author: WOODLEY, Presiding Judge. MORRISON, Judge. BELCHER, Judge. MORRISON and ONION, Judges.

text:
    Ex parte Stephen D. ZERSCHAUSKY.
    No. 40133.
    Court of Criminal Appeals of Texas.
    June 7, 1967.
    Rehearing Denied July 19, 1967.

      Fred A. Semaan, Oscar C. Gonzales, San Antonio, for appellant.
    James A. Barlow, Dist. Atty., San Antonio, Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

This is a habeas corpus proceeding attacking the validity of petitioner’s conviction for murder with punishment assessed at 30 years.

The petition was presented to Hon. Archie S. Brown, Judge of the 144th District Court of Bexar County where the conviction was had.

Judge Brown ordered a hearing on the question of whether the writ should issue, and after the hearing granted the writ returnable before this court, as provided in Art. 11.07 Vernon’s Ann.C.C.P.

Trial of the case which resulted in the conviction attacked began April 1, 1963, which wap prior to the repeal of Art. 711 C.C.P. (by the 1965 Code of Criminal Procedure) under which persons charged as accessories could not be introduced as witnesses for the principal. (Art. 82 P.C. to the same effect is repealed in the 1967 amendment to the 1965 Code but such amendment is not yet in effect.)

The grounds upon which the conviction under which petitioner is confined in the Texas Department of Corrections is attacked is that petitioner, during his trial, was denied the benefit of the testimony of three eye witnesses to the killing who were under indictment as accessories and thereby disqualifed as witnesses in his behalf under Articles 81 and 82 of the Penal Code and Art. 711 of the Code of Criminal Procedure in effect at the time of his trial, which Articles he contends are unconstitutional and in direct conflict with the Sixth Amendment of the Constitution of the United States.

A careful review of the record relating to the trial at which petitioner was convicted, shown by evidence offered by petitioner at the habeas corpus hearing to contain all of the testimony with nothing omitted or added, reflects that no ruling by the trial judge relating to the witnesses under indictment as accessories to petitioner was sought or made, and petitioner relies for his claimed denial of due process on (1) the unconstitutionality of the statutes above mentioned; (2) the refusal of the district attorney of his request that he waive any objection that the law gave him to the accessory witnesses testifying and permit them to be put on the stand by the defense and to testify, and (3) the ground that he was deprived of the testimony of such witnesses by reason of the fact that the state, by and through its Criminal District Attorney, was responsible for having such witnesses indicted as accessories.

In Washington v. State, Tex.Cr.App., 400 S.W.2d 756, the court sustained the objection of the state to the calling of Fuller, a co-principal who had been convicted of the murder for which Washington was on trial. The question decided by this court was whether the court’s ruling, predicated upon Art. 711 C.C.P. then in effect, violated Washington’s rights under the Sixth and Fourteenth Amendments.

In Brown v. State, Tex.Cr.App., 401 S.W.2d 251, as well as in Washington, supra, we held that Art. 711 C.C.P. (1925) and Art. 82 P.C. which provides that parties charged as principals cannot be introduced as witnesses for one another were constitutional. As in Washington, supra, the court’s refusal to allow the witness who had been convicted as a principal in the murder to testify in the defendant’s behalf was relied upon as showing denial of due process.

This court has recognized the inherent power of the trial court to protect the rights of the defendant guaranteed by Art. 1, Sec. 10, of the Constitution of Texas, Vernon’s Ann.St. and has held that the Legislature is without authority to deprive an accused of his right to have compulsory process for obtaining witnesses in his favor. Bludworth v. State, 168 Tex.Cr.R. 549, 330 S.W.2d 436, and cases cited.

We held in Stein v. State, 172 Tex. Cr.R. 248, 355 S.W.2d 723, that one under indictment as an accessory was competent to testify, counsel for the state having withdrawn his objection, and pointed out that Articles 711 C.C.P. and 82 P.C. must yield to Art. 81 P.C. which provides that unless he has escaped the principal shall be tried first.

In Sewall v. State, 67 Tex.Cr.R. 105, 148 S.W. 569, decided in 1912, the refusal of the trial court to grant a severance, the other parties being charged as accessories, was held not to be error but it was suggested:

“if the court should ascertain the fact to be that the witnesses were indicted to prevent them from testifying, the court should see that no injury is done the appellant for this reason, and use such authority as is confided to the trial court to see that no undue advantage of this sort may be taken.”

There is no showing in the record that the trial judge was afforded the opportunity at the trial to allow the witnesses under indictment as accessories to be introduced as witnesses for petitioner, notwithstanding the provisions of Arts. 711 C.C.P. and 82 P.C. relating to accessories as witnesses, and without regard to whether or not the district attorney objected or whether or not he “was responsible” for having such witnesses indicted as accessories.

The trial judge had inherent power to protect the rights of petitioner under the Due Process Clause of the Constitution of the United States and under Art. 1, Section 10, of the Constitution of Texas.

In addition to the authorities above mentioned, the rule applied by the Circuit Court of Appeals for the 5th District in Bonner v. Beto, 373 F.2d 301, is applicable in the courts of this state as well as in the Federal Courts.

“The Fourteenth Amendment leaves Texas free to adopt whatever statute or decision she elects concerning the competency of various classifications of witnesses to testify, whether or not her rule conforms to that applied in the Federal Courts or in other state courts. But as the Supreme Court said in Lisen-ba v. People of State of California, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166 (1941), ‘[T]he adoption of the rule of her choice cannot foreclose inquiry as to whether in a given case, the application of that rule works a deprivation of the prisoner’s life or liberty without due process of law.’ ”

We hold that petitioner is not entitled to relief on the ground that Article 711, V.A.C.C.P. and Articles 81 and 82 of .the Penal Code are unconstitutional; that Article 711, V.A.C.C.P. and Art. 82, P.C. must yield to Art 81, P.C. which provides that unless the principal has escaped, he shall be tried before the accessories, and that all of such statutes must yield to the constitutional right of the defendant in a given case to compulsory process for witnesses and to have their testimony.

Petitioner is not complaining of any ruling of the trial court at his trial regarding his right to call witnesses. His complaint is that the District Attorney who was called by the defense as a witness declined to waive objection to witnesses under indictment as accessories to petitioner being competent to testify.

In the absence of any ruling of the trial court denying petitioner the right to call the witnesses under indictment as accessories and have them testify for him, we overrule the contention that petitioner was denied due process.

The relief prayed for is denied.

DISSENTING OPINION

MORRISON, Judge.

This case was assigned to me originally, and I prepared the following opinion in which my brother ONION, J., joined. We now adopt such opinion in its entirety as our dissent in order to fully reflect our views.

“On December 28, 1966, the Honorable Archie S. Brown, Judge of the 144th District Court of Bexar County, held a hearing and certified the record thereof to this Court for appropriate action under Article 11.07, V.A.C.C.P.

On April 1, 1963, relator was tried in said 144th District Court under an indictment charging him with murder which resulted in a verdict of guilty with punishment assessed at 30 years. No appeal from this conviction was perfected. The thrust of relator’s contention is that he was deprived of his liberty without due process of law under the Fourteenth Amendment to the United States constitution in that he was deprived of the testimony of the three eye witnesses to the homicide because they had been separately indicted as his accessories in such homicide.

In order to establish the factual support of such contention, appellant’s counsel testified at the habeas corpus hearing before the same judge who had conducted the original trial:

‘MR. SEMAAN: All right, sir. Shortly before the trial of the case, which began on April 3, I think, 1963, I had a short conversation with Judge Brown, who was the Judge that tried the case. I discussed the case of Stein v. State— and, offhand, I don’t remember the citation but I can furnish it into the record —which holds that an accessory can testify if the prosecution will waive their objection. And I told Judge Brown that I wasn’t sure whether or not he was familiar with the ruling in the case, but that I wanted him to be aware of it and that I intended to ask the District Attorney to waive his objection and let the accessories testify. If he agreed, I apprised Judge Brown of the fact that I intended to call these witnesses. If the District Attorney didn’t waive his objection, then I couldn’t call them. Judge Brown agreed with me, that that was more or less the law and to wait and see what the District Attorney’s attitude was during the trial.
Now during the trial, I did ask the District Attorney if he would waive his objection and let the accessories testify; and he refused.
Q. (By Mr. Leon:) Did you have the witnesses ready, willing and available to testify at that time?
A. They were out in the hall ready to take the stand the minute they were called.’

The trial record clearly shows that relator’s counsel asked the District Attorney to waive his objection to the witnesses’ testifying as permitted by Stein v. State, [172 Tex.Cr.R. 248] 355 S.W.2d 723, and that he refused to do so, but later dismissed the indictments against the witnesses. It thus appears that this constitutional question is clearly before this Court for decision, and we may not pass the same from our lips.

At the hearing on the habeas corpus application it was shown that had the accessories been permitted to testify, they would have supported relator’s claim of self-defense. The only other witness to such facts was Helen Blake, who was not indicted as an accessory and was the State’s main witness.

There is a long line of decisions from this Court applying Article 711, V.A.C.C.P. and Article 82, V.A.P.C. The constitutionality of such statutes was not, however, attacked until the recent cases of Washington v. State, [Tex.Cr.App.] 400 S.W.2d 756, and Brown v. State, [Tex.Cr.App.] 401 S.W.2d 251. The constitutionality of these statutes was upheld where the witness sought to be called by the defendant over the State’s objection was a co-principal who had been indicted and convicted of the same offense for which the defendant was on trial.

In Washington v. State, supra, this Court said:

‘The legislature has the power, except as limited by the Constitution, to prescribe the competency of witnesses in all cases.’

In Washington it was observed that Article 711, supra, and Article 82, supra, have welded to them the severance statutes (Articles 650-654, V.A.C.C.P.1925).

Since the decisions in Washington and Brown, supra, the United States Court of Appeals for the Fifth Circuit in Bonner v. Beto, 373 F.2d 301, held that Bonner was deprived of his liberty without due process under the Fourteenth Amendment because he was deprived by virtue of Texas Statutes of the testimony of his wife, who had been indicted and convicted of the same offense.

After reviewing the history and reason for such statutes as Article 711, V.A.C.C.P. (1925) and Article 82, V.A.P.C. the Court in Bonner said:

‘The Fourteenth Amendment leaves Texas free to adopt whatever statute or decision she elects concerning the competency of various classifications of witnesses to testify, whether or not her rule conforms to that applied in the Federal Courts or in other state courts. But as the Supreme Court said in Lisenba v. [People of State of] California, 314 U.S. 219 [62 S.Ct. 280, 86 L.Ed. 166] (1941), “The adoption of the rule of her choice cannot foreclose inquiry as to whether in a given case, the application of that rule works a deprivation of the prisoner’s life or liberty without due process of law.” ’

The issue before us is not whether a defendant is deprived, under the circumstances of the case, of due process when he is not allowed to call as a witness in his behalf a co-principal who has been indicted and already convicted.

The question here presented is whether this relator was denied due process under the Fourteenth Amendment in that he was deprived of the testimony of eye witnesses who were under indictment as accessories to the homicide where their testimony favorable to relator’s plea of self-defense could not be obtained by motion for severance requesting that they be first tried. Article 711, supra, in effect at the time relator was tried and convicted provided:

‘Persons charged as principals, accomplices or accessories whether in the same or different indictments, cannot be introduced as witnesses for one another, but they may claim a severance; and, if any one or more be acquitted, or the prosecution against them be dismissed, they may testify in behalf of the others.’

Articles 80, 81, and 82, V.A.P.C. provide :

‘An accomplice may be tried and punished before the conviction of the principal, and the acquittal of the principal shall not bar the prosecution against the accomplice, but on the trial of an accomplice the evidence must be such as would have convicted the principal.’ (Art. 80, V.A.P.C.)
‘An accessory may in like manner be tried and punished before the principal when the latter has escaped; but if the principal is arrested he shall be first tried, and if acquitted, the accessory shall be discharged.’ (Art. 81, V.A.P.C.)
‘Persons charged as principals, accomplices or accessories, whether in the same or by different indictments, cannot be introduced as witnesses for one another, but they may claim a severance, and if one or more be acquitted they may testify in hehalf of the others.’ (Art. 82, V.A.P.C.)

It is apparent from reading statutes quoted that they deny a defendant the right to the testimony of a witness who is under indictment as accessory to the crime for which he is on trial, and that the severance provision gives no relief because the principal must be tried first.

We hold therefore that the application of these statutes to relator worked a deprivation of his liberty without due process of law under the Fourteenth Amendment.

Relator is ordered released from confinement in the Texas Department of Corrections and ordered delivered to the Sheriff of Bexar County, there to stand trial on the indictment pending against him in Cause No. 61704 in said Court. Such retrial is to be conducted in accordance with the terms of this opinion.”

We respectfully dissent to the denial of the relief requested herein.

ONION, J., dissented.

ON REHEARING

BELCHER, Judge.

The majority opinion delivered June 7, 1967, denying the relief prayed for was not bottomed upon the constitutionality of the Texas Statutes (Art. 711, Vernon’s Ann. C.C.P. since repealed and Art. 82, Vernon’s Ann.P.C., repealed by Act of the Legislature not yet in effect), but upon the holding that such statutes must yield to the constitutional right of the defendant in a given case to compulsory process for witnesses, including the right to put them on the witness stand; and to the further holding of the majority that the trial court was not called upon to make any ruling and made none which denied petitioner’s constitutional rights to compulsory process for witnesses or to put them on the witness stand.

The decision of the Supreme Court in Washington v. State, 87 S.Ct. 1920, delivered shortly after the original opinion herein, is not inconsistent with the holding of the majority in that the trial judge did nothing to deny petitioner the right “to put his witnesses on the stand,” or the “right to compel their attendance in court.”

The essence of petitioner’s position is that he was denied a fair trial because the district attorney, being called as a witness by him, declined to agree that he would not object if a witness under indictment as his accessory was put on the stand. We do not agree.

Petitioner’s motion for rehearing is overruled.

DISSENTING OPINION

ON APPELLANT’S MOTION FOR REHEARING

MORRISON and ONION, Judges.

The position Judge Onion and this writer took originally in our dissent has been fortified by the opinion of the United States Supreme Court in Washington v. State of Texas, 87 S.Ct. 1920 (June 12, 1967), wherein the Court held the petitioner to be denied his right to compulsory process by the application of Texas Statutes (Articles 82, P.C. and 711, C.C.P.), because the “State arbitrarily denied him the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense.”

The majority opinion says the decision of the Supreme Court in Washington v. State of Texas, supra, delivered shortly after the original opinion herein, is not inconsistent with the holding of the majority in that the trial judge did nothing to deny petitioner the right “to put his witnesses on the stand,” or the “right to compel their attendance in court.”

The fallacy of this position is apparent when we read further from Washington v. State of Texas, supra, as follows:

“The testimony of Charles Fuller was denied to the defense not because the State refused to compel his attendance, but because a state statute made his testimony inadmissible whether he was present in the courtroom or not. We are thus called upon to decide whether the Sixth Amendment guarantees a defendant the right under any circumstances to put his witnesses on the stand, as well as the right to compel their attendance in court.”

The identical situation exists in the case at bar and the only possible question relating to the applicability of the Washington holding is whether it is to be retrospectively applied. We need look no further than to the thinking of the Supreme Court of the United States as set out in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, in which the retrospective applications of Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed. 2d 799, and Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, were discussed. There the Court said that “in each of the three areas in which we have applied our rule retrospectively the principle that we applied went to the fairness of the trial — the very integrity of the fact-finding process.” That the principle in the case at bar and in Washington is the very essence of the fact finding process and is of the nature deserving retrospective application can be readily seen from a reading of the majority opinion in Washington, wherein the Court said:

“The right of an accused to have compulsory process for obtaining witnesses in his favor stands on no lesser footing than the other Sixth Amendment rights that we have previously held applicable to the States.”

and that:

“The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present . the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies.”

We do not agree with the assertion made by the District Attorney of Bexar County that to give the Washington rule retrospective application would result in countless felons being turned loose on the streets or granted new trials, because we do not say that in all cases where the statutes have been applied, the defendants are entitled to relief. There must be a showing that the testimony of the witnesses who would have testified in their behalf is of such nature that it could have affected the outcome of the trial.

We respectfully dissent.

      The United States Supreme Court granted certiorari in Washington, supra, and transferred the case to the appellate docket (No. 168) placing it on the summary calendar October 10, 1966 [885 U.S. 812, 87 S.Ct. 123, 17 L.Ed.2d 54], to decide the question: ‘Is petitioner’s conviction and sentence void because he was denied his rights under the Sixth and Fourteenth Amendments to the Constitution of the United States to have compulsory process in obtaining an available witness in his favor, namely a co-defendant charged and previously convicted under a separate indictment for the same transaction, and which co-defendant according to his Affidavit could have exonerated petitioner if such testimony were believed by the jury?’ 35LW 3124.

      . Article 711, Y.A.C.C.P. (1925) was deleted in the revision of the Code of Criminal Procedure, 1965. See Article 36.09 V.A.C.C.P. 1965.


source: Caselaw Access Project

author: ONION, Judge.

license: Public Domain

text:
    Clifford Elmo STEPHENS, Appellant, v. The STATE of Texas, Appellee.
    No. 40380.
    Court of Criminal Appeals of Texas.
    May 24, 1967.
    Amended on Denial of Rehearing July 26, 1967.
    Reynold M. Gardner, Amarillo, for appellant.
    Naomi Harney, County Atty., Bill R. Sherbert, Asst. Dist. Atty., Amarillo, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

This is an appeal from a conviction for Receiving and Concealing Stolen Property under the value of $50.00 and over the value of $5.00. Without objection, the case was tried under the alternate procedure provided by Article 37.07, Section 2, Vernon’s Ann.C.C.P. After a finding of guilty by a jury, the punishment was assessed by the Court at confinement in jail for five (5) days and a $500.00 fine.

Trial commenced on November 30, 1966.

A recitation of the facts is deemed unnecessary for the proper disposition of the case.

One of the grounds of error urged by appellant is that the trial court erred in permitting the introduction of appellant’s application for probation at the hearing on guilt or innocence.

Testifying at the hearing on the issue of guilt or innocence, appellant was asked on cross-examination if he had ever been convicted of any offense. Upon objection to the question, the jury was removed. It was the State’s contention that in view of appellant’s testimony on direct examination that he had never been called upon to testify as a defendant in any case, and because on cross-examination he denied having ever been a defendant, or having been charged with anything he was subject to impeachment regardless of the nature of the conviction, and that the question was proper. In absence of the jury, it was established that appellant had previously been convicted of driving while intoxicated a number of years before without the aid of counsel when he pled guilty without going to court. At such time, the court announced it would permit impeachment of the appellant on his sworn application for misdemeanor probation filed pursuant to Article 42.13, V.A.C.C.P. Thereupon, the appellant pointed out to the trial court that he was withdrawing his probation application, that he had not offered any proof as to such application, and that it was not the proper time for him to do so.

Nevertheless, in the presence of the jury, the State was permitted to introduce into evidence the application for probation and to elicit from appellant that in 1951, some fifteen years prior to the instant trial, that appellant had been convicted of driving while intoxicated and driving while license suspended. Such action was over the continued objections of the appellant that the convictions involved were not for felonies or misdemeanors involving moral turpitude, were too remote to be used for impeachment, and permitted impeachment upon matters not before the jury at the time. Subsequently, the court instructed the jury to disregard for all purposes the testimony as to the conviction for driving while license suspended.

Following appellant’s motion for mistrial, which was denied, the court stated to the jury:

“You shall not consider such previous convictions for any other purpose, whatsoever, not even on an impeachment matter. It is too remote. It shouldn’t have been admissible in the first instance and, in the next instance, it is not an offense involving moral turpitude, for which he could have been impeached and it is admitted only for the limited purpose stated, and that is affecting the credibility of the witness insofar as the application for misdemeanor probation is concerned.”

Under the provisions of Article 38.29, V.A.C.C.P., the fact that a witness has been charged with an offense is inadmissible for the purpose of impeaching him unless the charge has resulted in a final conviction. Hunter v. State, 168 Tex.Cr.R. 160, 324 S.W.2d 17; Tomlinson v. State, 163 Tex.Cr.R. 44, 289 S.W.2d 267. Furthermore the final conviction must be for a felony offense or one involving moral turpitude; Mauldin v. State, 165 Tex.Cr.R. 405, 308 S.W.2d 36, and even then, it must not be too remote. If, however, the witness makes blanket statements concerning his exemplary conduct, such as has never been charged or convicted of any offense, then the State may refute such testimony, despite the nature of the conviction used or its remoteness. Orozco v. State, 164 Tex.Cr.R. 630, 301 S.W.2d 634 and cases cited therein.

The filing of an application for misdemeanor probation does not change the rules stated above nor does it authorize the State to prove specific acts of misconduct against the accused particularly on the hearing on the issue of guilt or innocence. If the State’s contention be correct that the earlier testimony of appellant had “opened the door” to his impeachment regardless of the nature of any prior conviction or its remoteness, then the State was entitled to refute such earlier testimony, but it did not authorize the trial court to admit into evidence the probationary application under the theory of impeachment at the hearing on guilt or innocence. The sworn application for probation that appellant had never been convicted of a felony or a misdemean- or punishable by imprisonment in jail or by a fine exceeding $200.00 was consistent, not inconsistent, with his earlier testimony, and related to an issue not then before the jury. Recently, this Court in Smith v. State, Tex.Cr.App., 414 S.W.2d 659, held that a defendant may not, over objection, offer proof in connection with his application for probation that he had never before been convicted at the trial on the issue of guilt or innocence alone where the proceedings are being conducted pursuant to Article 37.07, V.A.C.C.P. Such evidence, of course, would be clearly admissible subsequently at the separate hearing on punishment, if a guilty verdict has been returned.

Therefore, the issue of probation was not and should not have been before the jury at the trial on guilt or innocence alone. Furthermore, the appellant had offered no proof as to his application and had withdrawn his application for probation prior to his impeachment before the jury. After such withdrawal, no further testimony on the subject should have been allowed. See Holland v. State, 79 Tex.Cr.R. 529, 187 S.W. 944; Harmon v. State, 119 Tex.Cr.R. 426, 45 S.W.2d 583.

We conclude therefore that under the given circumstances of this case, the learned trial judge fell into error when he permitted the State to impeach the appellant on his application for probation, an issue not before the jury at the trial on guilt or innocence alone. See Driehs v. State, 164 Tex.Cr.R. 455, 301 S.W.2d 123.

For the reasons pointed out, the judgment is reversed and remanded.

      I. Driving while intoxicated and driving while license suspended are not offenses involving moral turpitude. Burton v. State, 149 Tex.Cr.App. 327, 194 S.W.2d 398. See 62 Tex.Jur.2d, Sec. 271, p. 246; Art. 6701d, Sec. 161 V.A.C.S.


author: BELCHER, Judge. DICE, Judge.

text:
    Gene Thomas LAUBE, Appellant, v. The STATE of Texas, Appellee.
    No. 40284.
    Court of Criminal Appeals of Texas.
    April 12, 1967.
    Rehearing Denied June 28, 1967.

      Norman Kinne, Dallas, for appellant.
    Henry Wade, Dist. Atty., John Emmett, Joe K. Hendley and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

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

Trial was had after Jannuary 1, 1966.

The sole ground urged as error is the admission in evidence of the articles found as a result of the search of the appellant over his objection that they were the fruits of an illegal search.

The testimony of the state reveals that while Officers Stewart and Johnson were on patrol about 1 a. m., Officer Stewart observed the appellant standing by the right hand front fender on the far side of an automobile on a well-lighted used car lot, which was closed for business, and he was looking toward the rear of the car; that when the appellant saw the patrol car, which was marked “Dallas Police Department” on the side and had red lights and siren, he began running before the patrol car had stopped; that Officer Stewart jumped from the patrol car and called to the appellant to stop, but he continued running; that both officers ran onto the lot; that the front door glass was broken out of the sales office building; that the appellant was discovered lying underneath a “wrecker” behind the sales office; that at Officer Johnson’s direction he came from underneath the “wrecker”; that the appellant was wearing a black shirt, black trousers, and black gloves.

At this time, a search of the appellant by the officers revealed three beer can openers and a Japanese letter opener. These articles were introduced in evidence by the state; and the testimony shows that they had been taken from the office building.

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

A Dallas City ordinance enacted under the authority of Art. 214 V.A.C.C.P. (now Art. 14.03 Vernon’s Ann.C.C.P.), was introduced in evidence. It authorized an officer to arrest without warrant any person found in suspicious places or circumstances reasonably tending to show that such person has been guilty of some felony.

It is concluded that the facts and circumstances under which the appellant was observed and found by the officers was sufficient to authorize his arrest under the ordinance without a warrant; and that the search was made incident to a lawful arrest. Roach v. State, Tex.Cr.App., 398 S.W.2d 560.

The judgment is affirmed.

OPINION

ON APPELLANT’S MOTION FOR REHEARING

DICE, Judge.

Appellant re-urges the contention that the articles found on his person were obtained as the result of an illegal search.

We have again examined the record and remain convinced that, under the facts, the appellant’s arrest without a warrant was authorized under the Dallas city ordinance enacted under the authority of Art. 214, V.A.C.C.P. (now Art. 14.03, V.A.C.C.P.), introduced in evidence by the state. The search of appellant, being incident to a lawful arrest, was legal.

In his motion, appellant insists that he was denied "Equal Protection Of The Law Under Voir Dire,” in violation of the 14th Amendment to the Constitution of the United States, and the right to demand “The Nature And Cause Of The Accusation Against Him,” as provided by Art. 1, Sec. 10, of our State Constitution, Vernon’s Ann. St., when the trial court overruled his request to examine the officer on voir dire, “To Show The Legality Or Probable Cause Of His Arrest.”

We overrule the contention and observe that while appellant was not permitted to ask certain questions on the voir dire examination he later, on cross-examination of the witness, fully questioned him relative to the facts and' circumstances surrounding the arrest.

In his motion, appellant also insists that the court erred in not dismissing the charge against him because "He Was Denied A Fair And Speedy Trial,” in violation of the 6th Amendment to the Constitution of the United States and Art. 1, Section 10, of the Constitution of this State.

The record shows that the indictment was returned against appellant on July 19, 1965, and that his trial was on March 28, 1966. No request is shown to have been made by appellant for an earlier trial. The contention is overruled. Dagley v. State, Tex.Cr.App., 394 S.W.2d 179.

The motion for rehearing is overruled.


author: BELCHER, Judge.

text:
    Ex parte Richard C. ROCHESTER.
    No. 40462.
    Court of Criminal Appeals of Texas.
    July 12, 1967.
    No attorney of record on appeal, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Phyllis Bell, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

This is an appeal from an order entered in a habeas corpus proceeding remanding the appellant to custody for extradition to the State of South Dakota.

At the hearing on the writ, the state introduced in evidence the executive warrant issued by the Governor of Texas. The warrant recites that the appellant “stands charged by complaint, warrant, supporting papers before the proper authorities, with the crime of obtaining property by means of false pretense” committed in the State of South Dakota and that he has taken refuge in the State of Texas; and that the South Dakota demand for his return is accompanied by copies of said complaint, warrant and supporting papers. To the state’s introduction of the executive warrant, the appellant stated, “No objection.”

The executive warrant of the Governor of Texas, which appears regular on its face, made out a prima facie case authorizing the remand of the appellant to custody for extradition. Ex parte Wilson, Tex.Cr.App., 391 S.W.2d 421.

The failure to furnish copies of the extradition papers was not error, as the appellant contends, for the reason that neither he nor his attorneys ever made a request for them. Ex parte Moore, 158 Tex.Cr.R. 407, 256 S.W.2d 103.

It is contended that the penal statute introduced in evidence by the appellant instead of the penal statute introduced and relied upon by the state is applicable to the crime charged in South Dakota. According to this record, either statute would authorize the Texas Governor to issue the warrant. The contention is overruled.

It is urged that there is a fatal conflict between the demand and an executive order contained among the requisition papers. The demand recites that appellant was in South Dakota when the crime was committed while an order among the papers recites he was not there. While testifying on the hearing, the appellant admitted he was in South Dakota at the time the crime alleged was committed. Any claimed conflicts in the instruments with reference to his presence in the demanding state were resolved against the appellant by his testimony. No error is presented.

The trial court was authorized to conclude as he did and remand the appellant for extradition.

The judgment is affirmed.


author: CLAYTON, Justice.

text:
    Emilio ALVAREZ et al., Appellants, v. Jack SMITH et al., Appellees.
    No. 5890.
    Court of Civil Appeals of Texas. El Paso.
    June 14, 1967.
    Rehearing Denied July 19, 1967.
    Joseph J. Rey, El Paso, for appellants.
    Edwards, Belk, Hunter & Kerr, El Paso, for appellees.
   OPINION

CLAYTON, Justice.

This case arose from the importation from Juarez, Chihuahua, Mexico for sale in El Paso, Texas of 112 head of Mexican cattle. The suit began when one Emilio Alvarez, a resident of Juarez, Mexico, filed, on April 17, 1965, in the District Court of El Paso County, an application for writ of attachment on the cattle, then in El Paso, naming Carlos Lightbourne, a custom broker, and B. C. Cline, manager of R. L. Zeigler Union Stock Yards, who were alleged in the application to have custody of the cattle in El Paso belonging to plaintiff Alvarez, and also naming as defendant one Jack Smith who was alleged to be indebted to Alvarez in the amount of $5,550.48, purchase price of the cattle, and stating further that Smith was about to remove the cattle from El Paso to another state in defraud of Alvarez, the said Smith having refused to secure his debt to Alvarez. Lightbourne and Cline were subsequently dismissed from the cause. Plaintiff Alvarez was the principal in an attachment bond dated the same date, and T. A. Merrill and F. A. Hernandez were his sureties. The writ of attachment was issued and the cattle were seized by the sheriff of El Paso County the same date. On April 20, 1965 the said Jack Smith filed in said cause his cross-action against Alvarez and the sureties on his attachment bond, alleging the above facts and that the issuance of the writ of attachment and seizure were wrongful in the following particulars:

(a) that Alvarez was not a citizen of the United States;
(b) that Smith was not indebted to Alvarez in any sum whatever; and
(c) that the affidavit for attachment was false in that Smith had purchased no cattle from Alvarez.

The cross-action further alleged the false affidavit which caused the levy and seizure of the cattle was knowingly and maliciously made by Alvarez to Smith’s damage in reputation, credit and standing as a cattle buyer and trader in the amount of $5,000.00, and resulted in the depreciation of the cattle in the amount of $1,120.00, plus exemplary damages of $10,000.00. The cross-action prayed that the writ of attachment be vacated and that the cattle be decreed to belong to Smith and that he recover actual damages of $6,120.00 and exemplary damages of $10,000.00.

On April 21st Alvarez filed what he termed his “Original Petition” alleging that he had sold the cattle to Smith on or about April 15, 1965 for $7,890.75, the cattle to be delivered to the custom broker Light-bourne, who was to pay all custom and brokerage charges and upon receipt of the total amount of the balance due on the sales price from Smith, to deliver the cattle to him. That Smith did pay $2,254.50 as brokerage and custom fees but failed and refused to pay the balance of the purchase price of $5,236.25 (amended to $5,636.35), but nevertheless the custom broker gave instructions to Cline, in charge of the stock yards, to deliver the cattle to Smith. That because of this, Alvarez claimed he was forced to bring the application for attachment at a cost of $1,500.00 and court costs, which, with the amount still owing on the cattle, amounted to the sum of $7,136.25, plus court costs, plus attorney’s fees of $750.00, for which he prayed judgment or foreclosure on the cattle and a deficiency judgment, plus exemplary damages against Lightbourne in the amount of $10,000.00.

On April 23rd the court, after a hearing and posting of $8,500.00 bond by Alvarez and his sureties, issued an order of sale and the cattle were sold by the sheriff for $8,750.00, which after costs, left a balance of $8,662.25 which was deposited in the registry of the court.

On April 27, 1965, Jack Smith filed his first amended cross-action in which he stated that he had bought the cattle from Mr. Stan Swauger of Phoenix, Arizona, and that he had paid the American custom duties on the cattle, plus $181.39 Mexican custom charges, for a total of $1,220.27. That he had also issued his draft to Swau-ger for $6,670.48, the balance of the purchase price of the cattle, but because of their seizure he caused this draft to be refused at the bank, but he had been out the custom duties, plus other expenses and attorney’s fees in addition to his expected profit on the cattle, in a total amount of $7,000.00, above the $5,000.00 damage to his reputation and $10,000.00 exemplary damages, for which he prayed judgment against Alvarez and his sureties, jointly and severally.

Also, on April 27th, Stan Swauger filed his petition in intervention, complaining of Alvarez and his sureties and alleging that he had purchased from a Mexican company known as Ganado y Carnes, and one Enrique Romay, reportedly the General Manager or President of the company, various lots of cattle including the cattle here involved, which he had sold to Jack Smith. Thereafter he had been contacted by Alvarez, who had represented himself as an agent of Enrique Romay, and informed him (Swauger) that the Mexican duties and expenses in the amount of $1,350.00 had to be paid before the cattle could be shipped to El Paso. Swauger alleged that he had wired this amount to Alvarez and directed that the cattle be shipped to the purchaser, Jack Smith. That the latter had issued his draft to Swauger in the amount of the balance of the purchase price, $6,670.48, but that this draft was dishonored after the cattle were seized under the falsely-obtained writ of attachment. In addition to this loss, intervenor claimed other expenses, attorney’s fees and damage to reputation totaling $13,020.48, plus $10,000.00 exemplary damages.

Trial was to a jury that answered, in response to three special issues, the following:

(1)that Emilio Alvarez had not sold the cattle to Jack Smith;
(2) that Jack Smith was entitled to $4,-500.00 for loss of expected profits, had not the writ of attachment been issued; and
(3) that Stan Swauger had incurred $750.00 expenses occasioned by the issuance and levy of the writ of attachment.

On this verdict the court entered the following judgment, after overruling motions for judgment'by Alvarez and his sureties, and Smith and Swauger:

By agreement of counsel, dismissed Cline and Lightbourne from the case.

That Emilio Alvarez take nothing in his suit against Smith.

That Jack Smith recover from Alvarez, Merrill and Hernandez, jointly and severally, the sum of $1,220.27, representing U. S. Customs duties plus $4,500.00 as found by the jury in answer to Issue No. 2, with interest on the total amount of $5,720.27 at 6% from April 17, 1966.

That Stan Swauger recover from Alvarez the sum of $6,670.48 representing the draft that was not paid, $1,350.00, representing Mexican Customs duties, plus $750.00 as found by the jury in answer to Issue No. 3 with interest on the total sum of $8,770.48 at 6% from April 17, 1966; that Swauger receive the $8,662.25 from the registry of the court derived from the sale of the cattle and an execution for the deficiency of $108.32 plus interest provided for above.

Appeal was taken by Alvarez, Merrill and Hernandez.

Appellants present five points of error. The first point complains of the action of the court in ordering the clerk to issue its check to intervenor Stan Swauger for the amount of the proceeds from the sale of the cattle, in violation of Article 291, Vernon’s Ann.Civ.St. This Article reads:

“ART. 291. Claimant’s bond and affidavit
“Any person other than the defendant may claim the personal property so levied on, or any part thereof, upon making the affidavit and giving bond required by the provisions of the title relating to the trial of the right of property.”

But intervenor here acted under authority of law as set out in Sections 125 and 126, 6 Tex.Jur.2d 660 and 661, Attachment, as follows:

§ 125 — -“A cause of action for wrongful attachment arises at the very instant when a wrongful seizure is made, regardless of whether enforcement of the claim is sought by action on the bond or otherwise.”
§ 126 — “The victim of a wrongful attachment need not resort to the statutory remedy of trial of right of property.”

Brown & Co. v. Rohr, 228 S.W.2d 322, 324 (Tex.Civ.App., 1950; n. w. h.). The pleadings and proof of intervenor certainly support this action and we therefore overrule the first point of error.

The second point of error charges error in entering judgment against appellants Alvarez, Merrill and Hernandez for $4,-500.00.

The third point of error asserts error of the trial court in entering judgment against appellants Alvarez, Hernandez and Merrill for the sum of $1,220.27. •

These two points of error treat the trial court’s entry of judgment in favor of Jack Smith and therefore will be discussed together. Smith’s amended cross-action was against Alvarez as principal and Merrill and Hernandez as sureties on the attachment bond. This was a remedy' available to Smith, among other remedies. See Half, Weiss & Co. v. Curtis, 68 Tex. 640, 5 S.W. 451. Also see 6 Tex.Jur.2d 664, 665, § 129, Attachment:

“§ 129. Election of remedies.
“Although the fact that the defendant replevied the attached property does not preclude him from maintaining a counterclaim for wrongful attachment, it is established that if wrongfully attached property has, without special damage thereto, been replevied by the owner, the latter may not sue for a conversion of the goods and recover their full value. And although partners may treat a levy on farm property as a conversion, they waive this remedy where they secure possession of the property by a motion to quash the writ and to abate the suit.
“A defendant in attachment is not required to elect between suing a plaintiff in attachment on his liability independent of the bond, and suing on the bond; he may, in an action for wrongful attachment, join the sureties on the attachment bond.”

The second and third points of error are overruled.

The fourth point of error charges error on the part of the trial court in permitting the introduction of defendant’s (and cross-plaintiff’s) Exhibits Nos. 6 and 7 over appellant’s objections, and the fifth point of error charges that the attachment bond is defective in that it is not made to a named defendant.

As to the fourth point of error, the exhibits complained of were customs agent’s invoices and the like, introduced to show the process employed by Ganado y Carnes in shipping cattle from Mexico to the United States for various purchasers. The introduction in evidence of these exhibits was objected to, but the grounds of objection are not clear from the record. In any event, we see no fundamental error in allowing these exhibits and overrule appellant’s fourth point of error.

As regards the fifth point of error, the attachment bond reads as follows:

Appellant’s objection states: “The attachment bond is defective in that it is not made to a named Defendant * * * Attachment bond should be made payable to the person against whose property the writ is issued.” The writ of attachment recites that the cattle in question were in the possession of B. C. Cline and belong to Jack Smith. The bond names these two defendants, and the case of Archenhold v. B. C. Evans Co., 11 Tex.Civ.App. 138, 32 S.W. 795, 796, cited by appellants, merely holds:

“ * * * That the grantee in an alleged fraudulent conveyance can be made a party to the suit in which the land has been attached, for the purpose of testing the validity of his claim, is now the settled practice in this state.”

We can see no merit to the sixth point of error and it is accordingly overruled.

Having examined all points of error and finding no error in this record, the judgment of the trial court is in all things affirmed.


author: DUNAGAN, Chief Justice.

text:
    SOUTHWESTERN BELL TELEPHONE COMPANY, Appellant, v. J. Harlan WEST et ux., Appellees.
    No. 299.
    Court of Civil Appeals of Texas. Tyler.
    June 22, 1967.
    Rehearing Denied July 13, 1967.
    J. Kearney Brim, Sulphur Springs, Larry Barnes, Dallas, for appellant.
    Smith, Johnson & McDowell, William McDowell, Sulphur Springs, Woodrow H. Edwards, Mt. Vernon, for appellees.
   DUNAGAN, Chief Justice.

This case is a proceeding in Eminent Domain to obtain a twenty feet wide easement across and under the land of appellees in Hopkins County, Texas, for the installation of an underground communications cable necessary in providing long distance telephone service to the public in Sulphur Springs, Texas.

The Commissioners in Condemnation, awarded appellees $300.00. Appellees appealed to the County Court of Hopkins County where trial was had with a jury and on the jury’s verdict, judgment was entered awarding appellees $9,031.20. From this judgment, the condemnor has appealed.

Appellant (condemnor) filed its original petition for condemnation on September 17, 1965. A hearing before the Commissioners in Condemnation was held on October 6, 1965, and the Commissioners made their award on October 8, 1965. Appellees timely filed their objection to the award on October 15, 1965.

Appellant took possession of the condemned property and made its deposit with the court on October 12, 1965.

Appellant filed among the papers in the case a written statement on October 18, 1965, which reads as follows:

The land involved in this case is composed of 22.2 acres located within the City Limits of Sulphur Springs, Texas, and although now unimproved and uninhabited, is zoned for industrial use. The north boundary line of the L & A Railroad track is the south boundary line of the land in question. Appellant condemned a strip of appellees’ land twenty feet wide and approximately 388 yards long, all of which abutted the L & A Railroad. The strip is .504 of an acre.

The trial in the County Court commenced on October 10, 1966. It was stipulated that the only issues involved were the amount of damages.

On cross-examination of appellees’ witness Lemon, their first witness as to damages, the appellant inquired about whether appellees’ damages would be less if ap-pellees had the right to place railroad spur tracts, roads, streets, (private and public) and drainage structures on the strip of land, to which appellees objected. One ground of their objections was that the written statement was not a part of appellant’s pleading.

Also, during cross-examination of appel-lees’ witness Bailey, appellees’ counsel stated in the presence of the jury that it was not true that appellees retained the right to place these structures upon the land here involved.

The next morning before the appellees rested, appellant requested leave to file its first amended original petition which adopted the written statement filed on October 18, 1965. The proffered amendment denied appellant the right of ingress and egress over the remainder of the 22.2 acres, and released to appellees special rights to use any of the surface of the strip being condemned for the construction of railroad spur tracks, roads, streets (public and private) or drainage structures. The trial court refused to permit appellant leave to file the amended petition.

We think it is apparent from the record that appellant in good faith was laboring ' under the impression that the written statement filed on October 18, 1965, was sufficient to constitute an amendment to its original petition and was all that was required of it to abandon and relinquish to the appellees the special rights to use any of the surface of the strip being condemned for the construction of railroad spur tracks, roads, streets (public and private) or drainage structures, and to deny appellant the right of ingress and egress over the remainder of the 22.2 acres. It was not until after the appellees began offering testimony that the appellant first learned that the appellees did not recognize or regard this statement as being sufficient to be considered a pleading or to accomplish the purpose as therein stated.

The appellant by its first point of error complained of the trial court’s action in refusing its leave to file the amended petition. Appellees say the trial court properly refused appellant’s request for leave to file the amended pleading because the amended pleading (1) would materially change the lawsuit; (2) would act as a surprise to appellees; and (3) would prejudice appellees.

It is a well recognized principle of law that a condemnor may, at any time, release rights acquired by a proceeding in Eminent Domain. In the case of Texas Power & Light Company v. Cole, 158 Tex. 495, 313 S.W.2d 524, (1958), the electric company filed a petition in condemnation to secure an easement for an electric transmission line and took possession of the condemned property on December 5, 1955, under an award made by the Commissioners in Condemnation. After the case had been appealed to the County Court at Law, the electric company offered a supplemental petition which allowed the landowners to remove sand and gravel from the condemned property until May 1, 1957. The trial court allowed this amendment and instructed the jury that they could not consider for damages any interference with the landowner's right to remove sand and gravel between the date the electric company took possession (December 5, 1955) and May 1, 1957. In allowing the electric company to amend the petition in condemnation and temporarily reduce the amount of property taken, the Supreme Court held:

«***‘***a condemner can abandon the taking of property, in whole or in part, after it makes its deposit and secures right of possession provided the status quo can be restored. * * * ’
* * * * * *
“ * * * the amendment was a relinquishment or abandonment of certain rights to which petitioner would have been entitled under the easement description contained in the original petition. Undoubtedly a condemner has the right to dismiss as to a portion of the land sought to be condemned or to relinquish rights originally sought by condemnation of an easement when this may be done without injury to the landowner. * * *
* * * * * *
“It is not the policy of the law to encourage economic waste. * * * A condemner should not be required to take
more land than it needs nor secure unnecessary easement rights, and prior to confirmation of the special commissioners’ award or other judgment of the Court, the condemning authority, in the absence of some showing of prejudice to the landowner (which we here fail to find) should be allowed to abandon such unnecessary lands or rights. * * *
“ ‘That the proper time and method of reducing the rights sought in a condemnation suit by the condemner would be at the trial of the issue of damages before a jury, and by the way of amendment to the petition, was held in Shell Pipe Line Corporation v. Woolfolk, 331 Mo. 410, 53 S.W.2d 917, 918, wherein the Court said that the condemner may appropriate less than the full rights available under the law, and if he does, that fact is a proper element to consider on the issue of damages; that his purpose to exercise less than his full rights should appear with a reasonable certainty “in the petition or be brought in the way of amendment thereto.” * * * f »

This decision was followed in State v. Nelson, 160 Tex. 515, 334 S.W.2d 788, (1960) wherein the court said:

“* * * Subject to jurisdictional limitations, there is no reason why the rule which permits pleadings to be amended should not apply to the proceeding after it has become a case in court. * * * It is settled, for example, that the pleadings can be amended in the county court to set up additional grounds for attacking the award. * * * Where the landowner will not be prejudiced, the condemning authority may also amend the description and abandon part of the land or rights which it had previously sought to condemn. * * * ”

See Rayburn, Texas Law of Condemnation, Sections 70(1) and 70(3).

It is clearly established by the above authority that a condemnor has the right to amend its pleading and take less. The only limitation of this right is that the landowner must not be prejudiced. As we view the record in this case, it is inconceivable to us that the landowners could have been prejudiced by the offer of appellant, by way of the amendment, to relinquish and abandon certain rights to appellees that would allow them to fully develop their land for commercial purposes which, according to their testimony, was the highest and best use of the land. The proffered amended pleading did not include some new and independent matters as would constitute a new cause of action or claims against appellees. The amendment would not have placed any greater burden of proof upon the appellees than the original pleading required. It simply relinquished and abandoned certain rights to which appellant (condemnor) would have been entitled under the easement description contained in the original petition. The appellant was attempting, by its amended pleading, to take less from the landowners and thereby mitigate its damages.

Appellees contend that the trial court properly exercised its discretion under Rule 63, Texas Rules of Civil Procedure in refusing appellant’s request for leave to file its amended pleading.

Request to file the amended pleading was made on October 11, 1966, one year subsequent to October 18, 1965, when the written statement by appellant relinquishing and abandoning certain rights to appellees was filed in the trial court in this case. Assuming without deciding that the written statement filed by appellant did not amount to an amendment of its original pleading in the case, as appellant apparently thought it did, at least the statement was notice to appellees that appellant did not require these rights and did not desire to purchase them and had no intention of taking any of the property rights mentioned in the statement.

It has been held in this state that as a general rule a party properly brought into the court is chargeable with notice of all subsequent steps taken in the cause down to and including the judgment, although he does not in fact appear and has no actual knowledge thereof. Chapa v. Wirth, 343 S.W.2d 936, 938 (Tex.Civ.App., 1961, Eastland, n.w.h.); 41 Tex.Jur.2d, page 538, Sec. 19, and 66 C.J.S. Notice § 12, page 648.

Under Rule 63 it is mandatory that leave shall be granted for an amendment to be filed within seven days of trial unless there be a showing that such amendment will operate as a surprise to the opposite party. If there is no surprise and the trial court denies the amendment, then there is an abuse of discretion.

The filing of this amendment would be prejudicial only if appellees show prejudicial surprise on the merits and then only when such surprise cannot be relieved by such postponement as seems to be just and advisable under all circumstances. Following Rule 63, T.R.C.P., under the heading “General Commentary,” Robert W. Stayton in discussing this rule said:

“ * * * The leave in any of the cases in which it is required is to be freely given unless the opposite party shows prejudicial surprise on the merits, and, I think, prejudicial surprise that cannot be relieved by such postponement as seems to be just and advisable under all circumstances.”

Under the record in this case, we do not believe the proffered amended pleading operated as a surprise to appellees. It is our opinion from an examination of this record that the trial court abused its discretion in refusing to permit the filing of the amended pleading. Even if the amended pleading did operate as a surprise to appellees, it was not such as to show prejudicial surprise on the merits or such surprise as could not have been relieved by a postponement of the trial to a time as would seem just and advisable under all the circumstances.

The trial court in refusing appellant leave to file the proffered amendment permitted the jury to consider and assess the damages incurred by the taking of the land by appellant without the benefit of appellant’s concessions to appellees of the right to place spur tracks, roads, streets (public and private) and drainage structures upon the land, which concessions would not have left appellees “cut off” from the railroad as stated by their witnesses.

From the record, it appears that the rights the appellant relinquished and abandoned, as set out in the above written statement of appellant, were made known to the special commissioners at the time of the hearing before them and subsequent to said hearing reduced to writing and filed among the papers in the case. Therefore, it appears from this record that the extent of the easement with wlrch the special commissioners were concerned was different from that considered by the jury in the County Court.

It is our opinion from an examination of this record and all the facts and circumstances therein shown, that the trial court abused its discretion in refusing to permit the filing of this proffered amendment.

It is further our opinion that this error amounted to such a denial of the rights of appellant as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment and requires a remand of this case. Rule 434, T.R.C.P.

In view of the disposition we have made of this case under appellant’s first point, it is unnecessary to discuss the other points of error presented.

For the reasons above stated, this case is reversed and remanded to the trial court for further proceedings.

SELLERS, J., not participating.


author: LANGDON, Justice.

text:
    ATLANTIC INSURANCE COMPANY, Appellant, v. H. L. FULFS et al., Appellees. H. L. FULFS et ux., Appellants, v. MILWAUKEE INSURANCE COMPANY et al., Appellees.
    Nos. 16844, 16845.
    Court of Civil Appeals of Texas. Fort Worth.
    June 23, 1967.
    Rehearing Denied July 14, 1967.

      Strasburger, Price, Kelton, Martin & Unis, and Royal H. Brin, Jr., Dallas, for Atlantic Insurance Co., appellant and ap-pellee.
    Nelson, Montgomery & Robertson, and Charles B. Russell, Wichita Falls, attorneys for H. L. Fulfs et ux., appellee and appellant.
    Fillmore & Fillmore, and H. Dustin Fillmore, Wichita Falls, for Milwaukee Insurance Co. of Milwaukee, Wisconsin, ap-pellee.
   OPINION

LANGDON, Justice.

This suit was filed by H. L. Fulfs and wife against Milwaukee Insurance Company of Milwaukee, Wisconsin, a corporation, one of the appellees, and Atlantic Insurance Company, a corporation, appellant, for collision damage to an automobile and for medical payments.

Prior to the occasion in question, Milwaukee had issued its family automobile policy to the Fulfs on an automobile owned by them and Atlantic had issued two of its Texas Family Automobile Policies of insurance to R. D. Wright. In one it agreed to pay for loss to a 1965 Plymouth Barracuda automobile in excess of the deductible amount of $50.00. In the other it agreed to pay all reasonable medical expenses incurred within one year from the date of accident up to $2,000.00 for each person. Each of these policies named R. D. Wright as the insured and each contained the following provision: “15. Assignment * * * if, however, the insured named in Item 1 of the declarations * * * shall die, this policy shall cover * * * (3) any person having proper temporary custody of an owned automobile, as an insured, until the appointment and qualification of such legal representative, and (4) under division 1 of Part II any person who was a relative at the time of such death.” This provision will hereinafter be referred to as paragraph 15.

Wright died, leaving a will bequeathing his Plymouth Barracuda automobile, covered by the Atlantic policies, to Mrs. Fulfs, his aunt. She acquired custody of the Plymouth after the death of Wright but prior to the time Wright’s will was admitted to probate. The sequence of events is summarized as follows:

September 10, 1965 — R. D. Wright died.

September 13, 1965 — Car delivered to Leva Fulfs. She and her husband went to Denton for the nephew’s funeral. While there she met with Ted Davis, named as executor, and Gerald Stock-ard, who had been her nephew’s lawyer and was the lawyer for the estate. The will was read and the car was turned over to Mrs. Fulfs.

September 19, 1965 — Car demolished and Leva Fulfs injured.

September 27, 1965 — 1. Will probated and Ted Davis qualified as independent executor. 2. Atlantic’s policies assigned to Ted Davis, executor, and transferred by agent of Atlantic.

October 25, 1965 — Atlantic policies assigned to Leva Fulfs, and transferred to her by an agent of Atlantic.

October 27, 1965 — Title to Plymouth was transferred to Leva Fulfs by the independent executor.

March 7, 1966 — Atlantic’s policies cancelled because Leva Fulfs was over 65.

Trial was to the court without a jury. Judgment was rendered for plaintiffs against Atlantic Insurance Company in the total amount of $5,320.30 plus interest and court costs. Recovery against Milwaukee Insurance Company was denied. Atlantic has appealed the judgment against it and plaintiffs have appealed limiting the scope of such appeal to the part of the judgment denying them any relief against Milwaukee, an appellee.

By three points of error Atlantic contends that under this record (1) Mrs. Fulfs did not have “proper temporary custody” pending the appointment and qualification of the executor, within the meaning of the policy provisions; (2) it was error to place the full loss against Atlantic assuming coverage on its part because the loss should be prorated with Milwaukee Insurance Company; and (3) the court erred in awarding an unsupported and excessive amount of attorney’s fees.

We affirm.

Coverage by Atlantic is claimed under the provisions of paragraph “15. Assignment,” the pertinent language of which is above set forth. Thus, the primary question to be resolved is whether or not Mrs. Fulfs, at the time of the accident, had ■“proper temporary custody” of the Plymouth “until the appointment and qualification” of the legal representative of the deceased.

Atlantic contends that Mrs. Fulfs had “permanent” rather than “temporary” custody of the car as the owner to whom it had been bequeathed. In support of this contention Atlantic argues that at the time the car was turned over to Mrs. Fulfs it was everyone’s (apparently a reference to the Fulfs, Davis, named executor, and Stockard, attorney for the estate) intention that it was being delivered to her as the owner, to be kept permanently by her. This. was because it had been determined that there were no debts of the deceased which would require resort to the car and thus it was not contemplated that Mrs. Fulfs would ever return it to Ted Davis, the executor. Stated another way, it is argued that Mrs. Fulfs was not given custody of the car to await appointment and qualification of the executor and then to turn the car over to him, but rather the personal representative named in the will already had possession and had turned the car over to her to keep permanently because it was willed to her and would not be needed for payment of any debts.

Appellant, Atlantic, contends that under Texas law Mrs. Fulfs became the owner of the Plymouth immediately upon the death of Wright, her nephew, and thus was the owner at the time of the accident, and cites Section 37 of the Probate Code, V.A.T.S., which provides: “When a person dies, leaving a lawful will, all of his estate devised or bequeathed by such will shall vest immediately in the devisees or legatees * * * it

It should be noted that Section 37 of the Probate Code further provides that upon issuance of letters testamentary or of administration upon any such estate, the executor shall have the right to possession of the estate as it existed at the death of the testator and that he shall recover possession of and hold such estate in trust for disposition in accordance with law. (Emphasis added.)

In Morris v. Ratliff, 291 S.W.2d 418, 421 (Dallas Civ.App., 1956, ref. n. r. e.), it was stated: “It is true, as appellant says, that when a person dies leaving a lawful will, all of his estate vests immediately in the devisees or legatees. Art. 3314, V.A.C.S. But the devisees take subject to the lawful administration of the estate and an executrix in her representative capacity, as part of her full administration of the estate, must secure and collect the assets for the estate in order to comply with the terms of the will and distribute the assets to the parties, including creditors entitled to receive them.”

Pursuant to Section 37 of the Probate Code, supra, and Sections 232 and 233 thereof, the personal representative of an estate, immediately upon receiving letters, shall take into possession the personal property, records, books, title papers and other business papers of the estate to later be delivered to the person or persons legally entitled thereto when the administration has been closed. He is required to use ordinary diligence to collect all claims and debts due the estate and to recover possession of the estate to which its owners have any claim or title. (Emphasis added.) See also 18 Tex.Jur.2d 309, 311 and § 353 and § 356, respectively.

It can be readily seen from the above provisions that the personal representative of the estate not only has the right to possession but the duty to acquire such possession.

The right of possession and control of both personal and real property of estates by executors and administrators is not limited by the fact that there are no debts or that the one claiming the property is the sole distributee. Whether the estate is solvent or insolvent does not affect the executor’s right of possession. The specific bequest of the car to her did not confer upon Mrs. Fulfs any control over the car pending probate of the will and transfer of the title to her through the personal representative of the estate at close of the administration.

It is immaterial that an heir or devisee is given or in some way obtains possession of his part of an estate prior to the probate of the will as did Mrs. Fulfs in this case. Her possession was temporary and under the circumstances proper. Unquestionably, her possession was subject to the executor’s right of possession and his right under such circumstances was enforceable by court order.

In the case of Freeman v. Banks, 91 S.W.2d 1078 (Tex.Civ.App., 1936, ref.), it was stated: “It is elementary that the executor has the right of possession of the estate. If, after the payment of all just debts owing by the estate, any property remains that has been specially devised to some person, or institution, it would be the duty of the executor to then deliver such property to the named devisee * * *. It is elementary that property of a deceased, going into the hands of either a devisee under the will, or to an heir by descent and distribution, is taken subject to the debts and costs of administration.”

“Although an independent executor is a creature of the will and not of the probate court, he is an appointee of the court in the sense that he may not function until the will has been probated * * *.

“After a will is admitted to probate * * * the judge has no discretionary power to refuse to issue letters to such person unless he is a minor or insane. * * * The fact that no debts exist * * * and that there is no necessity for an administration, does not affect the power or the duty of the county court to probate the will and grant letters testamentary to the executor named therein. The necessity for an administration is required to be shown only in the absence of a will. Articles 3356 and 3370, Vernon’s Ann.Civ.St. * * Cocke v. Smith, 142 Tex. 396, 179 S.W.2d 954, (1944); see also Boyles v. Gresham, 153 Tex. 106, 263 S.W.2d 935 (1954).

Under these holdings of the Supreme Court of Texas the judge must probate a will when offered for such purpose whether there is need for administration or not and irrespective of whether or not there are debts. The executor appointed under such a will has the same authority, rights and duties under the law as executors of estates which of necessity require administration and are burdened with debts.

In the Cocke case, supra, the court further held that since Cocke held the legal status “As such representative he is entitled to the possession of the property of the estate.”

The delivery of the automobile by Ted Davis to Leva Fulfs on September 13, 1965 did not divest him of the right to possession of the car upon probate of the will on September 27, 1965. Mrs. Fulfs’ possession, prior to the probate of the will, was necessarily temporary since it was subject to any demands which might later be made upon her by Ted Davis, once he had attained the legal status of personal representative of the estate on probate of the will.

The appellant, Atlantic, overlooks the possibility of unanticipated claims, debts or suits against the estate, which if established would have required all of the property of the estate, including the car, to pay off. It is to hedge against such unforeseen contingencies that the executor is given the rights and duties in connection with possession of such property.

Under the authorities it appears to us, as a matter of law, that Leva Fulfs had only “temporary custody” of the automobile since no one had authority to give it to her prior to probate of the will. See American Employers’ Ins. Co. v. Brock, 215 S.W.2d 370 (Tex.Civ.App., 1948, ref. n.r.e.); Laforge v. LeBlanc, 137 Me. 208, 18 A.2d 138 (1941).

In our opinion , appellant’s contentions and the arguments in support thereof are untenable and if upheld would nullify the purpose of such policy provisions as are designed to give coverage to relatives and other persons having temporary custody of the automobile until the appointment and qualification of a legal representative or until the policy is assigned to some person as provided by its terms. New Century Casualty Co. v. Chase, D.C., 39 F.Supp. 768, 772; Wilkins v. Inland Mutual Insurance Company, 4 Cir., 253 F.2d 489. The latter case involved a question of notice which is not present in the case at bar. See also 7 Appleman’s Insurance Law and Practice, pp. 272, 274, and footnote at page 275, which points up the difference in the older form of standard policy and the more modern forms of policies extending coverage to any person having proper temporary custody of the automobile.

The intention of the parties or their understanding as to whether Mrs. Fulfs’ custody of the car was temporary or permanent is not decisive and certainly Atlantic cannot vary or contradict the provisions of its policy and deny coverage because Mrs. Fulfs, at the time she received the car, or others may have thought her custody was permanent rather than temporary.

Holding as we do that the automobile in question was covered by the policies of the appellant, Atlantic Insurance Company, obviates the necessity of any discussion as to coverage by the appellee, Milwaukee Insurance Company, and the question of prorating the loss between it and Atlantic.

In our opinion the award of $950.00 as attorney’s fees is reasonable and supported by the record. According to his testimony the attorney expended in excess of twenty hours in preparation of the case for trial. He filed a controverting affidavit to Atlantic’s plea of privilege, participated in a hearing thereon and prepared and submitted an order for the court’s approval. He participated in the trial of the case commencing on October 18, 1966 and continued to final hearing on November 10, 1966.

See Articles 3.62 and 3.62 — 1, Insurance Code of Texas, V.A.T.S.; Southwestern Fire and Casualty Company v. Atkins, 346 S.W.2d 892 (Tex.Civ.App., 1961, no writ); American Indemnity Company v. Garcia, 398 S.W.2d 146 (Tex.Civ.App., 1965, Ref. n.r.e.); and Republic National Life Insurance Company v. Beard, 400 S.W.2d 853 (Tex.Civ.App., 1966, Ref. n.r.e.).

We overrule all points of error raised by the appellant, Atlantic, and the point of error raised by Fulfs, as appellants, relating to that portion of the judgment denying to them any relief against the appellee, Milwaukee.

Affirmed.


author: GREEN, Chief Justice.

text:
    Mary Lynn WALSHAK, Appellant, v. Justina WALSHAK, Appellee.
    No. 302.
    Court of Civil Appeals of Texas. Corpus Christi.
    June 22, 1967.

      O. F. Jones of Guittard, Henderson, Jones & Lewis, Victoria, for appellant.
    William Borchers, of Borchers & Borch-ers, New Braunfels, for appellee.
   GREEN, Chief Justice.

OPINION

This is a venue case involving Subd. 10, Art. 1995, Vernon’s Ann.Tex.St.

Plaintiff-appellee’s original petition, introduced in evidence, alleged plaintiff Mrs. Justina Walshak, a feme sole, to be the owner of certain cattle described in the petition; that defendant Donald J. Walshak was in possession of said cattle; and that defendant-appellant Mrs. Mary Lynn Wal-shak, a feme sole, was claiming ownership of an interest in the cattle. Plaintiff sought judgment against both of said defendants for the title and possession of said cattle, also prayed that the cloud on plaintiff’s title caused by appellant’s wrongful claim be removed, that writ of possession issue, and for general relief. The petition further alleged that a part of the cattle were located in Gonzales County. Testimony of the defendant Donald J. Walshak was that many head of the cattle were located in Gonzales County, and had been there since long prior to the time the suit was filed.

Appellant Mary Lynn Walshak filed her plea of privilege to be sued in Victoria County, where she resided. Appellee to retain venue in Gonzales County, relied in her controverting affidavit on Subd. 10, Art. 1995, V.A.T.S., as follows:

“10. Personal property. — Suit for the recovery of personal property may be brought in any county where the property may be or where the defendant resides.”

The controlling venue facts under Subd. 10, supra, are: (1) the petition must show that the suit is brought to recover personal property located in the county where the suit is filed, and (2) the plaintiff must prove that the property is located in such county; and provided the plaintiff meets such requirements, it is not necessary on the venue hearing that he prove by evidence facts constituting a cause of action for the recovery of such personal property. Langdeau v. Erwin, Tex.Civ.App., 367 S.W.2d 945, wr. dism.; Kirkland v. Kirkland, Tex.Civ.App., 324 S.W.2d 21; Hearn v. Frazier, Tex.Civ.App., 228 S.W.2d 582, writ dism.; Welch v. Scarbrough, Tex. Civ.App., 211 S.W.2d 390; Downing v. Slattery, Tex.Civ.App., 144 S.W.2d 371; Congleton v. L. Mundet & Son, Inc., Tex. Civ.App., 43 S.W.2d 1111, writ dism.; Southwest Nat. Bank v. Chapman, Tex. Civ.App., 266 S.W. 599.

Appellant, in its sole point of error, says that this is not a suit for the recovery of personal property, but is a suit to remove a cloud from title, and hence that Subd. 10, Art. 1995 is not applicable. Since the evidence shows beyond dispute that a large number of the cattle were in Gonzales County, we look only to the contents of plaintiff’s petition to determine whether this is a suit for the recovery of personal property. The pertinent material allegations of plaintiff’s petition are set forth above. It is our opinion that this was a suit for the recovery of personal property located in Gonzales County, and that under Subd. 10, Art. 1995, V.A.T.S., venue was properly retained in the district court of Gonzales County.

Judgment affirmed.


author: CLAUDE WILLIAMS, Justice.

text:
    Robert M. McGILL et ux., Appellants, v. MINYARD’S FOOD STORES, INC., Appellee.
    No. 16918.
    Court of Civil Appeals of Texas. Dallas.
    May 26, 1967.
    Rehearing Denied June 23, 1967.
    Charles D. Mayes and Ben Warder, Jr., of Carter, Gallagher, Jones & Magee, Dallas, for appellants.
    Edward E. Crowell, Jr., Gardere, Porter & DeHay, Dallas, for appellee.
   CLAUDE WILLIAMS, Justice.

Robert McGill, individually, and for his wife, Dorothy McGill, brought this action against Minyard’s Food Stores, Inc. seeking to recover damages for personal injuries which had allegedly been sustained by Dorothy McGill as a result of being struck by a grocery cart. It was alleged that Dorothy McGill was in one of the Min-yard’s Food Stores in Dallas as a business invitee when one of the employees failed to hold onto a grocery cart and pushed the same so that it struck and injured Mrs. Mc-Gill. The jury, in response to special issues submitted, found, inter alia, that (4) Roger Miller (an employee of Minyard’s) pushed the grocery cart in question; (S) that Miller failed to hold onto the grocery cart while pushing same; (6) that the conduct of Miller in failing to hold onto the grocery cart was negligence and (7) such negligence was a proximate cause of the occurrence in question.

Asserting that there was no evidence of probative force to sustain the jury’s answers to Special Issues 4, S, 6 and 7, Min-yard’s Food Stores, Inc. filed its motion for judgment non obstante veredicto. The court sustained the motion and rendered judgment that plaintiffs take nothing by their suit.

Appellants’ first five points of error attack the trial court’s action in sustaining appellee’s motion for judgment non obstante veredicto. They contend that there is evidence of probative force to sustain the jury’s answers to the only liability issues found against appellee. Appellants correctly state the rule governing us in our judicial review of the trial court’s action in setting aside the jury’s answers to the disputed issues. To sustain the action of the trial court in granting the motion we must determine that there is no evidence on which the jury could have made the findings relied upon. Moreover, our review of the testimony must be such that all testimony be considered in the light most favorable to appellants and every reasonable in-tendment deducible from the evidence is to be indulged in their favor. Burt v. Loc-hausen, 151 Tex. 289, 249 S.W.2d 194 (1952); Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547 (1962). We have, therefore, in obedience to these rules, carefully examined the entire record relating to the issues of liability which were disregarded by the trial court and having done so we agree with the lower court’s action and affirm the judgment.

The material facts relating to the issues of liability are without dispute. The Minyard’s Food Store involved in this case is located on Fitzhugh and Capitol Streets in the City of Dallas. In the front portion of the store are located four regular and one express check-out stands or stations where customers have their purchases checked and pay therefor. A customer entering the front door on Fitzhugh would be facing the check-out stands. The store uses grocery carts made of metal with a chrome type basket and swivel type rotating wheels which baskets weigh between 35 and 40 pounds. When not in use the grocery carts are placed in the front of the store for the convenience of customers. Ronald McDearmon was the manager of appellee’s store and Owen McKinney was assistant manager. There were a number of other employees working in the store, including Roger Miller, who regularly worked at Check Stand No. 2, being employed as a part time checker and Stocker in the store. He was not employed by appellee at the time of the trial.

Appellant Dorothy McGill testified that on September 1, 1964 she entered the store in question at about 6:00 or 6:30 P.M., to purchase two items of merchandise. It was necessary that she cash a check so that she could pay for same. As she entered the store she said there were very few people there and she began looking for the cage, just inside the door, to see if someone was there who could inform her about cashing a check. No one was in the cage so she turned to her right and walked towards a check-out stand where a man was checking groceries and another man was sacking the groceries. As she recalls, there was only one other customer at this stand who was being checked out at the time. She talked to the man who was sacking the groceries and asked him about cashing a check and the man informed her that the manager was working at the register so she waited until he finished his task. She said that while she was standing near the check-out counter conversing with the man about cashing a check, she felt something strike her in the left hip. Upon feeling this jolt to her body she immediately took hold of the counter with her right hand and grabbed the basket with her left hand as she observed it was a grocery cart that had struck her. She testified she was so shocked and startled when the basket or cart hit her that she turned to grab hold and discovered that there was no one holding onto the basket. As she turned she did see one of the young employees of the store with an apron on standing near the front door where she had entered. She later learned that his name was Miller. At this juncture she testified:

“Q. What was he doing when you first saw him?
“A. He had his head down and he was either putting something on or taking something off, or taking care of something on his hands, I just saw him with both hands working at both hands, and his head slightly down like he was — I thought it was a band-aid, he was trying to take off his finger, some kind of a bandage.
“Q. In which direction would his body have been facing when you first saw him ?
“A. He was facing me.
“Q. And did he ever look at you?
“A. I didn’t see him right then look at me.
“Q. When did you next see that man?
“A. As he walked over and started to move the basket.
“Q. Did he come take hold of the basket?
“A. Yes.”

Mrs. McGill testified that she had no conversation with the employee Miller at all and that she had never noticed him before this incident. She did not see Miller or anyone else handle the basket or push it prior to feeling it strike her. She did not know of her own knowledge what had happened to the basket or cart before it struck her.

Owen McKinney, the assistant manager, testified by deposition that he was present in the store on the occasion in question. He did not see the grocery cart come in contact with Mrs. McGill nor does he know anything about who pushed the cart, if it was pushed. At the time of the incident he was standing fairly close to Mrs. McGill and engaged in conversation with her concerning the procedure in cashing a check on an out of town bank. He was packaging groceries at the check stand and the store manager was running the cash register. He observed a pained look on Mrs. McGill’s face and later saw Roger Miller come up and take the basket away. He was not paying too much attention because he was concentrating on sacking the groceries and it was his impression that the store had a good many people in it at the time. He testified that the store had issued specific instructions for employees to hold onto the buggies or carts at all times rather than push them free.

Ronald McDearmon, the store manager, testified that at the time of the incident he was operating the cash register at the check-out stand and was busy at that time. He said that he did not see the cart before it came in contact with Mrs. McGill nor does he know who had hold of it or whether it was pushed. He heard an exclamation from Mrs. McGill and she told him that she had been struck by a buggy. He observed that she was holding onto a grocery cart and he asked her if he could be of assist-anee. He testified that Roger Miller came up about that time and put his hands on the buggy or cart and expressed regret that it did bump into Mrs. McGill and that he “was surprised that it did; I mean, it was purely accidental.”

Roger Miller’s deposition had been taken prior to the trial by appellants but such deposition testimony was not offered by either party. Neither did Roger Miller testify in person at the trial. No other employee or person in the store at the time of the incident testified.

The burden was cast upon appellants to establish by competent probative evidence a state of facts from which the jury might conclude and so find that appellee corporation, acting through its agents, servants or employees, was negligent on the occasion complained of and that such negligence was a proximate cause of Mrs. McGill’s injuries. We have concluded, and so hold, that appellants have failed to carry this burden. It has long been the established law in this state that negligence is never presumed and that the mere happening of an accident is no evidence at all of negligence or proximate cause. Rankin v. Nash-Texas Co., 129 Tex. 396, 105 S.W.2d 195 (1937); Texas & Pacific Coal Co. v. Kowsikowsiki, 103 Tex. 173, 125 S.W. 3 (1910); Houston Nat. Bank v. Adair, 146 Tex. 387, 207 S.W. 2d 374 (1948) ; Wells v. Texas Pac. Coal & Oil Co., 140 Tex. 2, 164 S.W.2d 660 (1942, opinion adopted); Leatherwood Drilling Co. v. TXL Oil Corp., 379 S.W.2d 693 (Tex.Civ.App., Dallas 1964, writ ref’d n.r.e.).

The mere expression of regret by one of the store employees and a statement that “it was an accident” certainly forms no basis for justifying the jury to conclude that the incident flowed from some act of negligence on the part of one responsible to the appellee corporation. Appellants argue that it was possible or easily probable that Miller pushed the cart or failed to hold onto it before it struck Mrs. McGill. There is absolutely no evidence of probative force that Miller ever had hold of the cart before it struck Mrs. McGill or that he did anything which caused it to strike her. Appellants’ argument is based upon nothing more than speculation or. surmise. Such argument must be predicated upon the assumption that Miller was in physical contact with the cart prior to the time it came in contact with Mrs. McGill. We find nothing in the record which would support such speculation or assumption. There is evidence that other people were in the store at the time and it might reasonably be argued that such other persons propelled the cart in such a manner as to cause it to strike Mrs. McGill.

Following the usual definition of negligence which was given to the jury by the court the jury had no evidence of probative force upon which to conclude that there was an absence of ordinary care by Miller at the time and on the occasion in question. Furthermore, under the definition of proximate cause as given by the court the jury could not possibly find evidence of probative force to justify its finding that any act or omission on the part of Miller brought about the alleged injuries to Mrs. McGill.

When we consider all of the testimony relating to the liability issues in the light most favorable to appellants the same does nothing more than raise a suspicion or surmise, and amounts to no more than a scintilla of evidence which has long been held to be insufficient to raise an issue of fact. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898). Finding, as we do, a total absense of evidence to create an issue of fact on the questioned matters, it necessarily follows that the action of the trial court in setting aside and disregarding the jury’s answers to those issues, as it was required to do pursuant to Rule 301, Texas Rules of Civil Procedure, was entirely correct.

Our action in overruling appellants’ first five points of error, and therefore affirming the trial court’s judgment, renders it unnecessary that we pass upon or consider appellants’ sixth, seventh and eighth points in which they complain of the inadequacy of the jury’s finding of damages to Mrs. McGill in the sum of $500, and also appellants’ points 9 through 17, all dealing with procedural questions. However, we have carefully examined all of appellants’ points and conclude that they are all without merit and they are overruled.

Finding no error reflected in this record the judgment of the trial court is affirmed.

Affirmed.