment of the indictment. Rangel v. State, Tex.Cr.App., 352 S.W.2d 275; Mitchell v. State, 168 Tex.Cr.R. 606, 330 S.W.2d 459; Madeley v. State, 165 S.W.2d 351, 307 S.W.2d 584.

Appellant’s remaining contention, that the trial court committed error in failing to charge on specific intent to kill is also without merit as an examination of the record does not reflect that appellant, either by objection or requested charge, made any complaint to the court’s charge as given. See Clough v. State, 161 Tex.Cr.R. 454, 278 S.W.2d 847, where it was stated, “In as much as appellant preserved no exceptions or objections to the charge of the court, we are not authorized to consider his contention that a charge of specific intent to kill should have been given.” See also Campbell v. State, 168 Tex.Cr.R. 520, 329 S.W.2d 875, and Weeaks v. State, 163 Tex.Cr.R. 226, 289 S.W.2d 758.

Finding the evidence sufficient to sustain the verdict, and no reversible error appearing, the judgment is affirmed.


author: MORRISON, Judge.

text:
    Joe TORRES, Appellant, v. The STATE of Texas, Appellee.
    No. 36127.
    Court of Criminal Appeals of Texas.
    Jan. 8, 1964.
    Rehearing Denied Feb. 12, 1964.

      No attorney for appellant on appeal.
    Guilford L. Jones, Dist. Atty., Big Spring, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

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

The offense is murder; the punishment, 15 years.

Evidence was introduced by the State to the effect that, without any words being exchanged or any overt action on the part of the deceased, the appellant walked up to deceased, put a pistol to his head and shot him. The appellant introduced evidence of communicated threats plus evidence of the first overt act being committed by the deceased in that deceased drew a knife and “jumped” toward appellant, who was seated at the time. This followed a demand on the part of appellant that deceased pay him some money that he owed him, which deceased refused to do. It was further shown that appellant and deceased lived in the same section of the city of Big Spring and frequented the same retail beer establishments in that section where this homicide occurred. The trial court submitted the issue of self defense from real or apparent attack.

The jury resolved the conflict in the evidence against appellant, and we find it sufficient to support the conviction. No formal bills of exception accompany the record and no brief has been filed.

While it is true that the trial court limited appellant’s cross examination of the State’s witnesses as to deceased’s reputation, this was done at a time when no issue had been raised as to self defense or who began the difficulty. When such issue was raised, the court offered to permit appellant to question such witnesses in the jury’s presence, but appellant declined such offer and merely requested that the court reporter read the entire testimony of such witnesses developed in the absence of the jury. This request was denied. The procedure proposed by appellant’s counsel is not authorized by statute.

Appellant did call one witness in the presence of the jury and propounded the desired question, but the State’s objection was sustained. In perfecting his bills of exception, it was shown that the witness had no knowledge of the characteristic to which the court had sustained the State’s objection, and hence, appellant was not injured by the court’s ruling.

Finding no reversible error, the State’s motion for rehearing is granted and the judgment is affirmed.


author: BELCHER, Commissioner.

text:
    Algle Marion KENT, Appellant, v. The STATE of Texas, Appellee.
    No. 36174.
    Court of Criminal Appeals of Texas.
    Nov. 27, 1963.
    Rehearing Denied Feb. 5, 1964.
    John P. Spiller, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. E. Dally, Joe C. Shaffer and Sidney L. Farmer, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for driving while intoxicated; the punishment, ten days in jail and a fine of one hundred dollars.

It is undisputed that the appellant while driving his pickup on a public highway collided with an automobile which was stopped facing a red traffic light at a street intersection.

A passenger in the automobile testified that appellant mumbled while talking and appeared to be drunk. Two police officers testified that they saw the appellant at the scene of the collision, smelled the odor of alcohol on his breath, observed his speech and walk, and expressed the opinion he was intoxicated.

Chemist McDonald testified that an analysis of a specimen of urine shown by the records to be that of the appellant was made under his supervision by his assistant, Bob Crawford, and that the records of said analysis revealed that the specimen had an alcoholic content of 0.37 per cent, which in his opinion is indicative of intoxication.

Testifying in his own behalf, the appellant admitted drinking three beers before the collision but denied that he was intoxicated at such time. He further testified that after the collision and before Officer Young arrived he had two drinks of Vodka.

Appellant insists that the trial court erred in the admission of the testimony of Chemist McDonald of the results of the urine analysis, on the ground that it was hearsay in that he did not make the analysis himself.

A chemist under whose supervision laboratory analysis of certain specimens are made, by another chemist in said laboratory, may testify from records of the laboratory as to the results thereof. Bryan v. State, 157 Tex.Cr.R. 592, 252 S.W.2d 184; Jackson v. State, 159 Tex.Cr.R. 228, 262 S.W.2d 499; Leonard v. State, 161 Tex.Cr.R. 470, 278 S.W.2d 313; McCray v. State, Tex.Cr.App., 365 S.W.2d9; Meadowes v. State, Tex.Cr.App., 368 S.W.2d 203.

Appellant complains of the trial court’s action in limiting his argument to the jury to fifteen minutes. This complaint is not in any manner authenticated or presented in the record in any form which would authorize its consideration.

There are no formal bills of exception, and no objections to the court’s charge nor any requested charges.

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

Opinion approved by the Court.


text:
    Casodrey SHIVERS, Appellant, v. The STATE of Texas, Appellee.
    No. 36481.
    Court of Criminal Appeals of Texas.
    Jan. 29, 1964.
    Davis Bailey, Carthage, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is the unlawful sale of whiskey in a dry area; the punishment, a fine of $300.00.

Our able State’s Attorney confesses error, and we agree.

Agent Hammond of the Liquor Control Board testified that on the day in question he bought a half pint of whiskey from L. B. Hill, who was employed at the Shivers service station in Panola County, and that Hill rang the money which he had paid for the whiskey in the cash register. Over appellant’s objection that appellant was not present, Hammond was permitted to testify that Hill stated that it was necessary for him to put the money in the cash register because it belonged to appellant, the lady for whom he worked, and who owned the station. When Hill was called as a witness by the State, he admitted the sale, but denied that appellant knew anything about his whiskey sales, also denied that he had told Hammond anything about appellant, and stated that he did not remember making such a statement in a confession which was exhibited to him. Following this, Hill’s confession which implicated appellant was introduced in evidence over appellant’s objection.

Appellant did not testify or offer any evidence in her own behalf.

Evidence which impeaches the State’s own witness may not be used as primary evidence against an accused. Lawhon v. State, Tex.Cr.App., 284 S.W.2d 730, and Wells v. State, 154 Tex.Cr.R. 336, 227 S.W.2d 210.

Finding the evidence insufficient to support the conviction, the judgment is reversed, and the cause is remanded.


text:
    William MOORE, Appellant, v. The STATE of Texas, Appellee.
    No. 36439.
    Court of Criminal Appeals of Texas.
    Jan. 29, 1964.
    A. W. Salyars, Lubbock, for appellant.
    Alton R. Griffin, Dist. Atty., William M. LauBach, Asst. Dist. Atty., Lubbock, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for assault with intent to murder; the punishment, four years.

The testimony of the State reveals that the injured party ran among a large number of customers in a cafe saying “Stop him, stop him,” as the appellant with a knife in his hand was pursuing the injured party; that appellant ran up behind, jumped and grabbed the injured party and cut his throat and stuck a hole through his ear with the knife.

A physician examined the injured party at the hospital immediately after he was cut. He testified that the injured party suffered a laceration of his left ear, and a large laceration on the right side of the neck extending from below the right ear “clear around to this part” severing the superficial jugular vein, which was about an inch deep at the deepest place, and came within about one half-inch of the main jugular vein, that it required about fifty stitches to close, and could have caused his death if it had not been treated.

Testifying in his own behalf, the appellant stated that while he was sitting with a group in the cafe the injured party approached, asked what all the noise was about, and when he told him that they were talking and laughing and' it was a public place and he did not think it was any of his business, the injured party said that the noise was not necessary. At this time the injured party reached toward his pocket and appellant thought he was reaching for a knife or something and was going to hurt him; that the injured party hit the appellant first, and then the appellant hit him with his knife to keep the injured party off of him.

On cross-examination of the appellant the following testimony was adduced:

“Q. Just show the jury how you were holding the knife, just take it and show them how you were holding it when you cut his throat. A. (demonstrating).
“Q. Now, the first time that you swiped at him was he trying to get away? A. He jumped back and—
“Q. He jumped back and you swiped at him?
“A. No, sir, I had hold'of him.
“Q. You had hold of him and were cutting him with the knife? You had a hold of him when you hit him the first time, is that your testimony? A. Both times.
“Q. Both times? A. Yes, sir.
“Q. You had hold of him with one hand and were cutting him with the other, isn’t that right? A. Yes, sir.
“Q. And the first time you hit him on the right ear — on the left ear, isn’t that right? A. Yes, sir.
“Q. And the next time you caught him on the right side of the throat? A. Yes, sir, that’s when he whirled.
“Q. When he whirled? A. Yes, sir.
“Q. Had his back to you, didn’t he? A. I don’t know.
“Q. Well sir, now all I’m trying to find out is just what happened out there. Can you tell me if he had his back to you when you cut his throat ?
“A. I don’t know, sir, because we was tusseling; he was trying to get loose and I was trying to hold him.”

The sole contention relied on for reversal is that the prosecuting attorney committed error during his argument to the jury. Appellant insists that the repeated use of the phrase his “throat was cut” by the appellant when no part of the neck inside of the superficial veins was damaged; and the use of the word “would” instead of “could”, in discussing the testimony that the wound could have caused death if it had not been treated, was error because it was unsworn testimony, and such arguments were inflammatory and prejudicial.

While testifying the appellant admitted that he cut the throat of the injured party, the physician testified it took about fifty stitches to close the laceration, and there was other testimony that appellant cut the throat of the injured party. At the time of the objection to the use of the word “would” the judge told the jury to recall the testimony of the physician, and the state’s attorney while arguing asked them to correct any of his misquotes of the testimony. No error is presented.

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

Opinion approved by the 'Court.


author: WOODLEY, Presiding Judge.

text:
    Ex parte Eubern O. WEBB.
    No. 36695.
    Court of Criminal Appeals of Texas.
    Jan. 29, 1964.
    Shannon & Shannon, Fort Worth, for relator.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The petitioner is confined in the penitentiary under Sentence in Cause No. D-2778J pronounced in Criminal District Court No. 3 of Dallas County on February 28, 1961, ordering his confinement for life for the offense of robbery with firearms.

The punishment for robbery with firearms is “death or by confinement in the penitentiary for any term not less than five years.” Art. 1408 P.C.

Petitioner alleges that he has served the minimum term of five years and that the remainder of the sentence is excessive and void.

Ex parte Erwin, 145 Tex.Cr.R. 504, 170 S.W.2d 226; Ex parte O’Dare, 146 Tex.Cr.R. 162, 172 S.W.2d 336; Ex parte Wheat, 146 Tex.Cr.R. 171, 172 S.W.2d 344; Ex parte Whitten, 151 Tex.Cr.R. 169, 205 S.W.2d 588; Ex parte Geisling, Tex.Cr.App., 243 S.W.2d 833; Ex parte Goss, 159 Tex. Cr.R. 235, 262 S.W.2d 412 and Ex parte Foight, 165 Tex.Cr.R. 153, 306 S.W.2d 132, cited by the petitioner, sustain his contention that he is entitled to be discharged from further confinement under the life sentence.

The writ is granted and the petitioner is ordered discharged from further confinement under said life sentence.

MORRISON, J., dissents.


text:
    Mabel Faye CASE, Appellant, v. The STATE of Texas, Appellee.
    No. 36499.
    Court of Criminal Appeals of Texas.
    Jan. 29, 1964.

      F. G. Swanson, Wm. R. Crocker, Tyler, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is murder; the punishment, seven years.

The homicide occurred at a rural home in Smith County. Appellant, deceased and a companion had been to the county line and had purchased some beer. Deceased had a record of mental illness, was drawing compensation for total disability, and had spent some time in veteran and civilian mental institutions. He was shot about four feet away from his automobile by appellant, who was standing in the doorway of her home, approximately 30 feet away. He was unarmed, but a .22 caliber rifle which was encased in a gun case was found lying under the seat on the floor board of his automobile. After the shooting appellant left the scene, and upon her return about an hour later she led the officers to a “shed” at the rear of her home where she reached under the floor and retrieved a .22 caliber single shot rifle which she told the officers she had used to shoot deceased.

Appellant testifying in her own behalf stated that deceased was intoxicated, had knocked her down with his fist, had abused her mother and her child, had gone to his automobile, had opened the door and then started back toward her house saying that "he was going to kill all of us.” She did did not testify that she saw any weapon in deceased’s hands, but stated that she secured her gun, “aimed it out the door * * intending to scare him with it * * * the screen door come to on it * * * ” and “The gun fired.” She testified that her defense was “self defense, and also accident”. “Either one or both.” The court in his charge submitted both defenses to the jury, neither of which they accepted, and we find the evidence sufficient to support the conviction.

Only one question is raised by brief and in argument. During the cross examination of appellant, the prosecutor asked her if she remembered being brought to his office and talking to him after her arrest, and being given the statutory warning. She replied in the affirmative. He then asked her, “without stating what you told me, didn’t you make a statement there after I had given you that warning?” He then developed the fact that appellant had asked to see her lawyer, that the Honorable F. G. Swanson was called, and after reading the statement, advised appellant that she “didn’t have to” sign the statement, and it was not signed. No effort was made at this juncture to question appellant as to the contents of the statement. On redirect examination, appellant’s counsel questioned her further as to why she had not signed the statement, other than upon the advice of her counsel, and she replied that the statement had not contained any of her testimony about deceased’s hitting her, threatening her life and pushing her baby down, or the fact that deceased had a gun in his automobile. On recross, the prosecutor asked her if she had said anything (at the time of making the statement) about any threats, and she replied that she did not remember. He then exhibited the statement to her, and she admitted that it contained the recitation that appellant had hit her.

We do not pass upon the question of the sufficiency of the objection interposed by counsel to the above procedure.

We readily agree with appellant that an unsigned statement may not be used for impeachment, but do not agree that the cases of Lera v. State, 138 Tex.Cr.R. 127, 134 S.W.2d 248, and Ely v. State, 139 Tex.Cr.R. 520, 141 S.W.2d 626, upon which he relies, call for a reversal of this conviction, because in each of them, questions were propounded in the first instance by the prosecutor which indicated that the statements conflicted with the testimony which the witness had given on the trial.

It should be noted that in the case at bar, the prosecutor warned the witness not to divulge the contents of the statement. Her own counsel then opened the question as to what portions of her testimony had been omitted from the statement, which authorized the State to pursue the matter further. 1 Branch Ann.P.C. 2nd Ed., sec. 120, p. 137; Florence v. State, 109 Tex.Cr.R. 335, 4 S.W.2d 555, and Cornelius v. State, 157 Tex.Cr.R. 129, 246 S.W.2d 886.

While we do not commend the prosecutor for walking on such thin ice, we have concluded that no reversible error is reflected by the above.

The judgment is affirmed.


author: SELLERS, Justice.

text:
    James Alex BLAKELEY, Trustee, Appellant, v. Ellen Davis HERRING et al., Appellees.
    No. 15.
    Court of Civil Appeals of Texas. Tyler.
    Jan. 9, 1964.
    Rehearing Denied Feb. 6, 1964.

      Jay S. Fichtner, Harvey L. Davis, Dallas, for appellant
    W. A. Pritchard, Bradford, Pritchard & Ashley, Andrew J. MacMaster, Dallas, for appellees.
   SELLERS, Justice.

James E. Herring', deceased, and Ellen Davis Herring were married on or about September 4, 1948, and continued to live together until on or about March 25, 1960. On March 25, 1960, James E. Herring filed a suit for divorce against Ellen Davis Herring in the Domestic Relations Court of Dallas County, Texas. During this marriage there were born to them two children, twin girls, about 13 years of age at the time of this suit for divorce. Ellen Davis Herring filed a cross-action for a divorce from James E. Herring. Thereafter James E. Herring filed in this cause an inventory of their property and listed, among other property, a Profit Sharing Retirement furnished him by his employer, Marathon Insurance Company, a wholly-owned subsidiary of Pacific Finance Corporation, of the value of $9,530.00. He also listed a Group Endowment Plan, issued to him as employee of his employer by the John Hancock Mutual Life Insurance Company of the value of $1,772.72, with notation that both of these Funds were not available to him until his employment terminated.

Thereafter a divorce decree was entered on August 2, 1960, in which James E. Herring was granted a divorce from Ellen Davis Herring, and her cross-action for divorce was denied. The care and custody of the two children was awarded to James E. Herring. This judgment awards certain attorney’s fees and decrees that all community property be placed in the hands of a receiver to be thereafter named. Subsequently, Ferris McKool was named Receiver of the community property, with instructions to sell the same, pay the debts and divide the remains between the parties. No further orders were entered in the divorce court in regard to the two Profit Sharing Funds above mentioned. At the time of the divorce, Ellen Davis Herring was named as beneficiary in case of the death of James E. Herring for both funds.

On June 17, 1961, James E. Herring died testate. His will was duly probated and in which will he named James Alex Blake-ley trustee for his two minor children, with full instructions with reference to the care and management of the property of his two children. Before his death and after the divorce judgment, James E. Herring changed his beneficiary from his former wife to James Alex Blakeley, Trustee, said change being authorized by his employer’s retirement plan.

After the death of James E. Herring, James Alex Blakeley, in his capacity as Trustee, sought to collect the retirement annuity and profit sharing funds which, at the time of James E. Herring’s death, were of the value of $11,623.86, and $2,285.48, respectively; but due to the claim of Ferris McKool, Receiver in the divorce court, and the former wife claiming the funds as community property of James E. Herring and Ellen Davis Herring at the time the divorce decree was entered and was therefore subject to the jurisdiction of the divorce court, and the payment of the community debts and attorney’s fees allowed in the divorce decree.

The present suit was brought by James Alex Blakeley, Trustee, against Ellen Davis Herring, Ferris McKool, Receiver, Pacific Finance Corporation and its subsidiary, Marathon Insurance Company, the employer of James E. Herring, United California Bank (Trustee of Profit Sharing Plan), and John Hancock Mutual Life Insurance Company (Insurer of James E. Herring’s retirement annuity policy), seeking a declaratory judgment (1) that no portion of the funds in dispute were the community property of decedent and Ellen Davis Herring; (2) that Ferris McKool, Receiver, has no claim thereto; (3) and that the Plaintiff recover judgment against the United California Bank and John Hancock Mutual Life Insurance Company for the funds in dispute. The defendant filed an answer cross-action and third-party action, requesting the court to award said funds to Ferris McKool, Receiver, who was appointed by the Domestic Relations Court in the prior divorce decree. The Marathon Insurance Company filed its interpleader; and with all parties before the court, the funds representing the dispute were paid into the Treasury of the Court and all parties to the judgment dismissed, except Ferris McKool, Receiver, and Ellen Davis Herring. The plaintiff filed a motion for summary judgment, claiming all the funds under the undisputed facts and Ferris Mc-Kool and Ellen Davis Herring likewise filed a motion for summary judgment, claiming the funds as a part of the community property of the parties at the time of the divorce; and in the alternative, if Ferris McKool, Receiver, was not entitled to the funds, then Ellen Davis Herring receive one-half of the funds as her community property.

The Court, after hearing on these motions, granted the motion of Ferris McKool, Receiver, and ordered the funds turned over to Ferris McKool to be expended by him in accordance with the judgment of the Domestic Relations Court of Dallas County, Texas, and ordered the Clerk to turn over to Ferris McKool the proceeds which had been paid into the Treasury of the Court by John Hancock Life Insurance Company and Marathon Insurance Company, and denied to the plaintiff his application for a summary judgment. On the hearing for the summary judgment there was introduced in evidence the Employees’ Profit Sharing Plan and Trust Agreement of Marathon Insurance Company, the original of which accompanied the record on this appeal. We shall not undertake to set out many of the provisions in this instrument. Insofar as the Profit Sharing Plan and Trust Agreement is concerned, we deem it sufficient to call attention to the fact that this plan was put into force around 1951. It provides that all of the funds shall be made available by the Pacific Finance Corporation and its subsidiaries and no contributions to the fund is required by the employees. It reserves to itself the right to determine or consider all questions relating to the eligibility of employees to participate. An employee for the purpose of this plan is every regular full-time salaried employee or officer of the company or a subsidiary, other than an employee or officer of Pacific Fidelity Life Insurance Company whose compensation, in whole or in part, is based on incentive or commission. Every present employee is eligible and each shall become a participant on December 31, 1951. We quote from the Plan:

“The application for participation shall signify the employee’s acceptance of the benefits and terms of this plan and trust. Upon the application form the employee may designate the beneficiary or beneficiaries whom he desires to receive the benefits provided for by this plan in the event of his death. A participant may from time to time change his designated beneficiary or beneficiaries without the consent of such beneficiary or beneficiaries by filing a new designation in writing with the Committee. The Committee may, in its discretion, require that the spouse of the employee or participant also join in any designation of beneficiary or beneficiaries. The Company, Subsidiaries, Committee and Trustee may rely upon the designation last filed in accordance with the terms of this agreement. If the beneficiary or beneficiaries last designated be not living at the death of the participant, or if the participant shall die without having designated a beneficiary, the benefits provided for by this plan shall be paid to the estate of the participant.”
“The Committee, in addition to all other books of account and records necessary or advisable in its judgment to properly reflect its activities, shall open and maintain a profit sharing account for each participant wherein such participant shall be credited annually with the amounts allocated to him as hereinafter provided. Such account shall be opened by the Committee as of the day each employee became a participant. As soon as the Committee has made the annual allocations among the participants, the Committee shall credit the allocated sums to the account of each participant, and the Committee shall notify the participants accordingly. Following the annual allocations, the amount credited in each participant’s account shall be deemed to reflect the value of each participant’s proportionate share of the trust as of the anniversary date on which the allocations are made. Such allocations, credit and notification shall not vest in any participant any right, title or interest in the trust, except at the time or times, and upon the terms and conditions herein provided, and shall not create any liability against the Company, Subsidiaries, Committee or Trust except to the extent expressly provided.” (Emphasis supplied.)

A participant’s interest in his profit-sharing account shall vest to the extent of 100%, irrespective of the duration of his participation, at any time upon his retirement at age 65, his death or a judicial declaration of his incompetence, or upon a determination by the Committee that he is physically or mentally incapacitated, or upon his voluntary retirement after attaining an age of 50 years

Death benefits are payable to the named beneficiary of a participant; and in the event the participant desires to change his beneficiary, he has the right to do so.

“Participation in this trust shall not give any employee the right to be retained in the Company’s or Subsidiary’s employ, or any right or interest in this trust other than as herein provided. The Company and the Subsidiaries reserve the right to dismiss any employee without any liability for any claim either against the trust fund except to the extent provided for herein, or against the Company or the Subsidiaries. All benefits payable hereunder shall be provided solely from the funds, and the Company and the Subsidiaries assume no responsibility for the acts of the Trustee.
“None of the benefits, payments, proceeds or claims of any participant shall be subject to any claim of any creditor of any participant and, in particular, the same shall not be subj ect to attachment or garnishment or other legal process by any legal creditor of any participant, nor shall any such participant have any right to alienate, anticipate, commute, pledge, encumber or assign any of the benefits or payments or proceeds which he may expect to receive, contingently or otherwise, under this agreement.”

It has been observed that the divorce court never made any decree with reference to the funds in dispute. At the time of divorce, James E. Herring had no interest in the funds that he could assign or otherwise dispose of under the terms of the Profit Sharing Plan.

It is settled in this state that a party to a divorce decree in which the parties’ rights to certain property is not partitioned in said decree there is nothing to prevent either party from going into district court to have his right to said property adjudicated. Kirberg v. Worrell et al., Tex.Com.App., 44 S.W.2d 940. It is without dispute that James E. Herring was an employee of Marathon Life Insurance Company from the time this retirement plan was put into effect until his death. There are a number of cases in Texas involving private pension plans and in most, if not all, of these the right of the company to govern and decide all issues involved therein is reserved to the company, and the courts will not interfere unless fraud or bad faith is shown. Spiner et al. v. Western Union Telegraph Co., Tex.Civ.App., 73 S.W.2d 566, Aston v. Magnolia Petroleum Company, Tex.Civ.App., 241 S.W.2d 306, Dowling v. Texas and N. O. R. Co., Tex.Civ.App., 80 S.W.2d 456, Webster v. Southwestern Bell Telephone Co., Tex.Civ.App., 153 S.W.2d 498:

Where the funds are wholly provided by the company for the retirement plan, the courts have held that such an undertaking is a charitable enterprise:

“Fund created solely by employer to provide for benefits to employees in case of sickness, injury, or death, and administration thereof, constituted ‘charitable enterprise.’ ” Spiner et al. v. Western Union Telegraph Co., Tex.Civ.App., 73 S.W.2d 566.

The parties forming the employees’ profit sharing took out with John Hancock Mutual Life Insurance Company a group annuity contract for the benefit of their employees. This contract covered James E. Herring and contained the same or similar provisions with reference to retirement and death benefits, the same making provision for the naming of his beneficiary and his right to change the beneficiary, and provides that the funds in this annuity contract could not be assigned or otherwise disposed of by the employee. The only difference in this annuity contract and the private pension plan above set out, in this annuity contract James E. Herring did contribute to its fund.

The fact that James E. Herring made certain contributions to this private retirement contract does not affect his right to name his beneficiary and to change the beneficiary as provided in the contract, and such funds on his death should be paid to his beneficiary as against any right claimed by a former wife that the annuity benefits were a part of his estate at the time of the divorce and for that reason she owns a one-half interest therein. This question was directly before the court in the case of Buehler v. Buehler, Tex.Civ.App., 323 S.W.2d 67:

“Suit by son to recover portion of death benefits paid to decedent’s second wife under employees’ profit sharing retirement plan. From adverse judgment of the District Court, Harris County, Bert H. Tunks, J., the wife appealed. The Court of Civil Appeals, Fanning, J., held that where employees who were members of employees’ profit sharing retirement plan had unrestricted right to designate beneficiary to receive payment of such member’s death benefits and designation was required to be in writing signed by member and bearing signature of at least one witness to member’s signature, designation of beneficiary instrument was' ' not testamentary in nature, and employee’s widow, who was designated as beneficiary, was entitled to entire death benefits and son, who was only child of employee, was not entitled to á portion of death benefits on ground that benefits were a part of estate.”

For a further discussion of rights as between designated beneficiary and heirs and legality of a deceased employee covered by private pension or retirement plan, see 72 A.L.R.2d 924.

From all we have said, it follows that full effect must be given in the plan whereby James E. Herring had the right to name his beneficiary to receive the death benefits; and since he did so in compliance with the contracts, we hold that said beneficiary is entitled to all the funds and that the receiver and former wife of James E. Herring is not entitled to any of the same under their claim of community property.

The judgment of the trial court is reversed and judgment here rendered in favor of plaintiff, James Alex Blakeley, Trustee.


author: DUNAGAN, Chief Justice.

text:
    Maggie TAYLOR, a widow, et al., Appellants, v. ALLIED VAN LINES, INC., et al., Appellees.
    No. 7.
    Court of Civil Appeals of Texas. Tyler.
    Jan. 16, 1964.
    Allen Melton, Dallas, for appellants.
    Lawrence Beason, Coke & Coke, Wm. E. Livingstone, III, Phinney, Hallman & Pulley, Dallas, for appellees.
   DUNAGAN, Chief Justice.

This is an appeal from a temporary injunction granted appellees in the Trial Court below. The injunction was granted on April 1, 1963.

Appellee First National Bank in Dallas, a creditor of Continental Transfer & Storage Co., Inc. for several years prior to and on April 28, 1960, filed a lawsuit in the 160th Judicial District Court of Dallas County, Texas on March 2, 1962 naming Continental Transfer & Storage Co., Inc. and R. L. Taylor, individually, as defendants. Defendants in that lawsuit had executed an installment note which was in default. As a result of this action, a default judgment was entered on January 8, 1963 in favor of First National Bank in Dallas and against Continental Transfer & Storage Co., Inc. and R. L. Taylor, individually. An abstract of this judgment was duly prepared and filed of record January 21, 1963. Upon request by First National Bank in Dallas, execution was delivered to the Sheriff of Dallas County, Texas on February 22, 1963. The Sheriff levied on certain Railroad Commission Franchise Right Certificates belonging to Continental Transfer & Storage Co., Inc. under Commission Certificates numbered 8322, 8796, 8546, 8361, 8358, 8391, 15165 and 9085. Notices were duly posted and public sale held by the Sheriff at the Courthouse steps in Dallas County, Texas at 2:00 p. m., March 12, 1963. At this sale, appellee Allied Van Lines, Inc. was the high bidder in competitive bidding for all of Continental’s and R. L. Taylor’s interest in said certificates. The Sheriff executed his bill of sale to appellee Allied Van Lines, Inc.

Continental Transfer & Storage Co., Inc., through its president, R. L. Taylor, executed a note on April 12, 1960 in the principal sum of $31,162.88, payable on demand. The note was made payable to Mrs. Maggie Taylor (R. L. Taylor’s mother), Golda B. Taylor (R. L. Taylor’s wife), and R. L. Taylor. Simultaneous with this action, Continental Transfer & Storage Co., Inc. by and through R. L. Taylor as its president executed a chattel mortgage as security for said note on the Railroad Commission certificates stated above, as well as certain certificates issued from the Interstate Commerce Commission to Continental Transfer & Storage Co., Inc. This chattel mortgage was filed for record July 11, 1960. On January 7, 1963, which was one day prior to the default judgment by the bank, Maggie Taylor, R. L. Taylor, and Golda B. Taylor filed a suit on the note against Continental Transfer & Storage Co., Inc. and Trans World Van Lines, Inc. This suit, filed in the 101st Judicial District Court of Dallas County as Cause No. 74000-E, sought foreclosure of the purported chattel mortgage and extinguishment of an alleged second lien given to Trans World Van Lines, Inc. on the Interstate Commerce Commission certificates. Service was perfected on Continental Transfer & Storage Co., Inc. by serving its president, R. L. Taylor, at 3909 Elm Street and service was further perfected on defendant' Trans World Van Lines, Inc. by serving its president, Maggie Taylor, at 3909 Elm Street. Neither defendant in this particular suit answered and on February 4, 1963, attorneys for plaintiffs procured the signature of the Honorable F. B. Davenport of the 116th Judicial District Court sitting for the 101st Judicial District Court on a default judgment purporting to establish plaintiffs’ lien as superior to all others and allegedly extinguishing a second lien on certain Interstate Commerce Commission authority in favor of defendant Trans World Van Lines, Inc. without any sale provision contingent thereto.

On March 12, 1963, R. L. Taylor and Maggie Taylor requested order of sale under their default judgment and this was delivered to Sheriff Bill Decker at 2:57 p. m. on March 12, 1963. This was the same date on which the sale under First National Bank execution was had and the certificates were sold to appellee Allied Van Lines, Inc. shortly after 2:00 p. m. Pursuant to the order of sale requested by the Taylors, Sheriff Decker posted notices of sale again on the Railroad Commission certificates for sale Monday March 25, 1963. The appellees obtained a restraining order and then a temporary injunction restraining this particular sale that was to have been held on March 25, 1963 and it is from the order granting the temporary injunction that this appeal has been perfected. In connection with the temporary injunction, the instant lawsuit was filed by appellees against appellants on March 22, 1963 in the 101st Judicial District Court of Dallas County, Texas attacking the validity of the note, chattel mortgage and subsequent default judgment rendered thereon under the provisions of Article 3996, T.R.C.S., Vernon’s Ann.Civ.St., which states:

“Every gift, conveyance, assignment, or transfer of, or charge upon, any estate real or personal, every suit commenced, or decree, judgment or execution suffered or obtained and every bond or other writing given with intent to delay, hinder or defraud creditors, purchasers, or other persons of or from what they are, or may be, lawfully entitled to, shall, as to such creditors, purchasers or other persons, their representatives or assigns, be void. This article shall not affect the title of a purchaser, or valuable consideration, unless it appear that he had notice of the fraudulent intent of his immediate grantor, or of the fraud rendering void the title of such grantor.”

Appellees also seek the setting aside of the note and chattel mortgage because there was no consideration for execution of the note and mortgage which form the basis for the subsequent default judgment. In the alternative, appellees seek a setting aside of the judgment on the grounds of fraud on the Court itself. Pending a trial on the merits of this lawsuit, appellees sought their restraining order which was granted by Judge Dallas Blankenship on March 25, 1963. No bond was required in the fiat executed March 25, 1963 and, therefore, a new fiat and restraining order were issued March 26, 1963 requiring a bond of $7,000.00 which was filed. Under the last sentence of Article 3996, T.R.C.S., as quoted above, it was appellees’ position in seeking an injunction to stop the satisfaction of appellants’ judgment by selling these particular certificates, that a purchaser at the sale might sustain the theory of equities created under a bona fide purchase not subject to any fraud or invalidity appellees might prove in their lawsuit against appellants attacking the note, mortgage and the subsequent default judgment. Hearing on the application for temporary injunction was held on April 1, 1963 and the Honorable Judge Penn Jackson, sitting for the judge of the 101st Judicial District Court, after full hearing and consideration, granted the application.

Appellants perfected their appeal from the temporary injunction order and this order is before this court for review.

The pleadings and other evidence before the Trial Court reflects that R. L. Taylor and wife, Golda B. Taylor, are officers in the Continental Transfer & Storage Co., Inc., R. L. Taylor being president, and Maggie Taylor, mother of R. L. Taylor, is president of Trans World Van Lines, Inc.

The appellants have ignored the requirements in Rule 421 of Texas Rules of Civil Procedure, which provide “Every brief shall contain at the front thereof a subject index with page references where uie discussion of the points relied upon may be found. It shall also contain a list of the authorities alphabetically arranged, together with the references to the pages of the brief where they are cited. * * * ”

The appellants contended in the Trial Court and so contend in this court that the appellees failed to properly plead and prove that the note and mortgage executed by Continental Transfer & Storage Co., Inc. in favor of appellants on April 12, 1960 was procured by fraud; that the appellees failed to properly plead and prove that there was a failure of consideration or lack of consideration for the note executed by Continental Transfer & Storage Co., Inc. in favor of appellants on April 12, 1960; that appellees’ pleadings are inadequate to properly support the relief granted by the Trial Court below and that appellee, First National Bank, is guilty of laches and has failed to use diligence in pursuing recovery against Continental Transfer & Storage Company.

The Trial Court had jurisdiction of the subject matter pending a final hearing of the cause, and the Trial Court in the exercise of its power had the authority to issue a temporary injunction, as was done.

The granting or refusing of a temporary injunction is a matter that rests within the sound discretion of the Trial Court, and unless it appears from the record that the court has abused that discretion, the action of the court is not subject to review on appeal. If the petition does allege a cause of action and evidence tending to sustain such cause of action is introduced, then there is no abuse of discretion by the Trial Court in issuing the temporary injunction. Southwestern Greyhound Lines v. Railroad Commission of Texas, 128 Tex. 560, 99 S.W.2d 263, 109 A.L.R. 1235; Texas Foundries v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460; Railroad Commission, et al. v. Shell Oil Company, Inc., et al., 146 Tex. 286, 206 S.W.2d 235.

The case at bar meets this test. The pleadings and other evidence before the Trial Court was sufficient to support the granting of the temporary injunction.

The appellants in their brief have cited the Supreme Court case of Camp, et al. v. Shannon, 348 S.W.2d 517, written by Chief Justice Calvert. Judge Calvert said: “The purpose of a temporary injunction is to preserve the status quo of the subject matter of a suit pending the final trial of the case on its merits. James v. E. Weinstein & Sons, Tex.Com.App., 12 S.W.2d 959, 960. A trial judge therefore has broad discretion to grant or to deny a writ when the pleadings and the evidence show a probable right of recovery in the applicant and a probable injury to him if the writ is not granted. Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549. A necessary corollary of that rule is that a trial judge abuses his discretion if he grants a writ when the evidence fails to furnish any reasonable basis for concluding that the applicant has a probable right of recovery. To furnish a reasonable basis for the conclusion the evidence need not establish that the applicant will finally prevail in the litigation, Transport Co. of Texas v. Robertson Transports, supra, but it must, at the very least, tend to support a right of recovery. Southwestern Greyhound Lines, Inc. v. Railroad Commission,” supra.

Appellants contend that the evidence in the case before this court does not meet the requirements of Camp v. Shannon, supra. We think it does.

To preserve the subject matter of a litigation and the status quo thereof, which was the object of this suit, that is, to prevent the sale of the certificates involved in this litigation, the court did not abuse its discretion in granting the temporary injunction herein complained of.

The court in its order of March 26, 1963 granting appellees' application for temporary restraining order required appellees to execute a bond in the sum of $7,000.00. The Trial Court in its order of April 1, 1963 granting temporary injunction ordered the bond on file in support of plaintiffs’ temporary restraining order be continued in full force and effect in support of the temporary injunction. Appellee, Allied Van Lines, Inc., purchased the certificates in dispute in this lawsuit for the sum of $6,500.00. The judgment obtained by the appellants in their suit against Continental Transfer & Storage Co., Inc., and Trans World Van Lines, Inc., was for the total sum of $40,070.99.

By an additional point of error, it is claimed that the Trial Court erred in failing to require appellees to post a bond in excess of $40,070.99, which is the amount of the judgment owned by appellants, plus the reasonable amount to cover interest and cost, required by the provisions of Rule 684, T.R.C.P. The Rule reads in part as follows :

“If the injunction be applied for to restrain * * * the collection of a debt, the bond shall be fixed in the amount of such * * * debt, plus a reasonable amount to cover interest and costs.”

We overrule this contention. Appellees do not seek under their injunction and the order does not provide for a restraint against collection of the debt by any number of means or by general execution under appellants’ judgment. We do not think Rule 684 has application. Lee v. Howard Broadcasting Corp., Tex.Civ.App., 305 S.W.2d 629; Manes v. Bletsch, Tex.Civ.App., 239 S.W. 307; Hicks v. Murphy, Tex.Civ.App., 151 S.W. 845; Pacheco v. Allala, Tex.Civ.App., 261 S.W. 148.

Each of appellants’ points of error are overruled. The judgment of the Trial Court is affirmed.